Morris v. Nebraska Health System

• Decision Date: 11 July 2003
• Docket Number: No. S-01-1194.,S-01-1194.
• Citation: 266 Neb. 285,664 N.W.2d 436
• Parties: Barbara MORRIS, Appellee, v. NEBRASKA HEALTH SYSTEM, Appellant, and Sedgwick Claims Management Services, Inc., and University of Nebraska Medical Center, Appellees.
• Court: Nebraska Supreme Court

664 N.W.2d 436

266 Neb. 285

Barbara MORRIS, Appellee, v. NEBRASKA HEALTH SYSTEM, Appellant, and Sedgwick Claims Management Services, Inc., and University of Nebraska Medical Center, Appellees.

No. S-01-1194.

Supreme Court of Nebraska.

July 11, 2003.

Robert D. Mullin, Jr., and William J. Birkel, of McGrath, North, Mullin & Kratz, Omaha, for appellant.

James E. Harris and Britany S. Shotkoski, of Harris, Feldman Law Offices, Omaha, for appellee Barbara Morris.

Don Stenberg, Attorney General, and Hobert B. Rupe for appellee University of Nebraska Medical Center.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

INTRODUCTION

Nebraska Health System (NHS) seeks further review of the decision of the Nebraska Court of Appeals in Morris v. Nebraska Health System, No. A-01-1194, 2002 WL 31360609 (Neb.App. Oct.22, 2002) (not designated for permanent publication). NHS contends the Court of Appeals erred in affirming the trial judge's finding that Barbara Morris' date of injury was the day she ceased employment with NHS due to her latex allergy. NHS also contends the Court of Appeals erred in affirming the trial judge's finding that Morris' last injurious exposure to latex occurred while employed by NHS.

FACTUAL BACKGROUND

Morris was initially employed by the University of Nebraska Medical Center (UNMC) from 1983 through 1991. She did not work full time in 1992 and 1993 due to reasons unrelated to the issues in this case. In 1993, Morris returned to work at UNMC in the radiation oncology department. In June 1998, UNMC and Clarkson Hospital merged to form NHS. Although Morris continued working in the same position after the merger, her employer was now NHS.

In 1994, Morris reduced her work schedule to 32 hours per week, as she was experiencing fatigue and shortness of breath. In the spring of 1998, prior to commencing employment with NHS, Morris further limited her work schedule to 24 hours per week due to continuing symptoms later associated with a latex allergy. On October 9, 1998, while performing employment-related functions, Morris suffered a reaction to latex that required her to go to the emergency room to receive medical treatment. Morris ceased employment with NHS after this incident.

Morris subsequently filed a petition seeking benefits with the compensation court. A hearing was held on November 27, 2000. Morris testified and submitted, inter alia, medical records of several doctors who treated her, as well as a vocational rehabilitation counselor's evaluation and earnings capacity assessment. At this hearing, the parties stipulated that Morris suffered from a "Type I" work-related latex allergy.

Morris testified that while working at UNMC in the 1980's, her hands would break out in a rash after being exposed to the powder in latex gloves. As early as 1994, Morris began experiencing fatigue and shortness of breath. Morris testified that by 1996, existing gastrointestinal problems began to worsen. Prior to 1998, Morris also began experiencing hoarseness in her voice. Morris' latex allergy was first diagnosed on March 22, 1997, while she was employed by UNMC. However, the record indicates that the connection between Morris' latex allergy and her decline in health was not established until after Morris ceased employment in October 1998.

Dr. Ronald C. McGarry worked with Morris in the radiation oncology department and was also one of Morris' treating physicians. Dr. McGarry stated in a letter dated October 28, 1998, that Morris' latex allergy would have a "negative impact on her ability ... to earn a good livelihood." Dr. McGarry also stated that "other employment will be difficult to obtain without exposure to the wide variety of latex-like compounds in the environment." In a second letter, dated April 8, 2000, Dr. McGarry indicated that he worked closely with Morris until she withdrew from the radiation oncology department due to her health and that he had "directly observed her problems and [knew of] her high titre of reactivity to latex." Dr. McGarry also reiterated his concern that Morris would find it difficult to "obtain employment in a safe environment." In a third letter, dated October 16, 2000, Dr. McGarry again indicated he had the opportunity to directly observe Morris' "decline in health," and opined that Morris' latex allergy "makes it all but impossible for her to perform her nursing career."

