Failing to meet the Worker’s Compensation Act requirement as outlined in Part I can result in some serious repercussions.  A Nebraska producer who fails to comply with even one of the Worker’s Compensation Act’s requirements can lose his/her exempt status and become liable under the Act. If you do become liable under the Act, and have a worker’s compensation policy in place, the Act provides the employee’s exclusive remedy. This means, among other things, that the employee cannot sue you in civil court.

The more realistic scenario, however, is that you typically have not had to purchase worker’s compensation insurance and do not have a policy in force. However, you may still be protected if you met all of the requirements listed in Part I.

On the other hand, if you did not meet all of the requirements, and do not have a worker’s compensation policy, the employee is not limited by the Act.   Consequently, the employee gets to choose whether to take worker’s compensation benefits or sue you in civil court.  If the employee chooses to take the benefits, he/she does not have to prove that you did anything wrong.  If the employee sues you in a civil court, he/she would have to prove that you did do something wrong, but may recover more than under the Act, such as damages for pain and suffering. These “soft” damages are often worth significantly more than the employee’s medical expenses and lost wages compensated under worker’s compensation.

In addition, in civil court you may lose certain defenses that you would otherwise have. For example, the jury would not be able to consider whether the employee was negligent in causing his/her injury.  And if your employee knew what he/she was doing was dangerous, but did it anyway and got injured, the jury also would not be able to consider this the employee’s “assumption of the risk.”

The loss of these defenses could significantly increase the chances a jury would rule in the employee’s favor. In addition, if you do not have a worker’s compensation policy in effect, you could become subject to personal liability, allowing the employee to collect a verdict from your personal assets (such as farm land or equipment).

If you have any doubts, questions, or concerns about your status under the Act, what steps you need to take to protect yourself, or other aspects of the Worker’s Compensation Act, you should speak with your attorney.

Cathy Trent-Vilim

(About the Author: Cathy Trent-Vilim is an attorney at Lamson, Dugan & Murray.  Cathy has experience handling agriculture related litigation including issues regarding crop insurance, worker’s compensation, and anhydrous ammonia leaks.)