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  1. #1
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    Can I still file a lawsuit after accepting workers compensation?

    What is the name of your state (only U.S. law)? Nebraska

    I was injured twice at my old job within a span of a month or two. I could've easily died both times and they were both either do to improper training from a foreman or safety negligence. My second injury was due to safety negligence. I was operating a dump truck and was not aware that the emergency/parking brake did not work on the vehicle. I was wearing all PPE(Personal Protective Equipment), and was drug 25 feet under a 10.5 ton dump truck into a ditch, luckily, I escaped with just nerve damage and my leg had swollen with blood clots resulting in it being 2.5 times bigger than normal. My foreman and other crew members were aware that the brake was not operational nor reliable for months and still did nothing, Can I pursue legal action for this?


  2. #2
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    You were operating a dump truck? Did you perform your complete daily safety check which would include verifying the parking brake was working properly? If so and it was discovered it wasnít working properly did you enter that on your safety checklist and red tag the truck?

    Even without a mandatory daily safety check, per federal standards a driver is responsible for safety checks on vehicles they operate.


    What Iím getting at is Iím not seeing how this isnít your negligence that caused your accident with the truck.


  3. #3
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    You are free to discuss this with a workers comp attorney but in general, workers comp is your sole remedy. (This remains true whether you file a claim or not; I don't know where so many people get the idea that they can forgo filing a claim and sue instead.) The circumstances under which you can file a lawsuit in a workers comp situation are very, very few and far between.


    Two things I am tired of typing: 1.) A wrongful termination does not mean that you were fired for something you didn't do; it means that you were fired for a reason prohibited by law. 2.) The above answer, whatever it is, assumes that no legally binding contract or CBA expressly says otherwise. If it does, the terms of the contract apply.
  4. #4
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    Nebraska has an exclusive remedy doctrine in their Workers' Compensation law. This doctrine protects those employers that have workers compensation coverage is almost all cases of workplace accidents. This doesn't mean you can't hire a lawyer to get you the best deal they can under WC laws but it does limit your ability to sue outside of WC laws.

    https://baylorevnenworkerscompensati...hus-causing-t/


  5. #5
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    Many states do carve out an exception to the exclusive remedy issue if the employer is negligent, willfully negligent, or grossly negligent (varies by state involved). Such action by the employer, in those states, does allow the matter to be treated under tort laws rather than workers comp laws.

    Nebraska apparently is of the same mind;

    48-110.

    Elective compensation; liability; scope.

    When employer and employee shall by agreement, express or implied, or otherwise as provided in section 48-112 accept the provisions of the Nebraska Workers' Compensation Act, compensation shall be made for personal injuries to or for the death of such employee by accident arising out of and in the course of his or her employment, without regard to the negligence of the employer, according to the schedule provided in such act, in all cases except when the injury or death is caused by willful negligence on the part of the employee. The burden of proof of such fact shall be upon the employer.
    So if an employer is willfully negligent, it does allow the employee to go outside of the remedies provided under their workers comp law.


    For purposes of this section, an injury is accidental if either its cause was accidental in character or its effect was unexpected or unforeseen, it happened suddenly and violently, and the occurrence produced at the time objective symptoms of injury. The "course of employment" embraces all activities connected with changing clothes before and after work, as well as similar acts during work hours. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996).
    If the defect was known, an injury resulting from that defect is not an unexpected or unforeseen event.
    Nebraska does speak to employees negligence as well;

    An employee who was willfully negligent at the time of his injury or death will not ordinarily be entitled to recover benefits under the workers' compensation law. Breckenridge v. Midlands Roofing Co., 222 Neb. 452, 384 N.W.2d 298 (1986).
    Whether the acts of an employee constitute willful negligence is dependent upon his willingness to disregard it and maintain a course of conduct indicating a reckless indifference for his own safety. Richards v. Abts, 135 Neb. 347, 281 N.W. 611 (1938).
    Iím not sure if the employers willful negligence or the employees willful negligence is more important here. I suspect the best the op can realistically hope for is the injury being covered by workers comp insurance.


