Nebraska High Court Clarifies “Manifestation” Date in Repetitive Trauma Cases

The Supreme Court of Nebraska recently held that for purposes of assigning liability among several employers for a dental hygienist’s repetitive trauma injury, the injury manifested itself on the day she first missed work due to pain and not the date several years earlier when she first began to feel discomfort while working and first sought medical treatment. Accordingly, the employer and the employer’s carrier on that latter date were liable for all of the hygienist’s medical expenses and compensation benefits [see Potter v. McCulla, 288 Neb. 741, 2014 Neb. LEXIS 124 (Aug. 1, 2014).

The hygienist (“Potter”) worked for more than 30 years at a dental office. She worked most of those years for Dr. McCulla. While under McCulla’s employ, she first began to notice pain and discomfort in her neck and she sought medical treatment on her days off. McCulla submitted a first report of injury to the workers’ compensation court and McCulla’s workers’ compensation carrier accepted the claim and paid for the medical expenses associated with some twelve visits. Potter did not, however, miss any time from work. On February 11, 2009, Potter’s pain level became “excruciating” and she left work early to see her physician. This was the first time she missed work due to the pain. By this time, McCulla had sold the dental practice to Garcia. At the request of Garcia’s carrier, Potter was examined by a second physician, who opined that Potter’s neck pain was unrelated to her employment. After receiving the report, Garcia’s carrier refused to pay for any medical care.

Several years later, Potter sought workers’ compensation benefits. The Workers’ Compensation Court determined that the date of the injury was February 11, 2009, the date Potter first missed work to be treated for her injury. Since Garcia was Potter’s employer on the date of the injury, the court held Garcia and its carrier liable for all of Potter’s medical expenses and compensation benefits. Garcia appealed.

Garcia contended in relevant part that while Potter may have shown that her medical condition was caused or aggravated by working for 32 years as a dental hygienist, she had failed to link her injury sufficiently to her employment with Garcia. The high court indicated that was not the standard, that with regard to a repetitive trauma claim, it was sufficient that the injury arose out of her job and that she had performed that job for Garcia. Potter had presented competent evidence that her injury arose from the risks of her employment; she need not pinpoint that it arose from her employment with Garcia.

The court also agreed that Potter’s repetitive trauma injury manifested itself on the day she first missed work due to pain and not a date several years earlier when she first began to feel discomfort. According to the court, the phrase “suddenly and violently” as used in Neb. Rev. Stat. § 48–151(2) did not mean “instantaneously and with force,” but, rather, required only that the injury manifest at an identifiable point in time. That identifiable point in time at which a repetitive trauma injury manifests is when there is a sudden result, characterized by an employee’s discontinuing employment and seeking medical treatment, or when there is a sudden cause, such as a brief exposure to toxic fumes.

The court acknowledged that other jurisdictions applied different tests, but it indicated the test it applied to determine when a repetitive trauma injury occurs “suddenly and violently” was neither inconsistent with the statutory language nor was it unfair or unjust. The court added, “While the test may not be perfect, we are not persuaded that the more subjective approach taken by Iowa and other jurisdictions is better.”

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