It goes without saying that an employer cannot adequately investigate or pay workers’ compensation benefits if it has no awareness that an accident occurred in the first place. For over a century, the Nebraska Workers’ Compensation Act has included a requirement that an employee must give notice of an injury to his or her employer “as soon as practicable” before benefits can be awarded. Good v. City of Omaha, 102 Neb. 654, 655-56, 168 N.W. 639 (1918). Indeed, the current codification of the notice requirement is found in Neb. Rev. Stat. § 48-133, but the operative language has not changed: an employee must give notice “as soon as practicable.”
The purpose of the notice requirement is based on the idea that a person who wants to hold another accountable or liable for his injuries must give that person notice of said potential liability. In this way, the statute has always contemplated than an employer is entitled to an early investigation into the nature and extent of the alleged injury so that he may “investigate the facts and preserve his evidence.” Good, 12 Neb. App. at 646, 682 N.W.2d at 727.
Notice is essentially a two-part test. First, the Court must decide as a matter of fact when notice was first provided to the employer. In other words, the Court must first identify what date the employer was aware of a potential work injury. To that, recall that an employee must provide notice of an injury, not merely notice of an accident. Williamson v. Werner Enterprises, Inc. 12 Neb. App. 642, 682 N.W.2d 723 (2004). In addition, while the initial language of the statute discusses that notice must be in writing, oral notice is sufficient if it is shown that the employer has actual notice or knowledge of the injury. Perkins v. Young, 133 Neb. 234, 274 N.W. 596 (1937).
A few additional points to recall in regard to what constitutes sufficient notice. First, the employee must provide notice to the “employer.” Caselaw has clarified that an “employer” includes the employee’s manager, foreman, supervisor, or superintendent. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006). An employee is not necessarily required to tell the employer that the injury is a result of a work accident. If a “reasonable person” would conclude that the injury is potentially compensable as a result of a work accident, it is the employer’s burden to investigate the matter further. If the employer fails to perform that investigation and that is why it was not aware of a work-related injury, the employer’s failure to investigate will not act as a bar to the employee’s right to benefits. Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995).
After the Court factually determines when notice was provided, the second question is whether that notice was given “as soon as practicable” which is a question of law. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009). The Nebraska Supreme Court has defined the phrase “as soon as practicable” as meaning “capable of being done, effected, or put into practice with available means, i.e., feasible.” Snowden v. Helget Gas Products, Inc., 15 Neb. App. 33, 721 N.W.2d 362 (2006). Historically, convincing the compensation court to dismiss an employee’s Petition on the basis that notice was not “as soon as practicable” was difficult if the delay was less than five months. This was because of the Nebraska Court of Appeals decision in Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004). In Williamson, the Court of Appeals held that an employee’s failure to provide notice of an injury for approximately five months was not “as soon as practicable.” Following Williams, notice issues were often raised by Defendants, but commonly only when the delay in reporting extended several months.
Fifteen years later, the issue of notice was again before the Court of Appeals in the case of Bauer v. Genesis Healthcare Group, 27 Neb. App. 904, 937 N.W.2d 492 (2019). At the trial level, Judge Fitzgerald dismissed Bauer’s Petition noting that his delay of 39 days before giving notice was not “as soon as practicable” under § 48-133. On appeal, the Court of Appeals affirmed the dismissal. In the decision, the Court cited Larson’s treatise on workers’ compensation law which stated: “The purposes of the notice requirement are first, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury.” Citing 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 126.01 (2003). The Bauer Court continued, “the question is not about how many days, weeks, or months elapse from the time of the injury until the reporting date, but whether the claimant reported the injury ‘as soon as practicable’ under the specific facts and circumstances of this case.”
Since the Bauer decision, notice arguments have been on the rise in the compensation court, and the recent trial decisions confirm these arguments are successful more frequently than they were even five years ago. With the right facts, employers can and should allege that an employee failed to give notice of an injury as soon as practicable.
To successfully argue there is a lack of timely notice, an employer should first understand the employee’s anticipated testimony regarding when he or she claims notice was provided. As Judge Martin pointed out, “Resolution of the notice defense rests primarily on the credibility of the plaintiff. Various factors go in to this determination including … corroboration of his statements from the evidence offered by the parties.” Espinoza v. Reiman Corp., 2015 WL 5566477 (Neb. Work. Comp. Ct.) (J. Martin). More often than not, an employee will testify that he or she gave timely oral notice of an injury and that his or her supervisor failed to investigate further. Indeed, it’s only on rare occasions that an employee admits he failed to provide notice of an injury. See Settje v. Walmart Associates, Inc., 2021 WL 4202842 (Neb. Work. Comp. Ct.) (J. Fridrich).
More commonly, an employer needs to present evidence to discredit the employee’s testimony that notice was timely provided. This evidence can be presented in a number of different formats. For example, an employer should call the supervisor or manager that the employee alleged she gave notice to (assuming the manager actually does dispute that testimony). Other evidence the Court found relevant to a notice dispute includes:
• Statements made by plaintiff to medical providers on intake forms admitting he had not reported his accident to his employer;
• Evidence the employee continued to work full duty without missing work and without any noticeable issues;
• Confirmation that Plaintiff was not working on the day he allegedly gave notice; and
• Documents showing the Plaintiff submitted his medical bills to his personal health insurance despite having prior workers’ compensation claims where his treatment was paid by the employer
After developing evidence regarding the factual question of when notice was provided, an employer should take additional steps to determine whether that notice was given as soon as practicable. Employees often put forth two arguments to convince the Judge that the delay in reporting was still as soon as practicable. In Klausen v. Commonwealth Electric Company, 2021 WL 880880 (Neb. Work. Comp. Ct.), Judge Hoffert held that a delay of 21 days was reasonable because the employee testified that he thought his injury would get better. After feeling like he had given it “adequate” time to heal on its own, the employee provided notice to his employer immediately thereafter. Judge Hoffert felt that testimony was consistent with claimant’s reports to his medical providers and therefore, he opined that a delay of 3 weeks was not untimely even under Bauer. Alternatively, relying on historic caselaw, employees also push the Court to find that delays of less than five months are still not “untimely.” See Reimers v. Rosens Diversified, Inc., 2021 WL 1514033 (Neb. Work. Comp. Ct.)(J. Block)(holding a delay of 13.5 weeks was not untimely). To contradict this argument, an employer should rely on the language in Bauer discussing the purpose of the notice requirement – to give the employer the chance to “investigate the facts and preserve his evidence.” Good, 12 Neb. App. at 646, 682 N.W.2d at 727. In some cases, a delay of only a few days may very well not be “as soon as practicable.”
An employer should never underestimate the importance of the notice requirement. Even a lack of notice for a week or two may not be “as soon as practicable” with the right supporting facts. Likewise, it cannot be emphasized enough that lack of timely notice may be relevant to other issues in the claim including whether an accident even occurred, or the claimant’s overall credibility. The current trend in the compensation court decisions certainly indicates that notice issues are becoming a hotly contested issue, and therefore warrant careful consideration by adjusters and defense attorneys alike.
If you have questions about a potential notice issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.