Plaintiff’s 10 Month Delay in Reporting Injuries Found to be Untimely

In March, the Nebraska Workers’ Compensation Court ruled in Vallin v. Nebraska Beef Ltd., Doc. 208 No. 0299, 2014 WL 1045700, that Plaintiff’s act of waiting 10 months to report his alleged work-related injuries to his employer provided the employer with a sufficient notice defense. Vallin alleged he injured both shoulders and his neck in an accident through his employment with the employer on February 17, 2006. He also alleged he injured both shoulders and his neck due to the repetitive nature of his job with the employer on May 8, 2011.

The employer accepted Vallin’s February 2006 claim and paid benefits. The last payment of benefits occurred in October 2009. Vallin filed his Petition on June 26, 2013. Vallin argued that his claim was not barred by the statute of limitations, which requires that a Petition be filed within 2 years of the last payment of benefits, because Vallin’s injuries were latent and progressive. The 2-year limitations period contained in Neb. Rev. Stat. §48-137 is tolled when a claimant suffers a latent and progressive injury. Gloria v. Nebraska Public Power Dist., 231 Neb. 786, 438 N.W.2d 142 (1989). The statute will not begin to run until it becomes, or should have become, reasonably apparent to the claimant that a compensable disability was present. Id. The burden of proving the latent and progressive nature of an injury is on the employee. Maxey v. Fremont Department of Utilities, 220 Neb. 627, 371 N.W.2d 294 (1985). The Workers’ Compensation Court found that Vallin knew as early as late 2008 or early 2009 that he was having additional difficulties with his shoulders arising out of his employment and therefore it “cannot fairly be argued that plaintiff’s injury was dormant or latent and did not manifest itself until sometime within two years of June 26, 2013.” His claims related to the February 2006 accident were therefore barred.

The employer further argued that Vallin’s claims regarding the May 2011 injuries were barred because Vallin failed to give timely notice of his injuries. Under Neb. Rev. Stat. §48-133, 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.” §48-133 also contains an exception to the written notice requirement: “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.” Under §48-133, an employer’s notice or knowledge of a worker’s injury is sufficient if a reasonable person would conclude that the injury is potentially compensable and that the employer should therefore investigate the matter further. When an employer’s foreman, supervisor, or superintendent has knowledge of the employee’s injury, that knowledge is imputed to the employer. Knowledge imputed to an employer can satisfy §48-133’s notice requirement, and an employee is not required to give an opinion as to the cause of an injury in order to satisfy the notice requirement of §48-133. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

The Court found that by May 8, 2011, Vallin knew enough about the nature and extent of his injuries that he had an obligation to put defendant on notice that he was claiming his injuries were work-related. The Court also found that the employer first had knowledge of Vallin’s alleged May 8, 2011, injuries on March 9, 2012, nearly 10 months after the injuries occurred. Ultimately, the Court held that Vallin was required to give notice of his injuries as soon as practicable after May 8, 2011,  that he failed to do so, and that the 10-month delay was an “untimely delay in reporting.” Therefore, the Court also barred Vallin’s claims regarding any May 2011 injuries.

For more information about the statute of limitations and notice defenses, please contact Sara Hughes at shughes@baylorevnen.com or any of the Baylor Evnen workers’ compensation attorneys at (402) 475-1075.