State News : Nebraska

It goes without saying that an employer cannot adequately investigate or pay workers’ compensation benefits if it has no awareness that an accident occurred in the first place. For over a century, the Nebraska Workers’ Compensation Act has included a requirement that an employee must give notice of an injury to his or her employer “as soon as practicable” before benefits can be awarded. Good v. City of Omaha, 102 Neb. 654, 655-56, 168 N.W. 639 (1918). Indeed, the current codification of the notice requirement is found in Neb. Rev. Stat. § 48-133, but the operative language has not changed: an employee must give notice “as soon as practicable.”

The purpose of the notice requirement is based on the idea that a person who wants to hold another accountable or liable for his injuries must give that person notice of said potential liability. In this way, the statute has always contemplated than an employer is entitled to an early investigation into the nature and extent of the alleged injury so that he may “investigate the facts and preserve his evidence.” Good, 12 Neb. App. at 646, 682 N.W.2d at 727.

Notice is essentially a two-part test. First, the Court must decide as a matter of fact when notice was first provided to the employer. In other words, the Court must first identify what date the employer was aware of a potential work injury. To that, recall that an employee must provide notice of an injury, not merely notice of an accident. Williamson v. Werner Enterprises, Inc. 12 Neb. App. 642, 682 N.W.2d 723 (2004). In addition, while the initial language of the statute discusses that notice must be in writing, oral notice is sufficient if it is shown that the employer has actual notice or knowledge of the injury. Perkins v. Young, 133 Neb. 234, 274 N.W. 596 (1937).

A few additional points to recall in regard to what constitutes sufficient notice. First, the employee must provide notice to the “employer.” Caselaw has clarified that an “employer” includes the employee’s manager, foreman, supervisor, or superintendent. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006). An employee is not necessarily required to tell the employer that the injury is a result of a work accident. If a “reasonable person” would conclude that the injury is potentially compensable as a result of a work accident, it is the employer’s burden to investigate the matter further. If the employer fails to perform that investigation and that is why it was not aware of a work-related injury, the employer’s failure to investigate will not act as a bar to the employee’s right to benefits. Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995).

After the Court factually determines when notice was provided, the second question is whether that notice was given “as soon as practicable” which is a question of law. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009). The Nebraska Supreme Court has defined the phrase “as soon as practicable” as meaning “capable of being done, effected, or put into practice with available means, i.e., feasible.” Snowden v. Helget Gas Products, Inc., 15 Neb. App. 33, 721 N.W.2d 362 (2006). Historically, convincing the compensation court to dismiss an employee’s Petition on the basis that notice was not “as soon as practicable” was difficult if the delay was less than five months. This was because of the Nebraska Court of Appeals decision in Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004). In Williamson,  the Court of Appeals held that an employee’s failure to provide notice of an injury for approximately five months was not “as soon as practicable.”  Following Williams, notice issues were often raised by Defendants, but commonly only when the delay in reporting extended several months.

Fifteen years later, the issue of notice was again before the Court of Appeals in the case of Bauer v. Genesis Healthcare Group, 27 Neb. App. 904, 937 N.W.2d 492 (2019).  At the trial level, Judge Fitzgerald dismissed Bauer’s Petition noting that his delay of 39 days before giving notice was not “as soon as practicable” under § 48-133. On appeal, the Court of Appeals affirmed the dismissal. In the decision, the Court cited Larson’s treatise on workers’ compensation law which stated: “The purposes of the notice requirement are first, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury.” Citing 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 126.01 (2003).  The Bauer Court continued, “the question is not about how many days, weeks, or months elapse from the time of the injury until the reporting date, but whether the claimant reported the injury ‘as soon as practicable’ under the specific facts and circumstances of this case.”

Since the Bauer decision, notice arguments have been on the rise in the compensation court, and the recent trial decisions confirm these arguments are successful more frequently than they were even five years ago. With the right facts, employers can and should allege that an employee failed to give notice of an injury as soon as practicable.

