Risor v. Nebraska Boiler

Citation765 N.W.2d 170,277 Neb. 679
Decision Date01 May 2009
Docket NumberNo. S-08-726.,S-08-726.
PartiesJames E. RISOR, Appellee, v. NEBRASKA BOILER, Appellant.
CourtSupreme Court of Nebraska

Paul Prentiss and Bill Lamson, of Timmermier, Gross & Prentiss, and John Burns, of Burns Law Firm, Omaha, for appellant.

Martin V. Linscott, of Linscott Law Office, Lincoln, for appellee.




Nebraska Boiler appeals from a review panel's decision of the Workers' Compensation Court. The review panel affirmed the trial judge's order that the appellee, James E. Risor, sustained an accident—a noise-induced hearing loss. It reversed, however, that part of the trial judge's order that determined compensation began on Risor's retirement date. The review panel concluded that the appropriate date for commencing payments was the first date that Risor discontinued work for treatment, instead of the date that he retired and stopped working altogether.

This appeal presents several interrelated questions:

1. Is Risor's noise-induced hearing loss an accident caused by repetitive trauma or an occupational disease caused by a condition of employment?

2. What is the injury date for a noise-induced hearing loss and is that date the same as the date disability begins for calculating compensation?

3. Is Nebraska Boiler entitled to a credit for wages paid to Risor, who continued to work after sustaining a scheduled disability?

4. Did the Workers' Compensation Court correctly find that Nebraska Boiler had knowledge of Risor's injury because it had accommodated his hearing loss, which knowledge excused the written notice requirement for claimants?

5. If Nebraska Boiler had sufficient information to warrant further investigation of Risor's potentially compensable injury but failed to file an injury report, was the statute of limitations tolled for Risor's claim?


Risor began working for Nebraska Boiler in 1973 and did many different jobs in the plant during his 31 years of employment. In manufacturing boilers, Nebraska Boiler's plant generates significant noise levels. In 1988, concerned about his hearing loss, Risor saw a physician at the veterans medical center in Omaha, Nebraska. The records from that examination showed that he had a profound bilateral hearing loss. The records, however, do not mention his work environment as a possible cause of his hearing loss. In June 1993, Risor completed a "Company Care Hearing Questionnaire." By checking affirmative responses, he reported that his hearing was poor and that his hearing had been tested. He double-checked in the space indicating his affirmative response that he had a noisy job. On October 19, Nebraska Boiler referred Risor to a physician for a hearing loss evaluation. The physician wrote a report to Nebraska Boiler's nurse, detailing Risor's severe to profound sensorineural, bilateral hearing loss. The report also stated that Risor had seen two other physicians within the last 10 years.

Risor missed worktime to attend the October 1993 office visit, which was the first time that Risor had missed work because of his hearing loss. Later, Nebraska Boiler evaluated Risor's hearing loss in 1999, 2000, 2002, and 2003.

In January 2004, Risor filed a petition seeking workers' compensation benefits for multiple injuries. Besides his hearing loss, Risor alleged injuries of degenerative arthritis of his shoulders, neck, and knee; carpal tunnel syndrome; and a trigger thumb. On February 12, he retired. Nebraska Boiler filed its first injury report regarding Risor's hearing loss on February 17.

Risor alleged that Nebraska Boiler had notice and knowledge of the accident, which occurred on or about June 25, 2002. Nebraska Boiler answered that Risor had failed to give notice of the injury as soon as practical and that his claim was barred as untimely. In July 2005, another physician reported that Risor had a 100-percent impairment for both ears and that his employment at Nebraska Boiler was a definitive contributor.

At trial in November 2005, the parties first explained their positions to the trial judge. Risor's attorney could not explain the complaint's date of injury—June 25, 2002—except that it was hard to pinpoint the exact date in repetitive trauma cases. The record shows that Risor's trial attorney was not the attorney who filed Risor's complaint. The record also shows that June 25 was one of the dates on which Nebraska Boiler evaluated Risor's hearing. But Risor's counsel argued that Risor's October 1993 examination was possibly a sufficient interruption in employment to constitute a date of injury and that he would present evidence of the events on that date. So, before trial began, Nebraska Boiler knew that Risor was contending that the examination in October 1993 possibly established a date of injury for his hearing loss.

