POTENTIAL SEA CHANGE IN WHAT CONSTITUTES NOTICE OF AN INJURY “AS SOON AS PRACTICABLE” IN NEBRASKA

Recently, the Nebraska Court of Appeals affirmed a trial court’s finding that an employee did not give notice to his employer ‘as soon as practicable’ in Bauer v. Genesis Healthcare Group. The employee was hurt on September 15, 2017, and informed his employer on October 23, 2017. This represented a delay of just over 30 days. The trial court found, and the Appellate Court affirmed, that this delay in giving notice was not ‘as soon as practicable’ as required by Nebraska Code Section 48-133 and dismissed the case.

Previously in Nebraska, for a delay in giving notice to be found to be unjustifiably delayed such that Section 48-133 would apply, notice was a much more nebulous concept with little impact on compensability.

The Court in Bauer reiterated that the purpose of Section 48-133 is twofold. First, to enable the employer to provide immediate medical diagnosis and treatment with the intention of minimizing the seriousness of the injury. Second, to facilitate the earliest possible investigation of the facts surrounding the injury. Notably, courts in Nebraska have repeatedly held that a lack of prejudice to the employer in giving notice is not a valid justification for not reporting the injury ‘as soon as practical.’

This is not to say that any delay in giving notice by an employee after 30 days from an injury will automatically be found to be unjustifiable under Section 48-133. In fact, delays for a substantially longer time periods could still be found to be ‘as soon as practicable.’ The reason such a short time period was found to be unjustifiable in Bauer was because of the specific facts of the case.

The claimant in Bauer was an experienced physical therapy assistant. He realized immediately that he’d hurt himself, but deliberately did not tell his employer because he did not want to ‘rock the boat.’ Instead, he cancelled his weekend plans and tried to treat his injury himself. When his attempts to treat his injury were unsuccessful over the weekend, he put himself on light duty restrictions at work the following week, and adjusted his schedule. The claimant only notified his employer of the injury after being placed on administrative leave, and only after he sustained further injury.

The Court found that Genesis, the employer, was potentially compromised by the claimant’s delay. If the claimant had reported the injury right away he could have received professional medical treatment, the nature and extent of the injury could have been assessed, and claimant’s further injury could have been prevented. Treating the claimant’s injury properly was of the utmost concern for the Court in finding that his delay was unjustifiable. However, the Court also noted that the delay prevented Genesis from being able to investigate the injury and gather facts for their own defense.

The Appellate Court found the claimant’s argument, that his delay was justifiable because he didn’t want to ‘rock the boat’ and feared reprisal from his employer, was irrelevant. The Justices on the Appeals Court recognized that the word ‘practical’ generally means, “to be possible or feasible, able to be done, or capable of being put into practice.” The Court said, “although we are sympathetic to [Claimant’s] apparent tenuous employment situation at the time that he was injured, we do not construe [Claimant’s] perception of instability of his employment as impacting the ‘practicability’ of reporting the incident.” In other words, fear of reprisal from reporting a work place accident does not make it any more or less practical to report it.

In short, the factual investigation regarding the time between when the employee first sustained the injury and when the employee gave notice of the injury to the employer are going to be of greater importance for workers’ compensation claims in the future. If you have any questions regarding the implications of Bauer v. Genesis Healthcare Group, or Nebraska Workers’ Compensation claims generally, please contact Tom Shires or Paul Barta at 402-475-1075.