NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
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Effective January 1, 2023, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,029.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2023 (https://www.wcc.ne.gov/home/court-news/2022-6-news).
While litigation is by nature adversarial, reaching a settlement agreement can be one of the most rewarding moments. However, several recent decisions in the Nebraska Workers’ Compensation Court have been a gentle reminder that reaching a dollar figure in terms of a settlement agreement is only the first step of an entire process, a process which deserves equal attention by the defense attorney.
On a global scale, one of the more unique aspects of the Nebraska Workers’ Compensation Act is the creation of vocational rehabilitation benefits. A primary purpose of the Act is restoration of an injured employee to gainful employment. When an injured employee is unable to perform suitable work for which he or she has previous training or experience, the employee is entitled to vocational rehabilitation services “as may be reasonably necessary to restore him or her to suitable employment.” The rules and regulations for vocational rehabilitation benefits can be found at § 48‑162.01. Generally speaking, before vocational rehabilitation benefits are awarded, the employee must prove that he or she has permanent restrictions or disability. This is because, absent permanent impairment or restrictions, the worker is fully able to return to any employment for which he or she was fitted before the accident, including the occupation held at the time the injury occurred. If an employee is able to work, he or she is not entitled to vocational rehabilitation.
There are two ways an employee can ask for vocational rehabilitation services. First, he or she may simply request these benefits at trial. However, an employee may also wish to request vocational rehabilitation services before trial or when litigation hasn’t been filed. This article focuses on the latter. The first step is for an employee to ask the employer if it will stipulate to a particular vocational counselor from the approved list of counselors provided by the Court. If the employer either does not agree that the employee is entitled to vocational rehabilitation benefits or will not agree to the proposed counselor, the employee may file a Request for a Vocational Counselor through the Court. At that point, the Vocational Rehabilitation Section of the Court will either grant the request and assign a counselor, or it may deny the request. If the employer does not feel that an employee is entitled to vocational rehabilitation benefits as a matter of law, it may file a Motion to Quash the appointment.
There are many reasons why an employee may not be entitled to vocational rehabilitation benefits. The first is a failure to show “prima facie” evidence of both a qualifying injury resulting from an accident, and corresponding permanent impairment and/or permanent restrictions. The Latin phrase prima facie means “first impression.” Stated another way, the prima facie standard means the employee only has to put forth enough evidence to show the Court that he/she may prevail on the issue – the Court will not actually decide if it agrees with that evidence.
This “prima facie” standard has been the center of several recent trial level decisions in the last year and therefore warrants a closer look at what the judges are saying about an employee’s entitlement to vocational rehabilitation. Before discussing the first decision, I should note that a common misconception is that an employee must have permanent work restrictions and that an impairment rating alone is not enough to support an award of vocational rehabilitation benefits. This is incorrect. See Font v. JBS USA, L.L.C., 2021 WL 1185840. The Nebraska Court of Appeals recently confirmed that, while creating a vocational plan absent permanent work restrictions may be “difficult,” it’s not necessarily legally impermissible. Stated another way, the Court can choose to award vocational rehabilitation benefits absent any evidence of permanent restrictions. This is precisely what Judge Fitzgerald did in Font. He awarded vocational rehabilitation benefits based on the employee’s 11% permanent impairment to her arm. However, just because a judge can doesn’t necessarily mean the judge must award benefits.
Judge Hoffert’s April of 2022 decision in Sorensen v. Sarpy County confirms this statement. Judge Hoffert fully recognized the employee had permanent impairment ratings for both ears, but after examining the evidence, he held, “there is no credible evidence at this juncture to quantify just how plaintiff’s medical impairments impact or diminish his ability to earn an income.” Judge Hoffert therefore declined to award vocational rehabilitation benefits as he wasn’t convinced the employee’s hearing loss meant he was not capable of performing suitable employment.
Judge Fridrich made a similar holding to that of Judge Hoffert in his 2019 decision in Rhodman v. White Trucking, LLC. In that case, the employee presented evidence of an impairment rating to his knee, but he did not have any permanent work restrictions. After declining to award vocational rehabilitation benefits, Judge Fridrich cited that a lack of permanent restrictions would result in a vocational counselor performing “unnecessary work at a cost to [the defendant].” He continued, “It seems more prudent and cost effective for there to be work restrictions in place before the costs of a vocational rehabilitation counselor are incurred.”