Finally, in a report dated October 16, 2000, the vocational rehabilitation counselor opined that Morris was an "odd lot worker, since suitable work would not be regularly and continuously available to her."

On February 21, 2001, the trial judge of the Workers' Compensation Court entered an award finding that Morris' disability began on October 9, 1998, while she was employed by NHS. Although finding that Morris was first diagnosed with a latex allergy while employed by UNMC, the judge determined that Morris "sustained an accident and injury on October 9, 1998, at the time she was employed by [NHS]" and that as a result, Morris was permanently and totally disabled.

On October 3, 2001, a review panel of the compensation court affirmed the trial judge's decision. NHS timely appealed, and the Court of Appeals affirmed in an unpublished opinion. Morris v. Nebraska Health System, No. A-01-1194, 2002 WL 31360609 (Neb.App. Oct.22, 2002) (not designated for permanent publication). In that opinion, the Court of Appeals determined that the date of injury in an occupational disease case is the date on which the employee's diagnosed condition progresses to the point where his or her employment, or type of employment, ceases. Therefore, the Court of Appeals concluded that the trial judge was not clearly wrong in finding that Morris' date of injury was October 9, 1998. The Court of Appeals further determined that Morris' last injurious exposure to latex occurred on that same date, which was during her employment with NHS. NHS petitioned for further review, which this court granted.

ASSIGNMENTS OF ERROR

NHS contends, rephrased, that the Court of Appeals erred in affirming the trial judge's findings that (1) Morris' injury date was October 9, 1998, and (2) Morris' October 9, 1998, exposure to latex was injurious under the "last injurious exposure" rule. NHS argues that such findings are inconsistent with our holdings in Jordan v. Morrill County, 258 Neb. 380, 603 N.W.2d 411 (1999), and Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001). NHS does not assign as error the trial judge's finding that Morris is permanently and totally disabled.

STANDARD OF REVIEW

An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court did not support the order or award. Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003); Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002).

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002); Vonderschmidt, supra.

Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Frauendorfer, supra.

An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002); Vega, supra.

ANALYSIS

DATE OF INJURY

In its first assignment of error, NHS argues the Court of Appeals erred in affirming the trial judge's finding that the date of Morris' injury was October 9, 1998. NHS contends that in so determining, the Court of Appeals erroneously established a new standard for the determination of the date of injury in an occupational disease case.

We first addressed the date of injury in an occupational disease case in Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956). We stated that

"[w]here an occupational disease results from the continual absorption of small quantities of some deleterious substance from the environment of the employment over a considerable period of time, an afflicted employee can be held to be `injured' only when the accumulated effects of the substance manifest themselves, which is when the employee becomes disabled and entitled to compensation; and the `date of injury', within the meaning of the Workmen's Compensation Act, is the date when the disability is first incurred, and the six months' period of limitations runs from that date and not from the time the employee has knowledge of the disease."

163 Neb. at 61, 77 N.W.2d at 687. We concluded that under the facts presented, Hauff's injury, thus his disability, manifested itself in July 1954, when Hauff was prohibited from continuing his employment due to employment-related pneumoconiosis silicosis.

Similarly, in Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981), we concluded that Osteen's disability manifested itself on the day he entered the hospital, February 1, 1977. That date was Osteen's last day at work, as he was subsequently unable to continue in his employment due to an abdominal disorder, later determined to be employment-related peritoneal mesothelioma.

We were again faced with determining when an employee's occupational disease manifested itself in disability in Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995). We concluded that "the date that determines liability is the date that the employee becomes disabled...