48-133. Compensation; notice of injury; time; service.

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; Provided, that all disputed claims for compensation or benefits shall be first submitted to the Nebraska Workers' Compensation Court. The notice shall be in writing and shall state in ordinary language the time, place, and cause of the injury. It shall be signed by the person injured, or by a person in his or her behalf, or in the event of his or her death, by his or her legal representative or by a person in his or her behalf. The notice shall be served upon the employer or an agent thereof. Such service may be made by delivering the notice to the person on whom it is to be served, or leaving it at his or her residence or place of business, or by sending it by certified or registered mail addressed to the person or corporation on whom it is to be served at his or her last-known residence or place of business. A notice given pursuant to this section shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, as the case may be, was in fact misled thereby. 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.

Source

Annotations

1. Notice of injury

2. Claim for compensation

3. Miscellaneous

1. Notice of injury

An employee is not required to give an opinion as to the cause of an injury in order to satisfy the notice requirement under this section. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

Under this section, an employer has sufficient notice or knowledge of a worker's injury if a reasonable person would conclude that the injury is potentially compensable and that the employer should therefore investigate the matter further. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

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 this section's notice requirement. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).

When the parties do not dispute the facts concerning reporting and notice, whether such facts constitute sufficient notice to the employer under this section presents a question of law. Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009); Unger v. Olsen's Ag. Lab., 19 Neb. App. 459, 809 N.W.2d 813 (2012).

A lack of prejudice is not an exception to the requirement of notice under this section. Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995).

In place of indispensable written notice, this section contemplates a situation in which an employer has notice or knowledge sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable and that, therefore, the employer should investigate the matter further. Thompson v. Monfort of Colorado, 221 Neb. 83, 375 N.W.2d 601 (1985).

Employee is required to give notice in writing as soon as practicable after the accident. Seymour v. Journal-Star Printing Co., 174 Neb. 150, 116 N.W.2d 297 (1962).

Where employer had actual notice, written notice was not required. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).

Request for medical services was sufficient notice. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).

Where employee, with full knowledge of his injury, fails to file notice of claim within six months after injury, his claim is barred. Surratt v. Otoe Food Products Co., 146 Neb. 854, 21 N.W.2d 862 (1946).

Lack of written notice to employer is not bar to proceedings if employer has notice or knowledge of the injury. Perkins v. Young, 133 Neb. 234, 274 N.W. 596 (1937).

Timely notice to or knowledge of a foreman, whose duty requires him to report accidents to his employer, is sufficient. Clary v. R. S. Proudfit Co., 124 Neb. 582, 247 N.W. 417 (1933).

Employee's failure to give timely notice of claim is not necessarily defense where injury is latent and progressive, and notice is given within six months from time he has knowledge of compensable disability. Flesch v. Phillips Petroleum Co., 124 Neb. 1, 244 N.W. 925 (1932).

Verbal notice to physician of employer, indirectly threatening suit, is not such notice as complies herewith. Samland v. Ford Motor Co., 123 Neb. 819, 244 N.W. 404 (1932).

Written notice to employer is not necessary where he had actual notice of employee's injury. Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N.W. 688 (1930).

For purposes of notice or knowledge under this section, the employer equates to the insurer, and vice versa. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

Knowledge of an employee's injury gained by the employee's foreman, supervisor, or superintendent in a representative capacity for an employer is knowledge imputed to the employer and notice to an employer sufficient for the notice requirement of this section. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

This section provides an exception to the written notice rule if it can be shown that the employer had notice or knowledge of the injury sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable, which in turn would create a responsibility of the employer to investigate the matter. Snowden v. Helget Gas Products, 15 Neb. App. 33, 721 N.W.2d 362 (2006).

A lack of prejudice is not an exception to the requirement of notice. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

This section requires notice of the injury, not merely notice of the accident. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

Where an employee experienced an unusual event, promptly perceived substantial pain that the employee connected with the event, within days sought medical treatment which the employee related to the event, and failed to notify the employer of the injury for approximately 5 months, such notice was not given as soon as practicable. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

2. Claim for compensation

Where an occupational disease results from continual absorption of small quantities of a deleterious substance from the employment environment over a period of time, the afflicted employee is considered "injured" only when the accumulated effects of the substance manifest themselves, which is when the employee becomes disabled and entitled to compensation. The statute of limitations runs from the date when the disability first occurred. Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).

A claim made within six months after occurrence of disability is a condition prerequisite to the bringing of action for compensation benefits. Raymond v. Buckridge, Inc., 195 Neb. 212, 237 N.W.2d 412 (1976).

