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Recent Nebraska Supreme Court Decision Prohibits Defendant Counterclaims

Neb. Rev. Stat. § 48-177 provides that a cause of action filed with the Nebraska Workers' Compensation Court may be dismissed without prejudice to a future action by the plaintiff (typically, the injured worker) at any time before the final submission of the case to the Nebraska Workers' Compensation Court.  Last week, the Nebraska Supreme Court decided Wilmer Interiano-Lopez v. Tyson Fresh Meats, Inc., which is a procedurally significant case in the Nebraska workers' compensation arena.  Prior to the ruling in this case, the law was unsettled regarding whether a workers' compensation defendant could file a counterclaim against an injured worker.  In some cases, workers' compensation defendants were filing counterclaims in an effort to preserve an ability to keep the injured workers' cause of action on file with the court and force the case to trial, even if the plaintiff wished to dismiss the workers' compensation claim without prejudice.  The Supreme Court in Wilmer Interiano-Lopez determined that counterclaims by defendants are not permissible because allowing such counter claims "would have the effect of nullifying a plaintiff's statutory right to dismiss the cause without prejudice under § 48-177."  

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