The wife and children of a state trooper who killed himself after a traumatic event related to his job, do not qualify for workers' compensation death benefits, Nebraska's Supreme Court has ruled.

Mental injury or brain changes caused by a mental stimulus that resulted when the trooper was told he had committed a fatal error, do not fit the comp law's requirement for physical injury or occupational disease, the court found in the case of Loree Zach v. Nebraska State Patrol.

The court's decision last Friday means Nebraska remains one of five states in the nation that does not permit workers' comp claims that involve mental injury.

In its ruling, the high court noted, concerning mental illness, that "a persuasive argument can be made that work-related injuries such as that alleged in this case should be compensable."

However, that decision involves "economic and social policy considerations that fall within the province of the Legislature," the court found.

Trooper Mark Zach fatally shot himself Sept. 27, 2002, two weeks after he made a stop and ticketed a man for carrying a concealed pistol, which later turned out to be stolen in a burglary. The gun was not confiscated because the proper serial number was not given to a dispatcher "due to a miscommunication or error," according to the court record.

Later, Trooper Zach was advised by State Patrol brass that two people he had stopped, and the weapon he spotted, were involved in a bungled bank job that killed five people.

In making their comp claim, his family had argued he became distraught over this news. They argued for benefits, claiming that being told of his error was a sudden stimulus or "accident" creating a personal injury by causing his brain to undergo "physical changes" leading to his suicide. The family also contended that stress of his employment resulted in mental disease leading to his suicide.

However, the court found "disability due to occupational disease is compensable only if it results from violence to the physical structure of the body."

Lincoln, Neb., attorney Dallas Jones, with the Baylor, Evnen, Curtiss, Grimit & Witt firm--who submitted a friend-of-the-court brief on behalf of Nebraska business and insurance interests--said that based on precedent, the high court's decision "was the right one."

If the state ventures into the realm of mental claims, "the place to do it is in the legislature, not the judicial system," adding that "whether you like it [the comp law] or not, the Supreme Court is not the place to change it--the legislature is."

Mr. Jones said he had made this argument in his brief. He saw the ruling as "consistent with all decisions over the past 60 years," concerning the statute.

He said at this point there is little opportunity for a legislative change because a deadline for filing bills has passed, although one could be attached as a rider.

However, he noted that State Sen. Steve Lathrop, D-Omaha, who represented the Zach family as a private attorney, was quoted in the Omaha World-Herald as saying he would ask fellow lawmakers if the matter should be taken up next year.

Special Reports /

No Comp Claim For Mental Illness, Neb. High Court Rules

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