Furnishing by employer of medical services and medicines dispenses with necessity of making claim within six months after injury. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959).

Where employee failed to establish connection between accident and disability, consideration of question of failure to file claim in time was unnecessary. Cole v. Cushman Motor Works, 159 Neb. 97, 65 N.W.2d 330 (1954).

Where time for filing of claim expires in lifetime of employee, it is a bar to claim by his dependents after his death. McCoy v. Gooch Milling & Elevator Co., 156 Neb. 95, 54 N.W.2d 373 (1952).

Where employee has made claim within six months against employer, he is not required to make separate claim against third party who failed to require employer to carry insurance. Dobesh v. Associated Asphalt Contractors, Inc., 138 Neb. 117, 292 N.W. 59 (1940).

A demand for payment of medical expenses under the compensation act is a claim for compensation. Schmidt v. City of Lincoln, 137 Neb. 546, 290 N.W. 250 (1940).

Minor dependents of deceased employee are not excepted from provisions of statute as to time for filing claims. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139 (1938).

Failure to comply with statutory requirements as to filing claim precludes recovery. Johansen v. Farmers Mutual Hail Ins. Assn., 133 Neb. 118, 274 N.W. 393 (1937).

In case of physical or mental incapacity resulting from injury, the statutory limitations as to notice and commencement of action do not begin to run until six months after removal of such incapacity. Mulvey v. City of Lincoln, 131 Neb. 279, 267 N.W. 459 (1936).

Exception is made in case of latent and progressive injury, and claim must be made within six months after employee acquired knowledge of disability. Park v. School District No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).

Claim must be made within six months and petition filed within one year of death of employee. Welton v. Swift & Co., 125 Neb. 455, 250 N.W. 661 (1933).

Where claimant was informed by his doctor of progressive cataracts forming in the lenses of both eyes, he was not excused from filing claim on the ground that condition was latent. Kurtz v. Sunderlund Bros. Co., 124 Neb. 776, 248 N.W. 84 (1933).

Where claim is made within six months of time real nature of injury was first discovered, it was timely made. Clary v. R. S. Proudfit Co., 124 Neb. 582, 247 N.W. 417 (1933).

Where claim for compensation was made within six months from time real nature of injury was first discovered by use of X-rays, it was timely made. Montgomery v. Milldale Farm & Live Stock Improvement Co., 124 Neb. 347, 246 N.W. 734 (1933).

Where injury is latent and of progressive nature and culminates in a compensable disability, claim may be filed within a year after date of culmination thereof. Marler v. Grainger Bros., 123 Neb. 517, 243 N.W. 622 (1932).

Failure to file claim or bring suit within specified time does not defeat right to compensation where injury is latent and notice has been given and action commenced within statutory period after employee has knowledge of such compensable injury. Astuto v. V. Ray Gould Co., 123 Neb. 138, 242 N.W. 375 (1932).

Recovery is not barred where employee makes claim of employer within two months after injury and lodges claim with commissioner within seven months thereof. Palmer v. Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).

Latent injuries, progressive in nature, entitle employee to compensation when disability is discovered to exist and, in such cases, failure to make claim within six months after the accident will not deprive employee of rights. McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197 N.W. 615 (1924); Selders v. Cornhusker Oil Co., 111 Neb. 300, 196 N.W. 316 (1923); Johansen v. Union Stock Yards Co., 99 Neb. 328, 156 N.W. 511 (1916).

Knowledge of employer that employee has received an injury will not dispense with necessity of making claim for compensation. Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639 (1918).

Time for bringing of proceeding begins to run from the time physical or mental incapacity is removed. Simon v. Cathroe Co., 101 Neb. 211, 162 N.W. 633 (1917).

This section contemplates a situation where an employer has notice or knowledge sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable and that therefore, the employer should investigate the matter further. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).

3. Miscellaneous

Agreement to pay compensation must be approved by compensation commissioner or compensation court or it is void, and part payment will not make such agreement actionable at common law. Duncan v. A. Hospe Co., 133 Neb. 810, 277 N.W. 339 (1938).

Where the underlying facts are undisputed, or if disputed, the factual finding of the trial court was not clearly erroneous, the question of whether this section bars the claim is a question of law upon which the appellate court must make a determination independent of that of the trial court. Unger v. Olsen's Ag. Lab., 19 Neb. App. 459, 809 N.W.2d 813 (2012).