Worker's violation of safety rule does not disqualify him from receiving workers' compensation benefits

Law Reporter, May 2001

Guico v. Excel Corp., 619 N.W.2d 470 (Neb. 2000).

The Nebraska Supreme Court held that a worker who was injured when he violated a safety rule promulgated by his employer could still receive workers' comp under the state workers' compensation act, Neb. Rev. Stat. 48-101. That statute provides compensation for work-related injuries unless the employee was willfully negligent at the time of the injury.

Here, Guico's employer, a meat processor, required all employees to wear steel-mesh gloves when using knives. Guico switched jobs with a coworker who had been rib splitting-which involves the use of a knife-but did not put on the gloves. The knife slipped, lacerating Guico's thumb and index finger. A trial court found that Guico was entitled to benefits under the workers' compensation act, and the workers' compensation court affirmed.

Affirming, the state high court noted that to avoid liability based on an employee's willful negligence, an employer must prove a deliberate act knowingly done, or at least showing a reckless indifference to the employee's safety. Addressing an issue of first impression, the court cited several factors that other courts have considered in determining whether the violation of an employer's safety rule should disqualify a worker from benefits. These include whether (1) the employer has a reasonable rule designed to protect the employee's safety and health, (2) the employee has actual notice of the rule, (3) the employee understands the danger involved in violating the rule, (4) the rule is kept alive by the employer's bona fide enforcement, and (5) the employee has a bona fide excuse for violating the rule.

In this case, the trial court found that the employer had a rule requiring its workers to wear specialized gloves when working with knives, and that Guico had actual notice of the rule before his injury. As to the remaining factors, the trial court found that Guico did not understand the danger involved in the violation, the rule was not kept alive by bona fide enforcement, and Guico had a valid excuse for violating the rule given his employer's production demands.

Upon appellate review, the court explained, the findings of fact made by a trial judge of the compensation court will not be disturbed unless clearly wrong. Here, the court found, a trier of fact could reasonably conclude from the evidence that requiring a supervisor's permission to switch jobs was a component of the employer's enforcement of the rule that was not always followed. In addition, the court said, a trier of fact could reasonably conclude from Guico's testimony that his failure to comply with the safety rule was a momentary lapse of judgment as opposed to reckless indifference to safety.

Accordingly, the court concluded, the trial court was not clearly wrong in finding that the employer failed to meet its burden of proving that Guico was willfully negligent at the time of his injury.

Guico's Counsel Roger Moore, Lincoln, Neb.