Sooner or later just about every employer will need to deal with a workers’ compensation injury; in other words, an injury that is alleged to be within the course and scope of employment. The employee is under a statutory obligation to give notice of any claimed injury “as soon as practicable.” However, that is loosely interpreted and if an employer is, for example, aware that an employee needs time off to go to a doctor for a particular condition, and it is a condition that could even potentially be work related such will likely be sufficient notice even though the employee has not made any specific statement that such condition is work related. If there is any potential that such condition could be work related, it behooves the employer to inquire further.

The following are some suggestions for employers when handling workers’ compensation claims:

  1. Train all employees that they have the obligation to notify their immediate supervisor if they have any type of injury while working. The supervisor should make it a practice to document all such information in one central location so that if the question of whether notice was given, and what the notice consisted of, becomes an issue later, they can verify whether or not such a report was made without having to rely solely on memory.
  2. If the injury looks like it is at all significant, it would be wise to have one person designated as the individual the supervisors or employees should then notify. Certainly this should be done if the injury may potentially require any doctor’s visit or medical treatment. Having one person designated to receive all such reports is helpful as there are various documents to fill out and notifications to be made so it is difficult for numerous supervisors, who most likely rarely handle such matters, to be fully trained on what needs to be done.
  3. The person who is designated to receive this type of notification, should ascertain whether immediate medical care is needed and obtain such if necessary. They should interview the employee and find out the following information: what happened, when did it happen, the names of all witnesses, the precise symptoms, and the precise area of the body involved. The last fact is important since injuries to the head and torso are compensated differently than injuries to an extremity.
  4. An accident report should be filled out by the designated person receiving the report after talking to the injured employee. Such should be signed by the injured employee.
  5. There is also a Rule 50 choice of physician form that needs to be presented to the employee before any medical treatment is sought if possible. If such is not done, the employee is free to choose any physician they may want whether they have ever seen that doctor before or not.
  6. Notice of the injury should be given to the employer’s workers’ compensation insurer in accordance with the particular insurance policy.
  7. The insurer will then be in a position to give guidance as to whether the employer or the insurer will fill out the required First Report of Alleged Occupational Injury or Illness. This Report must be filed with the Workers’ Compensation Court within ten days of the date of the notice of injury. The injured employee is not responsible for filing this report, rather it is the employer’s or insurer’s responsibility.
  8. It is best to keep an injured employee working within the physical restrictions given by the doctor, even if only at part-time light duty, if at all possible. The temporary disability benefits that must be paid under workers’ compensation are less if this is done but even more importantly, it keeps the employee engaged with their co-workers and their work and generally helps make an eventual return to work at their regular job more likely.

Finally, if it appears that the employee will not be able to return to work after a workers’ compensation claim, the employer must proceed with caution before terminating the employment. Nebraska is an “at will” state, which means that the employment relationship only lasts as long as both the employer and employee want it to continue and either is free to end it for any reason as long as it is not due to an improper reason such as age, gender, etc.

However, the Nebraska Supreme Court has determined the employee has a separate tort action outside of any workers’ compensation action that can be brought in district court if their employment was terminated, or they were demoted, because they filed a workers’ compensation claim. Jackson v. Morris Communication Corp., 265 Neb. 423, 657 NW 2d 634 (2003); Trosper v. Bag ‘N Save, 273 Neb. 855, 734 NW 2d 704 (2007). Therefore, an employer that terminates employment or demotes an employee after a workers’ compensation claim is filed will need to be absolutely sure it is well documented that such was not due to the filing of the claim itself.

If the employer cannot accommodate permanent restrictions, there is no requirement under this retaliation case law that the employee continue on the payroll but it should be clearly documented that this is the reason for the termination for employment. Litigation may well arise whenever an injured employee’s job is terminated in this situation, and even though the employer knows such was not done in retaliation for filing a workers’ compensation claim, there will need to be sufficient evidence to convince the trier of fact of that as well.

Shirley K. Williams