Potter v. Patrick S. Mcculla & Hartford Underwriters Ins. Co.
| Decision Date | 01 August 2014 |
| Docket Number | No. S-13-944,S-13-944 |
| Parties | Barbara L. Potter, appellee, v. Patrick S. McCulla and Hartford Underwriters Insurance Company, appellees, and Tracy N. Garcia, D.D.S., L.L.C., and FirstComp Insurance Company, appellants. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Workers' Compensation Court: J. Michael Fitzgerald, Judge. Affirmed.
Brynne E. Holsten and L. Tyler Laflin, of Engles, Ketcham, Olson & Keith, P.C., for appellants.
Joel D. Nelson, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., for appellee Barbara L. Potter.
Julie A. Jorgensen, of Morrow, Willnauer, Klosterman & Church, L.L.C., for appellees Patrick S. McCulla and Hartford Underwriters Insurance Company.
1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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 do not support the order or award.
2. Workers' Compensation: Appeal and Error. 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; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong.
3. Workers' Compensation: Proof. To recover under the Nebraska Workers' Compensation Act, a claimant must prove by a preponderance of the evidence that an accident or occupational disease arising out of and occurring in the course of employment caused an injury which resulted in disability compensable under the act.
4. Workers' Compensation: Expert Witnesses. Unless its nature and effect are plainly apparent, an injury is a subjective condition requiring an expert opinion to establish the causal relationship between the employment and the injury or disability.
5. Workers' Compensation. The issue of causation of an injury or disability is one for determination by the trier of fact.
6. Workers' Compensation: Appeal and Error. 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. 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.
7. Workers' Compensation: Time: Proof: Words and Phrases. The phrase “suddenly and violently” as used in Neb.Rev.Stat. § 48–151(2) (Reissue 2004) does not mean “instantaneously and with force,” but, rather, requires only that the injury manifest at an identifiable point in time.
8. Workers' Compensation: Time: Proof. The 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.
9. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.
10. Courts: Public Policy. The doctrine of stare decisis is grounded on public policy and, as such, is entitled to great weight and must be adhered to unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so.
Barbara L. Potter suffered a repetitive trauma injury as a result of her employment as a dental hygienist over a period of more than 30 years. We conclude the Nebraska Workers' Compensation Court properly determined that her injury manifested itself on February 11, 2009, during Potter's employment with Dr. Tracy Garcia, and that Garcia and Garcia's workers' compensation carrier are liable for all of Potter's medical expenses and compensation benefits.
Potter began working as a dental hygienist in 1981. She has worked 3 to 4 days per week throughout her career. In late 2007 or early 2008, while working in a dental clinic for Dr. Patrick McCulla, Potter began experiencing pain in her neck. The pain was more intense toward the end of her workday, and Potter thought it was caused by the manner in which she positioned herself over patients while working. Potter saw 8 to 12 patients a day and spent the majority of her worktime with her head tilted and her arms raised.
On October 17, 2008, while still employed by McCulla, Potter sought medical treatment for her neck pain from Dr. Donald Walla. Walla prescribed oral steroids and physical therapy but did not assign any work restrictions. On October 22, Potter told McCulla about her symptoms and that she had sought medical treatment. She also told McCulla that Walla thought her neck problems were related to her work. On November 5, McCulla submitted a first report of injury to the workers' compensation court. Hartford Underwriters Insurance Company, McCulla'sinsurance carrier, accepted the injury claim and paid the medical expenses Potter incurred as a result of her neck pain.
Potter received medical treatment for her pain 12 times between October 17, 2008, and January 20, 2009. She sought this treatment during her off hours and days and did not miss any work during this time. On February 11, 2009, Potter's pain level became “excruciating” and she left work early to see Walla. This was the first time she missed work due to the pain. By this time, McCulla had sold the dental practice to Garcia. Potter's duties and hours remained the same during and after the ownership change. As Potter described it: “ ”
After February 11, 2009, Potter continued to receive medical treatment for her neck pain. In September 2010, she was examined by Dr. D.M. Gammel at the request of Garcia's insurance carrier, FirstComp Insurance Company (FirstComp). Gammel opined that the cause of her pain was a “pre-existing and progressive degenerative cervical disc condition” and that her awkward positions at work were not the cause of her condition. He expressly opined that her condition was “unrelated to a work related injury” and explained that continued work as a dental hygienist might “intensify her awareness of the symptoms” of her condition but was “not the cause of such.” After receiving this report, FirstComp refused to pay for any additional medical care for Potter.
Potter left her employment with Garcia in June 2011 to accept a position as a dental hygienist with another clinic, where she worked 3 days a week. She continued to feel pain in her neck, and in June 12, 2012, she sought treatment with Dr. Phillip Essay of the Spine and Pain Center of Nebraska. In July 2012, Essay imposed permanent work restrictions of working only 3 days per week. Essay opined that Potter had “degenerative spondylosis in her cervical spine” that was “aggravated by the repetitive work duties and postures required in her work as a dental hygienist,” although he acknowledged it was “impossible to state to any reasonable degree of medical certainty which of her positions as a dental hygienist caused what and/ or when.”
On June 4, 2012, Potter filed a petition in the Nebraska Workers' Compensation Court seeking benefits. That court found Potter had preexisting conditions in her neck which were aggravated by her duties as a dental hygienist and awarded benefits based on a 40–percent loss of earning capacity. It determined that the date of the injury was February 11, 2009, as that was the date she first missed work to be treated for her injury. Because Garcia was Potter's employer on the date of the injury, the court held Garcia and FirstComp liable for all of Potter's medical expenses and compensation benefits.
Garcia and FirstComp filed this timely appeal. We granted their petition to bypass the Nebraska Court of Appeals and moved the case to our docket.
Garcia and FirstComp assign that the compensation court erred in (1) finding Potter proved a causal connection between her injuries and her employment with Garcia and (2) determining the date of injury was February 11, 2009. With respect to the second assignment of error, Garcia and FirstComp ask this court to reconsider the test we apply when determining whether the statutory requirement of “suddenly and violently” in Neb.Rev.Stat. § 48–151(2) (Reissue 2010) is met as to repetitive trauma injuries.
A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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 do not support the order or award.1
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; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong.2
To recover under the Nebraska Workers' Compensation Act,3 a claimant must prove by a preponderance of the evidence that an accident or occupational disease arising out of and occurring in the course of employment caused an injury which resulted in disability...
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