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Compensation claims; actions; statute of limitations; exceptions.
case of personal injury, all claims for compensation shall be forever
barred unless, within two years after the accident, the parties shall
have agreed upon the compensation payable under the Nebraska Workers'
Compensation Act, or unless, within two years after the accident, one
of the parties shall have filed a petition as provided in section 48-173.
In case of death, all claims for compensation shall be forever barred
unless, within two years after the death, the parties shall have agreed
upon the compensation under the Nebraska Workers' Compensation Act, or
unless, within two years after the death, one of the parties shall have
filed a petition as provided in section 48-173.
When payments of compensation have been made in any case, such
limitation shall not take effect until the expiration of two years from
the time of the making of the last payment. In the event of legal
disability of an injured employee or his or her dependent such
limitation shall not take effect until the expiration of two years from
the time of removal of such legal disability.
- Laws 1913, c. 198, § 38, p. 595;
- R.S.1913, § 3679;
- Laws 1917, c. 85, § 14, p. 210;
- C.S.1922, § 3061;
- C.S.1929, § 48-138;
- R.S.1943, § 48-137;
- Laws 1961, c. 234, § 3, p. 693;
- Laws 1977, LB 144, § 2;
- Laws 1986, LB 811, § 55.
1. Agreement by employer to compensate2. Filing of petition3. Payment of compensation4. Latent and progressive injury5. Miscellaneous1. Agreement by employer to compensate
2. Filing of petition
employer agreed to compensate employee for injury and employee relying
on promise, waited more than a year from time of accident to begin
action, employer could not plead statute of limitations hereunder.
Speas v. Boone County, 119 Neb. 58, 227 N.W. 87 (1929).
2-year limitation contained in this section is contingent upon the
failure of one of the parties to file a petition. Foote v. O'Neill
Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).
- A claim for compensation filed 4
years after the date of the accident, with no allegation of excuse
tolling the operation of the statute of limitations, is subject to
demurrer. Bernhardt v. County of Scotts Bluff, 240 Neb. 423, 482 N.W.2d
- A proceeding under section 48-141,
R.R.S.1943, to modify a previous award of the compensation court to
recover additional compensation for an increase in incapacity can only
be brought within two years of the time the employee knows, or is
chargeable with knowledge, that his condition has materially changed
and there is such a substantial increase in his disability as to
entitle him to additional compensation. O'Connor v. Anderson Bros.
Plumbing & Heating, 207 Neb. 641, 300 N.W.2d 188 (1981).
- Where plaintiff's injury is
known, and medical facts as to the extent of the injury were reasonably
discoverable, the injury is not latent, and must be brought within the
one-year statute of limitations. McGahan v. St. Francis Hospital, 200
Neb. 406, 263 N.W.2d 845 (1978).
- Consideration of question of
failure to file petition in time was unnecessary where employee failed
to establish compensable injury. Cole v. Cushman Motor Works, 159 Neb.
97, 65 N.W.2d 330 (1954).
- Time in which to bring action is tolled while employee is a minor. Krajeski v. Beem, 157 Neb. 586, 60 N.W.2d 651 (1953).
- Petition was filed in time. Gilbert v. Metropolitan Utilities Dist., 156 Neb. 750, 57 N.W.2d 770 (1953).
- Petition is required to be filed
within one year after employee acquires knowledge of a compensable
disability. McCoy v. Gooch Milling & Elevator Co., 156 Neb. 95, 54
N.W.2d 373 (1952).
- An injured workman has one year
in which to file petition in workmen's compensation case. Clark v.
Village of Hemingford, 147 Neb. 1044, 26 N.W.2d 15 (1947).
- Where an employee, with full
knowledge of his injury, fails to make claim for compensation within
six months, and fails to file petition within one year, his claim is
barred. Surratt v. Otoe Food Products Co., 146 Neb. 854, 21 N.W.2d 862
- To recover additional
compensation for an increase in disability, proceedings must be brought
within one year from the time the employee knows or is chargeable with
knowledge that his condition has materially changed. Scott v. State,
137 Neb. 348, 289 N.W. 367 (1939).
- Where employee is injured and
dies in October 1931, and no claim is filed on behalf of minor
dependents until September 1936, such claim is barred by statute of
limitations. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139
- Failure to comply with statutory
requirements as to filing claim and filing petition precludes recovery.
Johansen v. Farmers Mutual Hail Ins. Assn., 133 Neb. 118, 274 N.W. 393
- Where petition was filed within
one year after assault causing injury, it was within time. Miller v.
George & Mary Reisch Co., 132 Neb. 338, 271 N.W. 853 (1937).
- Where statute has become bar to
claim for compensation during lifetime of injured employee it is also a
bar to a claim by his dependents after his death. Price v. Burlington
Refrigerator Express Co., 131 Neb. 657, 269 N.W. 425 (1936).
