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Compensation; notice of injury; time; service.
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.
- Laws 1913, c. 198, § 33, p. 593;
- R.S.1913, § 3674;
- Laws 1917, c. 85, § 11, p. 209;
- C.S.1922, § 3056;
- C.S.1929, § 48-133;
- Laws 1935, c. 57, § 21, p. 198;
- C.S.Supp.,1941, § 48-133;
- R.S.1943, § 48-133;
- Laws 1961, c. 234, § 2, p. 692;
- Laws 1977, LB 144, § 1;
- Laws 1986, LB 811, § 52;
- Laws 1987, LB 93, § 16.
1. Notice of injury2. Claim for compensation3. Miscellaneous1. Notice of injury
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
- 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
- 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).
- 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).
2. Claim for compensation
- 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).
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 occurrance 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
- 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
- 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
- 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).
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).