Judges Coe, Block and Martin have not directly analyzed vocational rehabilitation benefits in this context in the last few years, however, it should be noted that Judge Martin has discussed the “prima facie” standard as needing to be aligned with the “beneficent purpose of the Act.” Where the purpose of vocational rehabilitation benefits is to return employees to gainful employment, it’s a safe statement to say that Judge Martin will closely analyze the evidence and, if an employee presents credible evidence that he or she cannot return to suitable employment because of an accident-related injury, Judge Martin is likely to award vocational rehabilitation services.
Another common reason that vocational rehabilitation services are denied is the failure of the employee to show he or she cannot perform “suitable work.” In 2021, Judge Block recognized that an employee testified he could not use his shoulder which he claimed impacted his ability to work. However, the employee’s work record showed he had in fact returned to work after his accident without any apparent difficulties. In light of the same, Judge Block declined to award vocational rehabilitation services. Judge Stine made a similar opinion in August of 2019 when he held that the only evidence before him showed that the employee had no apparent issue returning to her pre-accident employment for some six months before she voluntarily resigned, and she failed to otherwise explain why she could not return to that job.
A final misconception is that vocational rehabilitation benefits are only eligible for employees who suffered whole body injuries. This thought is misapplying a separate role of vocational counselors. In workers’ compensation cases, vocational counselors are often asked to establish a vocational rehabilitation plan and/or assess an employee’s loss of earning capacity. While it’s true that an employee must have a whole-body injury in order to request a loss of earning power capacity evlauation, that does not apply to vocational rehabilitation services. All of the judges fully recognize this position and have been quick to reject any argument to the contrary.
Where vocational rehabilitation issues have been appearing more and more frequently in the Court, it’s important to understand both the legal requirements and each judge’s unique view of the evidence required from the employee to show a “prima facie” entitlement to vocational rehabilitation services. Knowing the unique viewpoints of each judge not only allows an employer to properly set reserves, but it also helps the employer construct an appropriate defense it if believes an employee is not entitled to benefits.
If you have questions about a potential vocational rehabilitation 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.
At the heart of almost every trial level decision is a dispute between two medical experts. In Nebraska, unless the character of an injury is objective and plainly apparent (for example, an amputation), an injury is a subjective condition and the employee has the burden of proof and persuasion to establish the causal relationship between the accident and the injury through expert medical testimony. Caradori v. Frontier Airlines, Inc., 213 Neb. 513, 329 N.W.2d 865 (1983). As a general rule, the Nebraska Workers’ Compensation Court is not bound by the usual common law or statutory rules of evidence. This means that expert Daubert challenges do not exist in the compensation court like they do in the civil courts. However, a few rules do apply to expert medical opinions in the Nebraska Workers’ Compensation Court.
First, only certain types of medical providers can provide legally sufficient causation opinions. Physical therapists, PAs, APRNs, and speech pathologists are a few of the more common specialties that cannot, as a matter of law, provide legally sufficient causation opinions. Lounnaphanh v. Monfort, Inc., 7 Neb. App. 452, 583 N.W.2d 783 (1998). Additionally, even a qualified medical expert cannot provide expert testimony or opinions if he or she is not in possession of facts which will enable him or her to express a reasonably accurate conclusion. Haynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015). Stated another way, the expert must have enough facts to show that his or her opinion is not merely guess or speculation. Finally, because of unique evidence rules in the compensation court, it’s rare that a medical expert testifies in person at trial. More often than not, physician’s provide opinions in written reports and letters. There are no magic words that an expert medical provider must use, however, some language is legally insufficient. For example, a doctor’s use of phrases like “could”, “may” or “possibly” lacks the definiteness required to support an award. Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754 (1992).