Risor testified that he began noticing in the mid-1980's that he had hearing problems. He thought it was work related because the noise in the plant was so bad. He stated that everyone in the shop knew about his hearing loss and accommodated him. Although his hearing loss interfered with his work, he could lipread for simple instructions and his supervisor would write him notes. His supervisor stated that Risor's hearing problems did not interfere with his ability to perform his duties.

Risor initially stated that he had not missed any work in 1993 when Nebraska Boiler referred him to a physician for a hearing examination, because he went during his lunch break. On cross-examination, however, he stated that he only had half-hour lunch breaks and that the physician's office was 10 to 15 minutes away from the plant. He said that he had probably missed some work that day but that he believed Nebraska Boiler would have reimbursed him for the missed time.

Regarding his other injuries, Risor testified that some of them had started when he was injured after falling from a scaffolding in 1983. He stated that he had continued working at Nebraska Boiler because he could not get another job with his hearing loss and other physical ailments.


In April 2006, the trial judge entered an award for total and permanent disability, finding that Risor had a 100-percent hearing loss. He determined that the accident date was October 19, 1993, when Risor missed work for the referred office visit. And he calculated Risor's benefits based on his average weekly earnings in 1993. But he ordered the payments for total permanent disability to commence on February 12, 2004, when Risor retired.

The trial judge rejected Nebraska Boiler's argument that it did not have notice of Risor's injury as required by Neb.Rev Stat. § 48-133 (Reissue 2004). The judge reasoned that Risor's supervisors had accommodated his hearing loss even before 1988. He also rejected Nebraska Boiler's argument that under Neb.Rev.Stat. § 48-137 (Reissue 2004), Risor's claim was time barred. He concluded that an exception to the limitation period applied because Nebraska Boiler had not filed an injury report until 2004.1


Two attorneys from two different workers' compensation insurers represented Nebraska Boiler for the coverage period from September 1, 1992, to the time of trial. But because the first carrier had misinformed Nebraska Boiler that it was the carrier in 1992, the company's actual carrier for 1992 did not represent Nebraska Boiler at trial. In May 2006, Nebraska Boiler attempted to obtain a new trial so the excluded carrier, Twin City Fire Insurance Company (Twin City), could participate. The trial judge overruled the motion.

Both parties appealed to the review panel. Twin City attempted to intervene so it could request a new trial. The review panel denied intervention. But it stayed adjudication of the parties' appeals while Twin City appealed its denial of intervention. In Risor v. Nebraska Boiler (Risor I),2 we affirmed.


In May 2008, after this court issued its mandate, the review panel issued a decision affirming in part and in part reversing the trial judge's award. In his original appeal to the review panel, Risor had assigned only one error—the trial judge's finding on the injury date. The review panel concluded that the trial judge erred in concluding that total disability benefits were payable to Risor commencing February 12, 2004, when he retired. The panel stated that under Neb.Rev.Stat. § 48-121(3) (Reissue 2004), total loss of hearing in both ears constituted total and permanent disability. Citing Hobza v. Seedorff Masonry, Inc.,3 the review panel modified the award to provide that permanent total indemnity was payable from and after the date of injury—October 19, 1993. Remember, this date was the first time Risor visited the company's physician.


In its cross-appeal to the review panel, Nebraska Boiler assigned that the trial judge erred in determining that Risor's hearing loss was caused by an accident instead of an occupational disease. The review panel recognized that a split of authority existed on the hearing loss issue, but it concluded that the trial judge did not err in evaluating Risor's hearing loss as an accident. Citing Dawes v. Wittrock Sandblasting & Painting,4 it stated that compensation for repetitive trauma injuries should be tested under the statutory definition of an accident. It also noted that the statutory definition of an occupational disease requires a disease to be "`peculiar to a particular trade.'"5 It concluded that applying this requirement "is difficult because a wide variety of trades expose workers to repetitive high noise levels."


The review panel determined that the trial judge was not clearly wrong in finding that the injury date was October...

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