by | Oct 3, 2023

The Nebraska Court of Appeals, in Prince v. Walmart Assocs., No. A-23-044 (Neb. Ct. App. Sep. 26, 2023), affirmed a Workers’ Compensation Court decision to dismiss a claim on the basis that, in reporting the injury two months late, the employee failed to provide timely notice of the injury to her employer.

The employee alleged that she slipped on a wet floor and twisted her leg sometime in January 2021.  She did not immediately report this incident, instead self-treating with over-the-counter pain relievers.  She alleged that she began to walk with a limp after the accident and that the limp progressively got worse over the next two months.  Near the end of March 2021, a member of management noticed her limp and asked her about it, which led to the employee’s first notice of injury.

Initially, the employer covered the injury claim.  In September 2021, medical providers determined that the employee required replacement of her left hip.  In May 2022, the employee returned to her physician complaining of pain in the other hip, resulting in a recommendation for surgery to replace the right hip, the physician opining that the pain on her right side could have been caused by compensating from the left hip for so long.  It was at this time that the employer disputed the claim, alleging that the employee had failed to provide adequate notice of injury.

When the case went to trial, the employee testified that she did not initially report the injury because she thought that management would not send her to the doctor. Testimony from members of management indicated that, even before the injury, the employee walked slowly, and thus her limp was not initially a drastic change in her ability to walk.

The Workers’ Compensation Court dismissed the employee’s case, in part because she had not provided notice of her injury as soon as practicable.  Per Nebraska statute, “[n]o proceedings for compensation for an injury under the Nebraska Workers’ Compensation Act shall be maintained unless a notice of the injury shall have been given to the employer as soon as practicable after the happening thereof.”  Neb. Rev. Stat. § 48-133.

The Court of Appeals affirmed the Workers’ Compensation Court’s dismissal of the claim, reasoning that the employee’s delay potentially compromised the employer’s ability to investigate or defend against the employee’s claim for workers’ compensation benefits.  The Court remarked that had the employee immediately reported her injury and sought treatment, a medical professional could have examined the nature and extent of the injury and caused the employee to have surgery sooner, which may have prevented the subsequent injury to the other hip, which the doctor opined was caused by compensating from the left hip for so long.  The Court also commented that had the employer learned of the accident earlier, it may have been able to mitigate one or both of the injuries by restricting her work activity.

Because the employee did not report her injury as soon as practicable, the Court of Appeals affirmed the dismissal of the employee’s claim due to inadequate notice.  This case highlights the importance of providing notice of an injury and the potential ramifications of failing to do so.  More importantly, for employers, this demonstrates the importance of having a robust and known reporting system to be able to clearly document those circumstances when an employee fails to provide notice.

This blog post was written by Adam Barrett, a law student and future member of Baylor Evnen Wolfe & Tannehill's workers’ compensation practice group, and attorney Paul Barta.  For questions regarding this case or Nebraska workers’ compensation, please contact Mr. Barta at 402-475-1075.