NE Code § 48-137 (2021)
2021 Nebraska Revised Statutes|Chapter 48 - Labor|48-137 - Compensation claims; actions; statute of limitations; exceptions.

48-137.  Compensation claims; actions; statute of limitations; exceptions.In 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.Source   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. Annotations  1. Agreement by employer to compensate 2. Filing of petition 3. Payment of compensation 4. Latent and progressive injury 5. Material change in condition 6. Miscellaneous 1. Agreement by employer to compensate Where 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. Filing of petition The 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 262 (1992). 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 (1946). 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 (1938). 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 (1937). 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 (1933). 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). 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). 3. Payment of compensation In determining when the statute of limitations begins to run in situations where payments of compensation have been made, "the time of the making of the last payment" means the date the employee or the employee's provider receives payment. Obermiller v. Peak Interest, 277 Neb. 656, 764 N.W.2d 410 (2009). This 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 (1998). 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 309 (1959). 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). 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). 4. Latent and progressive injury 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); Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012). 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); Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012). 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 737 (1961). 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. 316 (1923). 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 the action within the statutory period after he learned that a compensable disability resulted from the original accident. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012). In the case of a latent injury, the time for commencement of the action is 1 year after the employee obtained knowledge that the accident caused the compensable disability. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012). The mere fact that the employee does not know the full extent of his injury from a medical standpoint does not make it latent so as to toll the running of the limitations period, particularly where medical facts were reasonably discoverable, and the burden of proving the injury to have been latent and progressive is upon the employee. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012). 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). 5. Material change in condition An employee seeking application of the exception for a material change in condition and substantial increase in disability is not required to demonstrate that he or she could not have filed a petition earlier than he or she did. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014). The exception for a material change in condition and substantial increase in disability was not rendered unenforceable by Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011). Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014). The Legislature has acquiesced to the exception for a material change in condition and substantial increase in disability. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014). 6. Miscellaneous In 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). This 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). 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 (1977). 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). There are two exceptions to the statute of limitations: (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. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 N.W.2d 710 (2012).