  6. #6
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    Quote Originally Posted by GarrettW View Post
    My foreman and other crew members were aware that the brake was not operational nor reliable for months and still did nothing, Can I pursue legal action for this?
    Which is it? "Not operational" or "not reliable"?


  7. #7
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    Justalayman,

    Read that link I posted. It seems the Nebraska Supreme Court upholds the exclusive remedy clause pretty tightly.


  8. #8
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    Quote Originally Posted by PayrollHRGuy View Post
    Justalayman,

    Read that link I posted. It seems the Nebraska Supreme Court upholds the exclusive remedy clause pretty tightly.
    I agree that Nebraska's Supreme Court has made it pretty clear that workers compensation should be considered the exclusive remedy for injuries/death suffered in the workplace, although the laws in Nebraska do not preclude the filing of a lawsuit.


  9. #9
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    Quote: "do to "improper training" on the part of a supervisor......" This phrase leads me to believe it may have been operator error (granted possibly caused by improper training) that led to one of your accidents. If you get an attorney to take your case without an up front fee, that would indicate that you've possibly got a chance at a case beyond worker's comp. They'll also be glad to take a part of your worker's comp, too of course. But I've seen many many of these type situations and very few, in fact, none in my experience in which there was anything actually granted beyond worker's comp, though some lawyers did definitely give it a try.


    Last edited by commentator; 01-02-2018 at 01:48 PM.
  10. #10
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    Quote Originally Posted by commentator View Post
    Quote: "do to "improper training" on the part of a supervisor......" This phrase leads me to believe it may have been operator error (granted possibly caused by improper training) that led to one of your accidents. If you get an attorney to take your case without an up front fee, that would indicate that you've possibly got a chance at a case beyond worker's comp. They'll also be glad to take a part of your worker's comp, too of course. But I've seen many many of these type situations and very few, in fact, none in my experience in which there was anything actually granted beyond worker's comp, though some lawyers did definitely give it a try.
    We have had many discussions about this in the past, commentator, and I am the one usually urging an attorney's review.

    I think in Nebraska that trying to seek a legal remedy beyond workers compensation will be an exercise in futility, however, whereas that is often not the case in other states that also hold out workers compensation as the exclusive remedy.

    I would never discourage someone from consulting with an attorney but I am afraid, in this case as described, workers compensation does indeed seem to be the exclusive remedy available to GarrettW.


  11. #11
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    Quote Originally Posted by GarrettW View Post
    What is the name of your state (only U.S. law)? Nebraska

    I was injured twice at my old job within a span of a month or two. I could've easily died both times and they were both either do to improper training from a foreman or safety negligence. My second injury was due to safety negligence. I was operating a dump truck and was not aware that the emergency/parking brake did not work on the vehicle. I was wearing all PPE(Personal Protective Equipment), and was drug 25 feet under a 10.5 ton dump truck into a ditch, luckily, I escaped with just nerve damage and my leg had swollen with blood clots resulting in it being 2.5 times bigger than normal. My foreman and other crew members were aware that the brake was not operational nor reliable for months and still did nothing, Can I pursue legal action for this?
    Obviously by "legal action" you mean a civil action in tort and independent of Nebraska's Workers' Compensation Act. But against whom? Your employer, your foreman, co-workers, crew members . . . ?

    Certainly not against your employer. The Act mandates that an employee surrenders or waives his or her right to any method, form or amount of compensation against the employer other than as provided by the Act. (See: Ihm v. Crawford & Co., 254 Neb. 818, 580 N.W.2d 115 (1998).

    These laws have been adopted in furtherance of a public policy to provide some relief for all covered employees that sustain injuries in the course of their employment irrespective of negligence or fault on the part of the employer. As a trade off the workers are deemed to have waived all other methods and means of seeking compensation.


  12. #12
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    In rereading the original post, there could be a legal action to pursue against the truck manufacturer if the brake problem was a manufacturer defect. That might be worth exploring with an attorney.


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