Nebraska Supreme Court Further Erodes the Statute of Limitations

by | Jul 11, 2014

The Nebraska Supreme Court made it easier for injured employees to recover benefits for old work-related injuries in its June 27, 2014, decision Lenz v. Central Parking System of Nebraska, Inc., 288 Neb. 453 (2014).

On December 20, 2008, Lenz developed frostbite on his right foot while working as an outdoor parking lot attendant for Central Parking System of Nebraska. Until mid-2009, Central voluntarily paid for the medical treatment of his frostbite injury, including two surgeries. In April 2009, Lenz moved to Colorado, where he continued to treat, but he submitted his bills to a Colorado indigent care program rather than to Central’s workers’ compensation insurance carrier. He returned to Nebraska in February 2012 and continued treatment. He developed an infection in his foot and a partial amputation of his fifth metatarsal was performed in October 2012. In January 2013, Lenz filed a petition seeking temporary total and permanent partial disability benefits.

At issue before the Workers’ Compensation Court was whether Lenz’ petition was time-barred by the applicable statute of limitations. Neb. Rev. Stat. §48-137 provides: “In cases of personal injury, all claims for compensation shall be forever barred unless, within two years after the accident, the parties shall have agreed upon the compensation payable under the Nebraska Workers’ Compensation Act, or unless, within two years after the accident, one of the parties shall have filed a petition…. When payments of compensation have been made in any case, such limitation shall not take effect until the expiration of two years from the time of the making of the last payment.”

Nebraska case law recognizes two exceptions to §48-137. In Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662 (1997), the Court set out the first exception as the following: “where the injury is ‘latent and progressive’ and is not discovered within 2 years of the accident which caused the injury.” The second exception is noted in White v. Sears, Roebuck & Co., 230 Neb. 369, 431 N.W.2d 641 (1988), in which it was found that: “where there is no dispute about the compensable nature of the injury which the worker sustained, and the employer has voluntarily paid compensation to the injured worker, this right to receive additional compensation in the event of a material increase in disability resulting from the injury is still available.” In the preceding example, “the petition must be filed within 2 years from the time the employee knows or is chargeable with knowledge that the employee’s condition has materially changed, and there has been such a substantial increase in disability as to entitle the employee to additional compensation.”

The Court stated that, in Lenz’s case, it was “concerned only with whether Lenz’ petition was filed within 2 years of a change in condition that (1) was material and (2) resulted in a substantial increase in disability as to entitle him to additional compensation.” The Court found that Lenz met these requirements and affirmed the award of medical benefits and permanent partial disability benefits.

This case lowers the bar for injured employees who wish to file for workers’ compensation benefits when over 2 years have passed since compensation was paid. For questions about the statute of limitations and its exceptions, please contact Sara Hughes at or any of the Baylor Evnen workers’ compensation attorneys at 402-475-1075.