Assuming the medical expert provides a legally sufficient causation opinion which satisfies the above, it ultimately becomes the prerogative of the assigned judge to decide which expert is more persuasive. But what exactly makes one doctor’s opinion more persuasive than another? What factors do the different judges find persuasive? At the outset, it should be acknowledged that each case is unique, and the judges will closely analyze the facts of each case. There’s certainly no way to predict with any level of certainty which doctor a judge will find to be more credible. However, there are notable trends to consider when attempting to assess if your expert opinion is going to be more credible than your opponents.
First and most obviously, what is the provider’s specialty? As a matter of law, both a chiropractor and a neurosurgeon can opine on causation of a head injury, but commonly, the judges will find the latter to be more credible in light of the additional specialized education and training required. Along the same line, a pulmonologist tends to be more credible than a general practice or family medicine physician in lung injury cases.
Secondly, what other information in the record tends to support or disprove the expert’s opinion? More commonly than one may guess, an expert will provide an opinion based on an accident description which is completely different than the employee’s own testimony at trial. Even less blatant differences between the provider’s opinion and the employee’s testimony are relevant. In 2021, Judge Block discredited an expert’s causation opinion because it discussed how a particular mechanism of injury would cause an immediate injury and pain, but that directly contrasted with the employee’s own testimony that his pain started gradually at a later date.
Similarly, lawyers sometimes fail to provide the expert with adequate information from the record. In 2019, Judge Stine held that a defense medical examiner’s opinion was “rendered unreliable” because he was not provided with a highly important post-accident medical record. Similarly, Judge Fridrich completely ignored a treating physician’s opinion because it failed to recognize or discuss any of the employee’s past medical treatment. Just recently, Judge Martin also discredited an expert’s opinion because the attorney did not tell the doctor that the treating physician previously found the condition to be unrelated to a work incident. If the physician doesn’t have the benefit of the full record, it certainly makes the opinion less credible.
Judges will also examine how the expert’s opinion compares to the daily treatment notes, and the overall presentation of the employee in the courtroom and on surveillance. Routine “physical examinations” in the treatment notes and physical therapy notes are often overlooked but can be strong pieces of evidence when disputing the nature and extent of a particular injury. By way of example, Judge Martin discredited an employee’s expert because he discussed the mechanism of injury as involving blunt force trauma, yet the emergency room records from the same day indicated the employee had no visible bruising. This is particularly true with scheduled member injuries. Frequently, an impairment rating will be based on things like a range of motion, but a review of the treatment notes may show the employee had full range of motion for months before being placed at MMI. Likewise, an expert who provides a permanent restriction of no sitting for more than an hour will leave the judges questioning that opinion if the employee sits comfortably during a three-hour trial. Indeed, a party whose expert relies on objective medical findings and evidence tends to be more successful than one whose opinion relies on subjective complaints, (though that’s certainly not always the case, especially if the judges find the employee to be credible).
In cases involving pre-existing conditions, judges will not find it highly relevant for doctors to conclude that an accident did not aggravate that condition if the employee had no treatment for years before the incident. In 2020, Judge Coe opined that a lack of evidence of medical treatment by an employee in the year before the incident is a strong indication that the accident caused an aggravation of a pre-existing condition rather than a recurrence. Attempting to persuade the judges otherwise has proven to be a difficult task.
Above all, the judges care about how well the physician explains his or her opinion. Every year, the judges openly speak about their views on check-box reports. While there are certainly valid reasons to use a check box report, a lawyer cannot expect to be successful if causation is only explained by a simple check mark next to the answer “yes” or “no.” Judge Hoffert explained it best when he wrote that a check box report, without any supporting information, simply lacks the kind of detail required on the “critical element” of causation. It is no secret that judges are not medical doctors. They therefore depend on the doctor to not only provide an opinion, but also explain the facts, information, and research which supports that conclusion. Using check box reports, one sentence opinions, and completely ignoring the “bad” facts in a case are quick ways to reduce the value of an expert’s opinion.
