It is Monday morning and you report to your job as a file clerk in a major corporation. You go to the filing cabinet to get a file and trip over a drawer that was left open again, despite numerous complaints to management about the number of times this has happened and the danger it presents. You have tripped over this drawer before, which is often left open because the file cabinet doesn’t close correctly and is due to be replaced. You and other co-workers have put in requisition forms to your supervisor to replace the cabinet, but the budget is tight this year and the company has not replaced it. Usually you just stub your toe or stumble and catch yourself, but today you actually fall and break your ankle and twist your back while falling. What are your rights? Who will pay your medical bills? Who will pay your salary while you are off work?
In Nebraska, your only option against your employer is workers’ compensation under the Exclusive Remedy Doctrine. Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991). Despite the fact that your employer failed to replace the filing cabinet and/or disregarded your complaints and didn’t make any changes in procedure, you will not have a lawsuit against your employer outside of workers’ compensation. There is no claim for an intentional tort against your employer in the State of Nebraska. The exclusive remedy doctrine provides a “give-and-take” remedy for addressing work-related injuries in which the employee relinquishes the right to sue an employer in civil court in exchange for specific and guaranteed benefits under the Nebraska Workers’ Compensation Act, regardless of fault. Benefits usually include payment of medical treatment under a specified fee schedule, as well as “indemnity” payments to help compensate the worker for lost wages.
If you are injured at work, workers’ compensation will generally cover your injuries, with certain limited exceptions such as if your employer has entered into an express contract with a third-party to indemnify the third-party for the loss. Union Pacific Railroad Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160 (1988). Railroads are governed by the Federal Employers’ Liability Act of 1908 (FELA), rather than workers’ compensation, which falls under a different set of guidelines. Even though workers’ compensation is your exclusive remedy for the negligence of your employer, you may have other claims. Should your injuries be the fault of a third party, you may be able to seek compensation from the third party. In this case, the workers’ compensation carrier may still pay your bills, however they are entitled to recovery of their payments from any settlement with the negligent party. The employer is, however, protected from the third-party defendant’s attempts to seek contribution against an injured employee’s employer or co-workers.
If an employer subject to the Nebraska Workers’ Compensation Act fails to carry workers’ compensation insurance or an acceptable alternative, it loses the protection of the exclusive remedy. In this situation, an employee can choose whether to accept the guaranteed benefits under the Nebraska Workers’ Compensation Act or to pursue a civil action directly against the employer. Neb. Rev. Stat. § 48-145(3). The employer’s non-compliance with the law operates as a Waiver of Exclusive Remedy.
So now that you know who will pay for your injuries, what is your responsibility as an injured employee? First, you must timely give notice of your injury to your employer. The law says this must be done “as soon as practicable” in writing, describing the details of your injury including the time, date, place and cause of the injury. This notice is not necessary if your employer has “actual” notice of the injury, such as if the employer is present at the time of the injury. Thompson v. Monfort of Colo, Inc., 221 Neb. 83, 375 N.W.2d 601 (1985). Once your employer is notified of the injury, it is their responsibility to file a First Report of Injury with the Nebraska Workers’ Compensation Court and open a claim.
It is important to note that your claim must be filed within two years of the date of your accident or two years from the last payment for compensation of medical or indemnity (wages). Neb. Rev. Stat. § 48-137. If you or a loved one has suffered an injury at work, you should have your claim evaluated by an attorney who handles workers’ compensation and is familiar with the specifications of the Nebraska Workers’ Compensation Act.