The Nebraska Workers’ Compensation Court Elaborates On What Factors To Consider When Determining Whether An Injury Is “Latent and Progressive” For Purposes of the Statute of Limitations

by | Dec 27, 2016

Recently, the Nebraska Court of Appeals affirmed a dismissal of a Claimant’s action based on the statute of limitations defense when it found that a Claimant’s injury was not “latent and progressive” and therefore, did not toll the statute of limitations.

In Allen v Boon Brothers Roofing, the Claimant alleged that he incurred respiratory injuries while working as a roofer. In this case, Claimant alleged that he had been working on a roof breathing particulate matter while not wearing a mask resulting in him seeking medical care on June 8, 2013. Claimant filed a worker’s compensation petition on October 30, 2013. Approximately, eight months later, Claimant dismissed his petition voluntarily without prejudice. On September 8, 2015 Claimant refiled his petition asserting identical allegations. The employer affirmatively alleged that the claim was barred by the statute of limitations being that the date of injury alleged in the petition was June 8, 2013 the second petition was filed more than two years subsequent to the same. The worker’s compensation court granted the motion for summary judgement on the statute of limitations issue and dismissed Claimant’s petition.

On appeal, the Claimant argued that statute of limitations should not have barred his action because he had a “latent and progressive” injury which should have tolled the statute of limitations. Neb. Rev. Stat. § 48-137 notes that in cases of personal injury arising out of employment, all claims for compensation are barred unless brought within two years after the accident. Claimant argued that he suffered a latent and progressive injury which became increasingly disabling in September of 2013 thus the filing of a petition in September of 2015 was within the applicable statute of limitations.

The Court of Appeals acknowledged that a latent and progressive condition can toll the running of the statute of limitations. The Court of Appeals noted that in such a case, 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. The Court of Appeals reasoned that if an employer suffered an injury which appeared to be slight and which several physicians were unable to correctly diagnose, the worker’s failure to file a claim or bring suit in time would not defeat his right of recovery if he gave notice and commenced the action within the statutory period after he learned that a compensable disability resulted from the original accident.

However, the Court of Appeals also reasoned that the mere fact that the employee does not know the full extent of his injury from a medical standpoint did not make it latent so as to toll the statute of limitations. The Court of Appeals noted that when medical facts were reasonably discoverable, the burden of proving the injury to have been latent and progressive is upon the employee. In this case, the Court of Appeals agreed with the employer that the Claimant’s injury was not latent or progressive and Claimant first sought medical treatment as a result of inhaling particulate matter in June of 2013 – more than two years prior to the second filed petition. The Court of Appeals noted that just because the Claimant did not understand the full extent of his injury did not excuse his failure to file a timely petition.

Essentially, the Nebraska Court of Appeals noted that Claimant’s condition, although not immediately apparent to the unpracticed eye, was not a latent and progressive condition and accordingly did not toll the applicable statute of limitations. For questions regarding application of the Nebraska Statute of Limitations in Workers’ Compensation Matters please contact Nebraska Workers’ Compensation attorney Paul Barta at