Almost as important as the factors the judges are considering when deciding between two experts is a quick discussion of what type of information isn’t relevant. If you’ve seen any courtroom TV dramas, you may be surprised to hear that the compensation court is much less contentious. In recent years, no judge has ever discredited an expert because he or she was paid for the time spent formulating that opinion. It’s well recognized that physician’s time is valuable and both parties frequently have to pay for an opinion. Another factor rarely discussed is that a defense medical examiner may only have the opportunity to examine the employee one time. While it’s certainly true that a treating physician may be more credible because he or she examined the employee over a number of months, a defense medical examiner is rarely discredited simply because he or she wasn’t afforded that same opportunity. Unlike what you may see on TV, the judges also don’t discuss what medical schools one particular expert went to over another. While a specialist may be given more credit, no judge has ever discredited an expert because of his or her chosen medical school or training. Again, it’s worth repeating that judges care most about the substance of the opinions and don’t focus on unrelated red herrings.
It’s worth repeating that these trends aren’t a hard science. Judges decide cases based on the facts of each case. Each of the trends discussed above certainly has an exception. However, these trends are important factors to consider when predicting the likelihood of success at trial and determining whether a supplemental opinion from your expert may be necessary.
If you have questions about a potential expert 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.
Nestled towards the end of the Nebraska Workers’ Compensation Act is Neb. Rev. Stat. § 48-162.01 which establishes an employee’s rights to vocational rehabilitation benefits in Nebraska. However, a recent Nebraska Supreme Court decision has significantly muddied the waters by relying on this statute to allow an employee to essentially relitigate compensability of a prior injury.
The Nebraska Supreme Court’s (“NESC”) decision in Spratt v. Crete Carrier, 311 Neb. 262 (2022) has left defendants questioning what truly constitutes a “final” award. This history of the Spratt case started in 2016 when a driver injured his thoracic and lumbar spine. At the time of trial, both parties presented expert medical evidence which confirmed Spratt’s thoracic strain had resolved without any evidence of permanency. The compensation court therefore only awarded him additional lumbar related medical treatment. Six weeks after the award, Spratt’s doctor sought permission to treat his thoracic back pain, but the defendant declined, citing the finding in the original award. Roughly a year and a half after the original award, Spratt’s doctor placed Spratt’s lumbar condition at maximum medical improvement (“MMI”) and again noted that his thoracic spine continued to be symptomatic. The doctor also offered a causation opinion attributing the thoracic condition to the original work accident. When the defendant filed a modification to cease temporary benefits, Spratt responded by requesting a modification of the original award so that he may receive treatment for his thoracic spine.
The compensation court rightfully questioned whether it had authority to “re-visit” Spratt’s request for treatment for his thoracic condition. Indeed, in Nebraska, a party who disagrees with an order or award must challenge that opinion by either: (1) appealing to the Nebraska Court of Appeals or Supreme Court under § 48-170, or (2) requesting a modification within 14 days of the award under § 48-180. A party who argues the employee’s condition substantially changed after an award must rely on § 48-141 which allows a modification on the grounds of an increased or decreased incapacity due solely to the injury. Spratt neither appealed nor requested a modification of the original award under § 48-141 or § 48-180. In light of the same, the compensation court held it did not have the statutory authority to “re-visit” an issue that had been previously adjudicated at a prior hearing.
Spratt appealed and the NESC advanced the appeal to its docket. For the first time, Spratt argued that § 48-162.01(7) allowed the compensation court to award thoracic treatment. After discussing the importance of finality, but also highlighting the “beneficent” purpose of the Act, the NESC reversed the compensation court and held that it had the power under § 48-162.01 to “modify the original award.”
Before discussing the context of the Spratt decision, a bit of a history lesson is in order. There’s no question that § 48-162.01 establishes most of the procedures and processes applicable to vocational counselors. At issue in this blog post is the text found in subparts (6) and (7). The exact text can be found here. Both sections use the phrase “physical and medical rehabilitation services.” The question then is what the Legislature intended by including “physical and medical rehabilitation services” in a statute reserved for vocational rehabilitation benefits. There’s no dispute that Neb. Rev. Stat. § 48-120 provides the compensation court with the authority to award medical treatment, including treatment that is “physical and medical rehabilitation.” During testimony of a 1969 amendment to § 48-162.01, a workers’ compensation judge testified to the legislature that vocational rehabilitation and “physical or medical rehabilitation” were two very different things, yet rather than remove the language in subparts (6) and (7), the Legislature has continually retained it. To be clear, while the language has been kept, it has rarely ever been amended or discussed beyond renumbering or grammatical changes. In fact, the 1993 version of § 48-162.01 includes almost the exact same wording of what is found currently in section (6).