- Officer in municipal fire
department, injured while fighting fire, was barred from claiming
compensation when he failed to file petition within one year after date
to which city had paid his salary in full. Dunlap v. City of Omaha, 131
Neb. 632, 269 N.W. 422 (1936).
- Proceedings for compensation
cannot be maintained where no claim is filed within six months, or
petition within one year, of death of employee. Welton v. Swift &
Co., 125 Neb. 455, 250 N.W. 661 (1933).
- Where action is not brought
within one year of last payment of compensation, it is barred
hereunder. Kurtz v. Sunderland Bros. Co., 124 Neb. 776, 248 N.W. 84
- Recovery was not barred where
employee made claim of employer within two months after injury and
lodged claim with commissioner within seven months thereof. Palmer v.
Saunders County, 117 Neb. 484, 221 N.W. 99 (1928).
- Where petition was filed more
than one year after injuries were sustained, claim was barred. Duhrkopf
v. Bennett, 108 Neb. 142, 187 N.W. 813 (1922).
3. Payment of compensation
- Knowledge by employer that
employee was injured does not excuse latter from making claim for
compensation within statutory period. Good v. City of Omaha, 102 Neb.
654, 168 N.W. 639 (1918).
section provides that when payments of workers' compensation have been
made, the statute of limitations will not take effect until the
expiration of 2 years from the time of the making of the last payment
of compensation. Payments for medical case-management services that are
not required by the Nebraska Workers' Compensation Act and that result
in no benefit to the injured employee do not constitute payments of
compensation which toll the statute of limitations set forth in this
section. Smart v. Scrivner/Food 4 Less, 254 Neb. 111, 574 N.W.2d 505
- Generally, a payment for
compensation benefits made by an employer's insurance carrier for an
accident which predated its coverage tolls the statute of limitations
and binds the employer. Fenster v. Clark Bros. Sanitation, 235 Neb.
336, 455 N.W.2d 169 (1990).
- Furnishing of medical services
constitutes payment of compensation and is sufficient to toll running
of statute. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d
- Where no petition has been filed
by either party but compensation actually has been paid, in the absence
of legal disabilities or latent injuries, the limitation provided by
statute shall take effect at the expiration of one year after time of
making the last payment of compensation. Hill v. Hinky-Dinky Stores
Co., 133 Neb. 147, 274 N.W. 455 (1937).
- Substitute check given to replace
one lost does not extend time in which action must be brought
hereunder. Samland v. Ford Motor Co., 123 Neb. 819, 244 N.W. 404 (1932).
- Medical, surgical, and hospital
services furnished by employer constituted payment of compensation
within meaning of this section. Baade v. Omaha Flour Mills Co., 118
Neb. 445, 225 N.W. 117 (1929).
- On payments of compensation
without agreement of settlement, limitation does not take effect until
one year after last payment. Ashton v. Blue River Power Co., 117 Neb.
661, 222 N.W. 42 (1928).
4. Latent and progressive injury
- When payments of workers'
compensation have been made, the statute of limitations shall not take
effect until the expiration of 2 years from the time of the making of
the last payment. Sands v. School Dist. of City of Lincoln, 7 Neb. App.
28, 581 N.W.2d 894 (1998).
section has at least two exceptions, including (1) where a "latent and
progressive" injury is not discovered within 2 years of the accident
which caused the injury and (2) where a material change in condition
occurs which necessitates additional medical care and from which an
employee suffers increased disability. Snipes v. Sperry Vickers, 251
Neb. 415, 557 N.W.2d 662 (1997).
- The 2-year limitations period
contained in this section is tolled when a claimant suffers a latent
and progressive injury. 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. Gloria v. Nebraska Public
Power Dist., 231 Neb. 786, 438 N.W.2d 142 (1989).
- If an injury is deemed to be, at
the outset, latent and progressive, the statute of limitations does not
begin to run until the employee discovers or should have discovered he
has a compensable disability. Cemer v. Huskoma Corp., 221 Neb. 175, 375
N.W.2d 620 (1985).
- Generally, reimbursement of
medical expense by an employer or under a group health insurance
agreement does not constitute remuneration in lieu of workmen's
compensation benefits so as to toll the statute of limitations.
Steadily debilitating knee injury was not within the latent exception
to the statute of limitations. Maxey v. Fremont Department of
Utilities, 220 Neb. 627, 371 N.W.2d 294 (1985).
- If an employee suffers an injury
which appears to be slight but which is progressive in its course, and
which several physicians are unable to correctly diagnose, the worker's
failure to file a claim or bring suit in time will not defeat his right
to recovery, if he gave notice and commenced action within the
statutory period after he learned that compensable disability resulted
from the original accident. The mere fact that the employee did not
know the full extent of his injury from a medical standpoint does not
make it latent, particularly where the medical facts were reasonably
discoverable, and the burden of proving the injury to have been latent
and progressive is upon the employee. Thomas v. Kayser-Roth Corp., 211
Neb. 704, 320 N.W.2d 111 (1982).
