Nebraska Supreme Court Declines to Amend its “Imperfect” Test for Work-Related Repetitive Trauma Injuries

by | Nov 7, 2014

The complexities of repetitive trauma injuries have caused many headaches for Nebraska employers and insurance carriers since these claims became recognized as compensable. Repetitive trauma injuries, by their very nature, differ from typical work-related injuries in that they often develop over a period of months or years, which causes difficulty especially in regard to determining an accurate date of injury.

The Nebraska Supreme Court was recently asked to reevaluate its test for determining the date of injury for repetitive trauma injuries in Potter v. McCulla, 288 Neb. 741, 851 N.W.2d 94 (Aug. 2014). The employee had worked as a dental hygienist for over 25 years when, in late 2007, she began experiencing pain in her neck while working for Dr. McCulla in his dental clinic. In October 2008, while still employed by the dentist, she sought medical treatment for her neck pain, but did not miss work, and continued to treat for her neck pain through January 2009 without missing work. On February 11, 2009, her pain level allegedly became “excruciating” and she left work early to seek treatment. By this time, the dentist had sold his dental practice to Dr. Garcia. The employee’s duties and hours remained the same during and after the ownership change. As the employee described it: “I didn’t switch. The dentists switched.”

Dr. Garcia’s insurance carrier refused to pay for any additional medical care for the employee, so the parties eventually ended up before the Nebraska Workers’ Compensation Court. The Court found that the employee had preexisting conditions in her neck which were aggravated by her duties as a dental hygienist and awarded benefits based on a 40% loss of earning capacity. The Court also determined that the date of injury was February 11, 2009, the date she left work early to seek treatment. Because Dr. Garcia was the employee’s employer on the date of injury, the Court held Dr. Garcia liable for all of the employee’s medical expenses and compensation benefits. Dr. Garcia appealed and his petition to bypass the Nebraska Court of Appeals was granted.

Dr. Garcia first argued to the Nebraska Supreme Court that the compensation court erred in finding the employee proved a causal connection between her injuries and her employment with Dr. Garcia. Specifically, he alleged that the employee failed in her burden of proof because although she “establish[ed] that she suffered from an aggravation of a pre-existing condition and that the same was related to her work as a dental hygienist over her 32 year career,” she did not present sufficient evidence “linking her alleged injury and disability to her employment with… Garcia.”

The Nebraska Supreme Court disagreed, noting that the employee did not have to prove that her injury arose out of her employment with Dr. Garcia. The Court explained: “An employee is entitled to compensation in Nebraska for personal injury caused by an accident arising out of and in the course of his or her employment. [Neb. Rev. Stat. §48-101.] The phrase ‘arising out of’ describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope or sphere of the employee’s job.” The Court held that the employee’s proffered medical opinion “established a causal relationship between Potter’s work as a dental hygienist and her injury. It is undisputed that she worked as a dental hygienist for Garcia. Thus, Potter presented competent evidence that her injury arose from the risks arising within the scope or sphere of her employment, even if she cannot pinpoint that it arose directly as a result of her employment with Garcia.” The finding of the compensation court in this regard was affirmed.

Next, Dr. Garcia argued that the compensation court erred in determining that the date of injury was February 11, 2009. In Nebraska, the compensability of repetitive trauma injuries is tested under the statutory definition of “accident.” An “accident” is “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” Neb. Rev. Stat. §48-151(2). The Court noted that it has previously reasoned that the phrase “suddenly and violently” does not mean “instantaneously and with force,” but rather requires only that the injury manifest at an identifiable point in time. Additionally, the Court has reasoned that the “identifiable point in time” is “when there is a sudden result, characterized by an employee’s discontinuing employment and seeking medical treatment.”

Dr. Garcia maintained that the Court’s interpretation of “suddenly and violently” as requiring an employee to both (1) seek medical attention and (2) discontinue employment is unfair to part-time workers and night-shift workers, who often seek medical treatment during non-work hours, and to subsequent employers, such as Dr. Garcia, in cases in which the symptoms of the injury surfaced and the employee sought medical treatment during his or her tenure with a previous employer. After comparing the Nebraska analysis for dates of injury of repetitive trauma injuries with similar tests adopted by other states, the Court ultimately acknowledged that the Nebraska analysis is not perfect but determined there is no better solution to the difficult question of determining the date of injury for a repetitive trauma claim. The Court therefore declined to overrule its precedent and affirmed the decision of the compensation court.

Clearly, repetitive trauma injuries raise a number of issues that can prove to be quite complex. For this reason, we advise all employers and insurance carriers facing a repetitive trauma claim to consult legal counsel when questions arise so that their interests can be adequately protected. For more information about repetitive trauma claims and how to handle them, please contact Sara Hughes at or call (402) 475-1075 to speak with any of the Baylor Evnen Workers’ Compensation attorneys.