One could argue that, at the time § 48-162.01 was drafted, the Legislature recognized the interplay between one’s ability to return to work and certain types of medical rehabilitation. In 1993, § 48-162.01 actually stated in part that vocational “specialists shall continuously study the problems of rehabilitation, both physical and vocational…” (emphasis added). Likewise, in the medical field, “physical and medical rehabilitation services” commonly refer to the practice of medicine which involves a multifactorial approach to restoring function. These services sometimes include medical treatment that isn’t necessarily medication or physical therapy. One could argue then that the use of the phrase “physical and medical rehabilitation” may simply have been a way of ensuring that an employee receive more unique kinds of treatment if necessitated to accelerate an employee’s return to gainful employment.
With this brief history in mind, fast forward to the late 1990s when the NESC decided Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996). In that case, the compensation court awarded a vocational rehabilitation plan which ended in August of 1994, but the end date was based on a miscalculation by the vocational counselor. There was no question that the actual end date should have been in December, but the employee failed to appeal or otherwise challenge that decision. Therefore, at a later hearing, the compensation court extended the vocational plan through December. The employer appealed. Reversing the compensation court’s decision, the NESC held that the court was without statutory authority to make such a change respecting vocational rehabilitation.
In response to Dougherty, the 1997 Nebraska Legislature amended § 48-162.01. The amended language can now be found at the end of subpart (7) and reads: “The compensation court or judge thereof may also modify a previous finding, order, award, or judgement relating to physical, medical, or vocational rehabilitation services as necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or as otherwise required in the interest of justice.” When introducing the amendment, the Senator proclaimed the intent of the bill was specifically to “allow the modification of a vocational rehabilitation plan by the Court after the award has become final for the purpose of restoring the employee to gainful and suitable employment or as otherwise required in the interest of justice.” Business and Labor Committee, 95th Leg., 1st Sess. (Jan. 27, 1997) (emphasis added).
One can fairly argue that, if the Legislature didn’t intend for the 1997 amendment to apply to prior awards of medical benefits, the amendment shouldn’t have said, “relating to physical, medical, or vocational rehabilitation services.” There’s very little information explaining how this exact text was selected by the drafters, but it’s unquestionable that the debate focused on vocational rehabilitation plans. Also, don’t forget that drafters of amendments prefer consistencies in the way statutes are drafted. As noted above, don’t forget that § 48-162.01 had consistently used the phrase “physical and medical rehabilitation services.” Whether moot language or not, the drafters in 1997 would have been encouraged to maintain consistencies by using this same language in the post-Dougherty amendment.
After being amended in 1997, the court’s review of § 48-162.01 almost exclusively involved vocational rehabilitation disputes. For example, in 2007, the Nebraska Court of Appeals addressed McKay v. Hershey Food Corp., 16 Neb. App. 79 (2007). In that case, despite having a permanent injury with permanent restrictions, the compensation court did not award the employee any vocational rehabilitation benefits because he remained gainfully employed at the time of trial. Two years later, after the defendant’s company shut down, the employee requested vocational rehabilitation benefits. Denying the motion, both the compensation court and the review panel held that § 48-162.01 was inapplicable because “to invoke subsection 7, a prior award of vocational rehabilitation services must have been made.” On appeal, the Nebraska Court of Appeals affirmed the denial. The holding in McKay still dictates that the compensation court cannot award vocational rehabilitation benefits which were not expressly provided for in the original award.
Relevant here is an unpublished decision in 2016, Mischo v. Chief School Bus Service. In Mischo, an employee received an award of benefits for a cervical injury, but the compensation court did not expressly award any future medical treatment. Four years later, the plaintiff filed a motion and asked the court to award future medical treatment for his neck. In doing so, the plaintiff relied on § 48-162.01. The compensation court held: “The provision at issue is simply intended to permit the compensation court to modify rehabilitation plans in response to changed circumstances following the entry of the initial plan.” It continued, “Plaintiff cannot use the language of the last sentence of § 48-162.01(7) to expand the Court's authority to grant additional benefits that were not awarded in the original award.” An appeal followed, but the Court of Appeals affirmed the judge’s decision.
