Banged, Bumped and Bruised at Work – What are My Options?

You have a right to a safe workplace.  In 1970, the Occupational Safety and Health Act (OSHA) was passed to prevent workers from being killed or seriously harmed at work.  The Act created a government agency to set and enforce protective workplace safety and health standards, provide information, training and assistance to workers and employers.  The purpose was to prevent and lower the number, frequency and extent of worker injuries and deaths.  However, accidents at work still occur.

In Nebraska, if you are injured at work, your exclusive remedy against your employer is workers’ compensation, unless there is an express contract between the employer and a third-party to indemnify the third-party for the loss, as was the case in in the 1988 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.

In a straight workers’ compensation case, however, the negligence of your employer does not give you a better case against your employer.  The Nebraska Workers’ Compensation Act eliminates an employee’s common law cause of action for an employer’s negligence.  In return for this immunity, the employer is held strictly liable for payment of workers’ compensation benefits regardless of fault Ray v. School District of Lincoln, 105 Neb. 456 (1920).  This includes any actions for an employer’s intentional tort.  It is for this reason that your employer is required to carry workers’ compensation insurance if they have one or more employees in a regular trade, business or profession, with exceptions such as household domestic servants, employees of agricultural operations, railroad employees, executive officers under a certain threshold, volunteers and independent contractors.   Workers’ compensation insurance is intended to provide compensation for work-related injuries, regardless of negligence, provided your injury was incurred in the scope and course of your employment.

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.

There is one exception to the exclusive remedy provision, however.  If an employer who is subject to the Workers’ Compensation Act fails to carry workers’ compensation insurance or an acceptable alternative, Neb. Rev. Stat. § 48-145(3) provides that an employee can either elect to proceed under the act’s benefits or to seek to recover damages in a common-law action against the employer.

Workers’ compensation claims have a shorter time period in which to bring your claim than a normal negligence suit in Nebraska as well.  You should consult with an attorney knowledgeable in worker injuries to evaluate all potential claims as a result of the particular facts of your injury.