December 24, 2018 | Workers' compensation

Workers’ compensation is a no-fault system. That means basic negligence by an employee or employer does not affect entitlement to benefits. In fact, the only time basic negligence comes into play is when an employee is injured while on the job due to the negligence of a third party.

So when, if ever, does negligence affect a workers’ compensation claim? First, if an employee is “willfully negligent” that employee may be barred from benefits under the Nebraska Workers’ Compensation Act. This standard is extremely high, though. For example, an employee who failed to follow a safety rule requiring gloves while cutting meat who cut his hand was not found to be willfully negligent. Instead the Court noted that he had a momentary lapse in judgment, which did not amount to reckless indifference to safety. Guico v. Excel Corp., 619 N.W.2d 470 (2000). The actions of the employee must be deliberate and knowingly done (understanding the risk of injury) or at least amount to reckless disregard of the employee’s safety.

However, employees should still be aware that while they may still get workers’ compensation benefits, their negligent conduct could lead to discipline or termination from employment.

Finally, an employee injured by a co-worker’s gross negligence would still be entitled to benefits, as the exclusion only applies to the willful negligence of the employee who is injured. Again, the negligent co-worker could face discipline or termination for any negligent, willfully negligent, or intentional acts, but that does not absolve the employer for paying workers’ compensation for the injured employee.

So, what happens when an employer is willfully negligent and that act causes injury to an employee? The answer is that the employee may recover benefits under the Nebraska Workers’ Compensation Act (as only the employee’s willful negligence prevents benefits). However, the employee cannot sue the employer for larger damages outside of the workers’ compensation system.

In other words, the only remedy the employee has is under workers’ compensation with its limited benefits. This is true even where the employer’s actions amounted to gross, wanton, willful deliberate, intentional reckless, culpable, or malicious negligence. For example, an employee whose supervisor directed him to enter a grain bin without safety equipment was killed. This was in violation of several OSHA regulations. The supervisor was not monitoring the employee and he was engulfed and killed. OSHA even fined the employer.

However, the employee’s family was limited to recovering only the $10,000.00 funeral benefit available under the Nebraska Workers’ Compensation Act, because he was young and left no spouse or children as dependents. Had the family been able to bring a wrongful death action, the recovery would have undoubtedly been much higher. Therefore, the Act does not provide a sufficient remedy in some cases of extreme employer negligence, and the only deterrent to employer’s willful negligent is from sources like OSHA and other provisions that require worker safety.