- 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).
- Where injury is latent and
progressive, period of limitation begins to run when true nature
thereof is first discovered by claimant. Borowski v. Armco Steel Corp.,
188 Neb. 654, 198 N.W.2d 460 (1972).
- Period of limitation provided in
this section runs from the time it is reasonably apparent that a
compensable injury has been sustained, if the employee is aware that
the disability is due to his employment. Williams v. Dobberstein, 182
Neb. 862, 157 N.W.2d 776 (1968).
- Statute of limitations did not
commence to run on disability progressive in nature until employee had
knowledge that compensable disability had resulted. Welke v. City of
Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965).
- Statute of limitations commences
to run from the time the employee has knowledge that an accident has
caused a compensable disability. Ohnmacht v. Peter Kiewit Sons Co., 178
Neb. 741, 135 N.W.2d 237 (1965).
- To be effective to toll the
statute of limitations, furnishing of medical services must have been
made within one year of filing of petition. Schweiger v. Island Supply
Co., 178 Neb. 547, 134 N.W.2d 233 (1965).
- In case of a latent injury, the
time for commencement of action is one year after the employee obtained
knowledge that the accident caused compensable disability. Seymour v.
Journal-Star Printing Co., 174 Neb. 150, 116 N.W.2d 297 (1962).
- Where injury is latent and did
not result in compensable disability, failure to file claim and
commence action within time prescribed by statute will not defeat later
action. Plambeck v. Natkin & Co., 171 Neb. 774, 107 N.W.2d 734
(1961); Webb v. Consumers Cooperative Assn., 171 Neb. 758, 107 N.W.2d
- Where an employee suffers an
injury the character of which is ascertainable only by medical men, and
medical men are unable to ascertain it up to a certain time, the
statute of limitations does not begin to run until the injury is
ascertained. Keenan v. Consumers Public Power Dist., 152 Neb. 54, 40
N.W.2d 261 (1949).
- When an employee receives an
accidental injury which activates a dormant disease, the failure to
bring suit within a year is not a bar if action is brought within one
year after the employee acquires knowledge of a compensable disability.
Dryden v. Omaha Steel Works, 148 Neb. 1, 26 N.W.2d 293 (1947).
- Where injury is latent and
progressive, claim must be filed within six months from the time the
employee acquires knowledge of a compensable disability. Lind v.
Nebraska National Guard, 144 Neb. 122, 12 N.W.2d 652 (1944).
- 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).
- Where injury is latent and
progressive, claim must be made within six months from time employee
acquires knowledge of compensable disability. Park v. School District
No. 27, Richardson Cty., 127 Neb. 767, 257 N.W. 219 (1934).
- Where action was begun within
statutory period after employee has knowledge of compensable injury,
action was not barred. Astuto v. V. Ray Gould Co., 123 Neb. 138, 242
N.W. 375 (1932).
- Where injury is latent,
subsequently culminating in compensatory disability, claim for such
injury may be filed within year from culmination thereof. Travelers
Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449 (1929).
- Failure to file a claim or bring
suit within specified time does not defeat right to compensation where
injury is latent, if notice is given and action commenced within
statutory period after employee has knowledge that compensable
disability has resulted. City of Hastings v. Saunders, 114 Neb. 475,
208 N.W. 122 (1926); McGuire v. Phelan-Shirley Co., 111 Neb. 609, 197
N.W. 615 (1924); Selders v. Cornhusker Oil Co., 111 Neb. 300, 196 N.W.
- In workers' compensation cases
involving a claim for an occupational disease, the statute of
limitations begins to run when the accumulated effects of the disease
manifest themselves, which is when the employee becomes disabled and
entitled to compensation. Ross v. Baldwin Filters, 5 Neb. App. 194, 557
N.W.2d 368 (1996).
an occupational disease context, the date of injury, for purposes of
this section, is that date upon which the accumulated effects of the
disease manifest themselves to the point the injured worker is no
longer able to render further service. Dawes v. Wittrock Sandblasting
& Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).
- In barring a workmen's
compensation claim as untimely filed, compensation court held the
limitation provision begins to run from the time it becomes reasonably
apparent or should have become reasonably apparent that a compensable
claim exists. Novak v. Triangle Steel Co., 197 Neb. 783, 251 N.W.2d 158
- Time for bringing action is not
tolled by mental incapacity of employee's attorney. Bame v. Lipsett,
Inc., 172 Neb. 623, 111 N.W.2d 380 (1961).
- Where employer denies liability, wages paid are not credited on award. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954).
- Application for additional award
may be made although original award is fully paid. Peek v. Ayers Auto
Supply, 157 Neb. 363, 59 N.W.2d 564 (1953).
- Limitation does not begin to run
until six months after removal of mental or physical incapacity. Simon
v. Cathroe Co., 101 Neb. 211, 162 N.W. 633 (1917).