To successfully argue there is a lack of timely notice, an employer should first understand the employee’s anticipated testimony regarding when he or she claims notice was provided. As Judge Martin pointed out, “Resolution of the notice defense rests primarily on the credibility of the plaintiff. Various factors go in to this determination including … corroboration of his statements from the evidence offered by the parties.” Espinoza v. Reiman Corp., 2015 WL 5566477 (Neb. Work. Comp. Ct.) (J. Martin). More often than not, an employee will testify that he or she gave timely oral notice of an injury and that his or her supervisor failed to investigate further. Indeed, it’s only on rare occasions that an employee admits he failed to provide notice of an injury. See Settje v. Walmart Associates, Inc., 2021 WL 4202842 (Neb. Work. Comp. Ct.) (J. Fridrich).

More commonly, an employer needs to present evidence to discredit the employee’s testimony that notice was timely provided. This evidence can be presented in a number of different formats. For example, an employer should call the supervisor or manager that the employee alleged she gave notice to (assuming the manager actually does dispute that testimony). Other evidence the Court found relevant to a notice dispute includes:

·         Statements made by plaintiff to medical providers on intake forms admitting he had not reported his accident to his employer;

·         Evidence the employee continued to work full duty without missing work and without any noticeable issues;

·         Confirmation that Plaintiff was not working on the day he allegedly gave notice; and

·         Documents showing the Plaintiff submitted his medical bills to his personal health insurance despite having prior workers’ compensation claims where his treatment was paid by the employer

After developing evidence regarding the factual question of when notice was provided, an employer should take additional steps to determine whether that notice was given as soon as practicable. Employees often put forth two arguments to convince the Judge that the delay in reporting was still as soon as practicable. In Klausen v. Commonwealth Electric Company, 2021 WL 880880 (Neb. Work. Comp. Ct.), Judge Hoffert held that a delay of 21 days was reasonable because the employee testified that he thought his injury would get better. After feeling like he had given it “adequate” time to heal on its own, the employee provided notice to his employer immediately thereafter. Judge Hoffert felt that testimony was consistent with claimant’s reports to his medical providers and therefore, he opined that a delay of 3 weeks was not untimely even under Bauer. Alternatively, relying on historic caselaw, employees also push the Court to find that delays of less than five months are still not “untimely.” See Reimers v. Rosens Diversified, Inc., 2021 WL 1514033 (Neb. Work. Comp. Ct.)(J. Block)(holding a delay of 13.5 weeks was not untimely). To contradict this argument, an employer should rely on the language in Bauer discussing the purpose of the notice requirement – to give the employer the chance to “investigate the facts and preserve his evidence.” Good, 12 Neb. App. at 646, 682 N.W.2d at 727.  In some cases, a delay of only a few days may very well not be “as soon as practicable.”

An employer should never underestimate the importance of the notice requirement. Even a lack of notice for a week or two may not be “as soon as practicable” with the right supporting facts. Likewise, it cannot be emphasized enough that lack of timely notice may be relevant to other issues in the claim including whether an accident even occurred, or the claimant’s overall credibility. The current trend in the compensation court decisions certainly indicates that notice issues are becoming a hotly contested issue, and therefore warrant careful consideration by adjusters and defense attorneys alike.

If you have questions about a potential notice issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

On the corner of my desk sits a coffee cup that reads: “A good lawyer knows the law; a great lawyer knows the Judge.” At first blush, the cup is just meant to garner a laugh or two. For those of us who practice Nebraska workers’ compensation law, however, the quote has a more practical meaning.

If you’re familiar with the work comp system in Nebraska, you know that there are only seven Judges appointed to hear all disputes that arise under the Nebraska Workers’ Compensation Act. With a work force population of just over 1,022,000, it’s no secret that the seven Judges are certainly kept busy. In 2020 alone, there were over 119 workers’ compensation trials. Each trial resulted in a written decision where the Judge was tasked with applying the law to facts. This is in addition to the hundreds of motion hearings that the Judges heard.

