Employee Fails to Disclose Preexisting Lifting Restriction to New Employer, Is Denied Benefits

In Fleck v. Tractor Supply, Inc., Doc. 210 No. 0723 (November 2014), the plaintiff had a 50-pound lifting restriction from a previous work-related accident that he did not disclose to Tractor Supply upon hire. He told Tractor Supply that he left his job with his previous employer because the job was eliminated, but in fact, his job ended because the employer could not accommodate the lifting restriction. Additionally, the plaintiff had settled his claim for the prior injury near the time he was hired by Tractor Supply, so the restriction was “fresh in his mind.” The plaintiff was also aware that the job with Tractor Supply would require lifting 50 to 75 pounds regularly. After being hired, the plaintiff aggravated his preexisting injury.

Tractor Supply admitted that the plaintiff was injured in the course and scope of his employment, but argued that his claim was barred by willful negligence pursuant to Neb. Rev. Stat. §48-102, which states that “…it shall not be a defense (a) that the employee was negligent, unless it shall also appear that such negligence was willful….” Tractor Supply argued that the plaintiff “knowingly lifted 70 to 90 pounds on a regular basis.” The key issue was whether the plaintiff’s actions were willful; in other words, whether they were either a deliberate act or were performed with reckless indifference to the plaintiff’s safety. The Nebraska Workers’ Compensation Court noted that “'[r]eckless indifference to safety’” implies a reckless and careless spirit or a willingness to take a chance which is intentional, and not merely negligence.” Additionally, in order for an employee to be “reckless,” he or she must “manifest reckless disregard for consequences coupled with consciousness that injury will naturally and probably result.” Estate of Coe v. Willmes Trucking, L.L.C., 268 Neb. 880, 689 N.W.2d 318 (2004).

The Court ultimately concluded that the plaintiff engaged in willful negligence by intentionally lifting 90 pounds at Tractor Supply while knowing that there was a substantial risk of injury. The plaintiff was barred from receiving any workers’ compensation benefits for the accident with Tractor Supply.

For more information about the willful negligence defense under Neb. Rev. Stat. §48-102, please contact Sara Hughes at shughes@baylorevnen.com or call (402) 475-1075 to speak with any of the Baylor Evnen Workers’ Compensation attorneys.