The Check is in the Mail: What Date Controls in a Date of Last Payment Statute of Limitations Dispute

How Would You Decide? A Nebraska Case Study

Here’s what happened
On October 26, 1996, a Nebraska employee sustained a work-related injury and the employer, through its carrier, began to pay various benefits voluntarily. The employee filed a workers’ compensation claim for additional benefits on February 8, 2005. The employer denied additional benefits, contending they were barred by operation of Neb. Rev. Stat. § 48-137, which provides generally that claims shall be forever barred 2 years from the time of the making of the last payment. The employer contended the last payment, a check payable to the employee’s treating physician, had been mailed on February 7, 2003, and thus the employee’s claim was accordingly barred.

How the Court Ruled
In Obermiller v. Peak Interest, L.L.C., 277 Neb. 656, 2009 Neb. LEXIS 67 (April 23, 2009), the Supreme Court of Nebraska reversed the trial judge and the review panel, holding that the date the payment is received controls since that date gives the employee a more definitive date for knowing when the statute of limitations begins to run. The court distinguished an earlier decision, Brown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, 673 N.W.2d 35 (2004), in which it had held that an insurance carrier who mailed a check within 30 days of the entry of a compensation award did not subject the employer to a 50-percent penalty for delinquent payment (workersxzcompxzkit) where the payment was received after the 30-day penalty period. The court observed that different treatment was required since the two situations — the 50% penalty versus barring the employee’s claim — had marked differences in which party was penalized for noncompliance with the time limit and the purpose that the date of payment served under the two statutes. See generally Larson’s Workers’ Compensation Law §§ 126.07, 131.02.

Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached

at: [email protected]. http://law.lexisnexis.com/practiceareas/Workers-Compensation

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