Compare these numbers to the only 20 workers’ compensation related opinions that were released by the Nebraska Court of Appeals and Supreme Court in 2020. It doesn’t take a scientific calculator to see that there are drastically more trial court decisions every year than there are appellate level decisions. So why is this significant, and what does my coffee cup have to do with this? Ponder this: suppose a lawyer only reads the appellate court decisions that come out every year. There’s no disputing it’s important to read those cases – after all, law established by the Nebraska Supreme Court, or the Court of Appeals is in fact “stare decisis” and is therefore binding law. But contained in the 119 trial court decisions is equally (if not more) valuable information. Contained in those 119 trial court decisions are the thoughts, opinions, and legal interpretations of the only seven people who decide workers’ compensation cases. While all seven of the workers’ compensation judges are tasked with holding plaintiffs and defendants to the same statutory law, that doesn’t necessarily mean the judges are perfect clones who handle and evaluate their cases in the same exact way. It can and frequently does happen that the judges dispute how a particular statute should apply, or what exactly is binding case law. How Judge Fitzgerald interprets Form 50 rules may not necessarily be the same as Judge Martin or Judge Block. Indeed, how Judge Hoffert interprets the Supreme Court’s holding in Picard v. P&C Group 1 may differ from Judge Fridrich’s interpretation of the exact same case. And that’s how it clicks: A good lawyer knows the law; a great lawyer knows the thought process of the judge who will ultimately apply it.

After researching, reading, and studying every single trial level decision written over the last several years, it’s time to share the wealth of that information with you. Written for lawyers, adjusters, employers, or even just the lay person who wants to learn more about workers’ compensation law in Nebraska, the CPW Compendium series is meant to be a tool to help educate others about the patterns being seen at the trial court level. While trial court decisions may lack the fanciness of being “stare decisis,” make no mistake that knowing your judge is one of the most valuable tools a Plaintiff or Defense attorney can and should have before ever evaluating or trying a case. After all, being a good lawyer is merely knowing the law. Being a great lawyer is knowing the judge who applies it.

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NEBRASKA NEWS

NEBRASKA SUPREME COURT 

In Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (2016), the Nebraska Supreme Court determined counterclaims are not permissible in workers’ compensation cases.  In the case, claimant voluntarily dismissed his Petition, but the Court allowed the case to continue as the employer filed a counterclaim.  On appeal, the Court held that because counterclaims “are not part of the pleading scheme, there is no procedure enabling a plaintiff to admit or deny the substantial averments of a counterclaim, and no procedure by which a plaintiff can state his or her contention with reference to any additional matters in dispute as disclosed by the counterclaim.”  Further, allowing the suit to proceed on an employer’s counterclaim violates the claimant’s right to voluntary dismiss an action without prejudice before the final submission of the case to the court under Neb. Rev. Stat. § 48-177.

Practice Tip: Interestingly, while not judicially efficient, the Court did imply that the employer has the option of filing a Petition to determine the rights of the parties in lieu of filing a counterclaim.  So, if a case is not proceeding or claimant intends to move for dismissal without prejudice under Neb. Rev. Stat. § 48-177, the employer should consider filing a Petition. 

For more information regarding Nebraska news and updates please contact Jennifer Caswell orDanielle Jones in our Omaha, Nebraska office at 402.505.4630 or Jennifer.Caswell@Ritsema-Lyon.com and Danielle.Jones@Ritsema-Lyon.com.

NEWS

RITSEMA & LYON WEBINAR – MEDICARE SET ASIDES

Ritsema & Lyon is hosting a webinar on Medicare set asides.  The webinar is scheduled for Thursday July 23, 2015 from 9:00 a.m. - 10:30 a.m. MDT.  Delores Dafoe will be discussing the ins & outs of preparing and handling MSAs.  Check out the Events section of our website, www.Ritsema-Lyon.com, for more information and to register.  Please contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.

22^nd ANNUAL SEMINAR

Ritsema & Lyon’s 22^nd Annual Workers’ Compensation Seminar will be held on Friday, August 28, 2015, at the Doubletree by Hilton Hotel in Denver. Full itinerary and invitation coming soon.  Contact Jennie Smith atJennie.Smith@Ritsema-Lyon.com or 303.297.7275 with any questions.