The NESC in Spratt recognized the McKay decision and the legislative history in response to Dougherty, but nonetheless held that asking for thoracic spine treatment was not a request for new benefits, but instead, a “modification of medical rehabilitation services that the compensation court had already awarded him.” Stated another way, the NESC held that Spratt only requested a change in the “extent” of medical rehabilitation provided for by the original award. Because Spratt had been awarded treatment for his lumbar spine, the NESC held that treatment for his thoracic spine was not a “new” benefit. By taking this approach, the NESC approved of a very broad and arguably unsupported reading of § 48-162.01(7).
The NESC provided very little context as to how the award of medical treatment for Spratt’s thoracic spine was not “new.” It wrote, “[Defendant] argues that the compensation court cannot modify an award to include any medical rehabilitation services that were not specifically included in the prior award, regardless of how similar the services were to those awarded in the prior award. Under this rationale, the compensation court would be incentivized to broadly include all hypothetical medical rehabilitation services (no matter how redundant or speculative) in order to ensure it can modify the award later if necessary.” However, the Court seems to miss the critical issue, and it confuses the manner in which the court awards future medical treatment. First, the critical issue in Spratt was not necessarily the type of medical treatment requested by the employee; it was the fact that he requested treatment for an entirely different body part. An injury to the thoracic spine is not the same as an injury to the lumbar spine just like an injury to the hand is different than an injury to the finger. Additionally, the NESC seemed to forget that the compensation court had previously held Spratt’s thoracic injury was only temporarily exacerbated by the work accident. By allowing him to “modify” the prior award, the NESC allowed Spratt a second chance to relitigate an injury that had been previously resolved by the compensation court. A fundamental rule in all legal proceedings is the idea of finality. As the NESC quoted, “Litigation must be put to an end, and it is the function of a final judgment to do just that.” Black v. Sioux City Foundry Co., 224 Neb. at 828, 401 N.W.2d at 682 (1987). In this case specifically, the employer is prejudiced by now having to relitigate a thoracic injury that had previously been resolved.
Part and parcel of the NESC’s confusion seems to be a misunderstanding as to how “medical rehabilitation services” are awarded. After a trial, the compensation court does not detail in vain each specific type of future medical treatment that is being awarded. In fact, the NESC has previously made it clear that an employer may be liable for medical treatment “even if the necessity for a specific procedure or treatment did not exist at the time of the award.” See Sellers v. Reefer Systems, Inc., 283 Neb. 760, 811 N.W.2d 293 (2012). In light of those decisions, it’s entirely unclear what concerns the NESC had when it said, “the compensation court would be incentivized to broadly include all hypothetical medical rehabilitation services (no matter how redundant or speculative) in order to ensure it can modify the award later if necessary.” The compensation court certainly does not need to provide all hypothetical services that could be needed. Instead, the compensation court need only determine the nature and extent of the pled injuries, and, if the employee has permanent injuries, whether he or she is entitled to future medical treatment for said injuries.
To illustrate the concerns created by this holding, if Spratt files a motion and requests additional medical treatment for an entirely new body part completely unrelated to the spine, say his head or perhaps a scheduled member like his knee, would § 48-162.01 allow such an argument so long as he can prove it arises out of the original work accident?
Procedurally, this matter will now return to the compensation court. Because the NESC only held that the compensation court has the authority to “re-visit” Spratt’s thoracic treatment, the judge will still need to determine whether the employee satisfied his burden of proof and persuasion on a factual basis that he requires additional thoracic treatment to be restored to gainful and suitable employment. However, the implications of the Spratt decision may continue to haunt defendants and efforts should be made both judicially and legislatively to return § 48-162.01 to its original purpose of addressing vocational rehabilitation benefits.
If you have questions about a potential modification 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.
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.
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