A recent Nebraska Workers’ Compensation Court of Appeals decision could narrow the time frame an employee has to give notice of an injury to an employer.
The Nebraska law states “no proceedings for compensation for an injury under the Nebraska Workers’ Compensation Act shall be maintained unless a notice of the injury shall have been given to the employer as soon as practicable after the happening thereof…”
“As soon as practicable” is the important issue in the case of Bauer v. Genesis Healthcare Group.
Bauer, a physical therapy assistant, injured his shoulder on September 15, 2017 while assisting a patient in a wheelchair. He felt a sharp pain and a pop with burning numbness in his right shoulder that radiated down his right arm. Although he mentioned his injury to a co-worker, he didn’t report it, because he thought it was just a sprain and he didn’t want to “rock the boat.”
There were already financial and managerial issues at the Genesis PT office where he worked, and he was afraid if he reported his injury he would be fired. He tried to relieve his shoulder pain by cancelling a planned trip to a Nebraska football game, icing, and working out.
Ten days later he was placed on administrative leave. His arm was still sore, but he still believed he had a sprain, and did aquatic therapy on his own.
On October 1, 2017 the employee was working at his family’s farm and felt a pop and pain in the same shoulder after attaching a blade to a tractor. He finally sought treatment, and after a visit to an orthopedic surgeon discovered his injury was more severe than he had originally thought – a biceps tendon subluxation with rotator cuff tendinopathy.
He reported his injury on October 23, 2017, but his claim was denied. At the Nebraska Workers’ Compensation Court, his assertion that the injury originally happened at work was accepted, but because the employee did not give notice “as soon as practicable” his claim was dismissed. The decision was appealed and upheld in a split decision. The dissenting judge expressed concern over the shortening of the time frame over reporting, since the report was just weeks after the injury, and in an important prior precedent, the time frame was four months. Prior to that, the legislated time limit for reporting an injury was up to two years.
This case reinforces the importance of reporting a claim promptly, and of speaking to an attorney when you are injured at work. It is easy to understand why an employee might put off reporting a claim: thinking the injury is not that bad, being worried about losing a job, not wanting to rock the boat. But in this case the employee lost both his job, and compensation for his injury.