NEBRASKA UPDATE

NEW LEGISLATION PASSED

LB480, discussed in our May 2015 newsletter was passed.  The changes are as follows:

• Benefits can be denied when an employee knowingly and willfully made false statements regarding his or her physical or medical condition by acknowledging that he or she is able to perform the essential functions of a job based on the employer’s job descriptionwhen such misrepresentation caused further injury.

• Employers are not responsible for any finance charges or late penalty payments as a result of medical services rendered by a provider.

• The interest rate applicable to late payments is now 6 percentage points above the bond investment yield, as published by the U.S. Secretary of Treasury, which is currently 2.137 percent.

• Workers’ compensation trust investment rules were changed to expand investment options.

NEBRASKA OPINIONS

The case of Canas-Luong v. Americold Realty Trust, 22 Neb. App. 999 (2015), confirmed that an employee is not at MMI until all conditions are at MMI and no permanency is due for one condition until all conditions are at MMI.  The trial court found claimant was not at MMI for her psychological injury and awarded ongoing TTD, but also awarded PPD for an upper extremity impairment.  The Court of Appeals reversed the award of the member impairment, noting that not only was the employee not at MMI for all conditions, that impairment may be factored into her overall loss of earning capacity once she did reach MMI for all conditions pursuant toBishop v. Specialty Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (2009), andMadlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).

TALES FROM THE TRENCHES

The Omaha office successfully defended an attempt by a plaintiff to strike a counterclaim filed by the employer.  Filing counterclaims is a useful procedural tool to ensure a hearing on the merits is had if either party believes one is necessary, and is very valuable.  A different trial judge recently struck a counterclaim, which created some question on whether the practice could continue.  The favorable ruling supports its use and stems the concern that the Court as a whole may shift to disallow it.

For more information regarding counterclaims contact Jennifer Caswell in our Omaha, NE office.

Jennifer.Caswell@Ritsema-Lyon.com or 402.505.4630

Effective January 1, 2015, the mileage rate is $0.575.  The maximum benefit rate for accidents occurring on or after January 1, 2015, is $761.00

Our Omaha office has a new address effective January 14, 2014.  The new address is 17330 West Center Road, Suite 110-355, Omaha, NE 68130.  All phone and fax numbers remain the same.  Please update your records!

Jennifer Caswell successfully defended a claim arguing the injury was temporary and minor.  The judge restricted claimant to benefits already paid and denied additional extensive temporary benefits and potential permanent benefits.  Ms. Caswell also successfully defended a permanent total disability claim brought by a 49 year old claimant, thereby avoiding large permanency exposure.  Judge Fitzgerald also declined to award any future medical treatment in that case.

Ritsema & Lyon is proud to announce U.S. News & World Report selected us as a 2014 Tier 1Best Lawyers® “Best Law Firm” in Workers’ Compensation Law – Employer.  This is the second year Ritsema & Lyon received this recognition.  Here is just one sampling of some of the great things our clients had to say: “Ritsema & Lyon is the household name for workers’ compensation law in the community. Their attorneys are of the utmost quality with customer service being a top priority… They are truly a top notch firm.”  We are deeply appreciative to our clients for their feedback.  We strive to provide this type of service to each and every client.  Receiving recognition based on such positive feedback is a great honor!

Jennifer Caswell andErin Fox successfully obtained a reversal of the trial court’s award of medical and indemnity benefits to the claimant following an appeal. The trial court awarded additional medical evaluation and ongoing temporary total disability benefits. The Nebraska Court of Appeals agreed with the employer’s argument that there was insufficient evidence in the record to support the trial court’s finding that the employee’s work caused her injury. The Court also agreed that some portions of the trial court’s decision were clearly erroneous. Therefore, the decision was reversed in full and no benefits were due.
Roness v. Wal-Mart Stores, 21 Neb. App. 211 (2013).

The trial court was presented with two theories of recovery: a specific incident or repetitive trauma.  Presenting both theories is permissible under Nebraska law.  The Court found that the trial judge only expressly addressed the specific incident claim, and it remanded the case for a reasoned decision pursuant to Rule 11, which required a specific finding on claimant’s alternate theory of recovery that repetitive trauma caused her injury.