Nebraska Court of Appeals Decision regarding Notice Defense
On August 16, 2016 the Nebraska Court of Appeals issued an opinion in Mohammed Ali v. JBS Distribution regarding notice and what constitutes “as soon as practicable.”
On August 10, 2011 Ali slipped and fell while working. Immediately following his fall, Ali was treated on-site by JBS’ nurse, who treated Ali’s right hand, right forearm and left middle finger for abrasions and cuts. On February 3, 2012 Ali completed a second Report of Employee Incident form indicating that when he fell on August 10, 2011 he injured his back and his whole body hurt.
A year later Ali filed a petition for workers’ compensation benefits seeking compensation for injuries to his low back, legs, left shoulder, right hand and body as a whole as a result of the August 10, 2011 fall. JBS alleged that Ali failed to give timely and sufficient notice of his alleged injuries. Following trial the workers’ compensation court ruled that Ali failed to prove he suffered any injuries as a result of the work accident and that Ali failed to provide JBS with timely notice of his injuries, as he only reported minor scrapes to his hand and did not mention back, shoulder or full body pain until 6 months later.
Neb. Rev. Stat. § 48-133 provides that a claimant cannot maintain an action for compensation unless he or she has given the employer written notice of the injury as soon as practicable. Want of such written notice shall not be a bar to proceedings under the Nebraska Workers’ Compensation Act, if it be shown that the employer had notice or knowledge of the injury. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009) (emphasis added).
The Court of Appeals found that even if they accepted Ali’s argument that he was unable to accurately report his injuries on the day of the accident due to language barriers, he still failed to explain the ensuing six month delay before he finally informed JBS of the full extent of his injuries. As such, Ali failed to report his injuries “as soon as practicable after the happening thereof,” as required by Neb. Rev. Stat. § 48-133. The Court of Appeals has defined “practicable,” to mean “capable of being done, effected or put into practice with the available means, i.e., feasible.” Williamson v. Werner Enters., 12 Neb. App. 642, 652, 682 N.W.2d 723 (2004).
The Court of Appeals decision in Ali v. JBS Distribution confirmed prior decisions that a claimant must report an injury “as soon as practicable;” however, it also confirmed there is no exact definition regarding what is practicable. The Court ruled in line with prior decisions that a 6 month delay in reporting, without at least demonstrating a reason for the delay in reporting, is not “practicable.” Additionally, Ali further demonstrates that a claimant is responsible for reporting their “injuries,” and not just of an accident.
If you have any questions regarding notice defense in Nebraska, or what may constitute “as soon as practicable,” please do not hesitate to contact one of our Workers’ Compensation attorneys, Paul Barta at pbarta@baylorevnen.com or Thomas Shires at tshires@baylorevnen.com, or call (402) 475-1075 to speak to any of our Nebraska workers’ compensation attorneys.