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Nebraska Supreme Court – Another Bad Decision


Nebraska Supreme Court Makes Surprising Decision

The Nebraska Supreme Court as State Supreme Courts seem to do more often lately- affirmed the Workers Comp court’s decision in one of those cases that send a chill throughout the Workers Compensation community.

Front Nebraska Supreme Court Dusk
Wikimedia commons – Noclip at en.wikipedia

The full decision can be found here.   This is a .PDF file that requires a PDF reader that can be found for free here.

Last year, the Nebraska Supreme court made a similar ruling concerning an employee that voluntarily leaves an employer for a higher paying job.

I was reading a very recent article on the case that surely seemed to be a proper denial by the insurance carrier.  A 30-year career dental hygienist had filed a claim against her most recent employer even though she had earlier sought medical treatment with a different employer and carrier that actually paid for her medical benefits.   The case is Potter v. McCulla.

The most recent WC carrier sent the employee for an evaluation where the physician did not relate the injury to her current work.  The physician’s exact words were “pre-existing and progressive degenerative cervical disc condition.” The current WC carrier denied benefits.

The claimant then went to treat on her own and self-reduced her work hours to three days per week.

overview of Nebraska Supreme Court state capitol
Wikimedia Commons – Capitolist

From the Nebraska Supreme Court decision:

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 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.

The claimant filed a petition with the Nebraska Workers Comp court.  The court awarded Ms. Potter benefits.  The carrier decided to appeal it directly to the Supreme Court and not the Nebraska Court of Appeals. The dentist,  defense attorney, and carrier should have known they were in trouble when the Nebraska Supreme court started referring to Oklahoma’s expanded definition of an accident.  There was enough precedent in Nebraska without looking outside the state.

Female Judge Nebraska Supreme Court Holding Gavel
(c) stockunlimited

The Nebraska Supreme Court delved very heavily into the definition of an accident and ruled that the first time that the claimant had to leave work was the date of the accident.  I will pick this back up tomorrow as the article is becoming too much material to cover in one article/post. The case is worth a quick read.  You can follow the links above to see it.

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James J Moore - Workers Comp Expert

Raleigh, NC, United States

About The Author...

James founded a Workers’ Compensation consulting firm, J&L Risk Management Consultants, Inc. in 1996. J&L’s mission is to reduce our clients’ Workers Compensation premiums by using time-tested techniques. J&L’s claims, premium, reserve and Experience Mod reviews have saved employers over $9.8 million in earned premiums over the last three years. J&L has saved numerous companies from bankruptcy proceedings as a result of insurance overpayments.

James has over 27 years of experience in insurance claims, audit, and underwriting, specializing in Workers’ Compensation. He has supervised, and managed the administration of Workers’ Compensation claims, and underwriting in over 45 states. His professional experience includes being the Director of Risk Management for the North Carolina School Boards Association. He created a very successful Workers’ Compensation Injury Rehabilitation Unit for school personnel.

James’s educational background, which centered on computer technology, culminated in earning a Masters of Business Administration (MBA); an Associate in Claims designation (AIC); and an Associate in Risk Management designation (ARM). He is a Chartered Financial Consultant (ChFC) and a licensed financial advisor. The NC Department of Insurance has certified him as an insurance instructor. He also possesses a Bachelors’ Degree in Actuarial Science.

LexisNexis has twice recognized his blog as one of the Top 25 Blogs on Workers’ Compensation. J&L has been listed in AM Best’s Preferred Providers Directory for Insurance Experts – Workers Compensation for over eight years. He recently won the prestigious Baucom Shine Lifetime Achievement Award for his volunteer contributions to the area of risk management and safety. James was recently named as an instructor for the prestigious Insurance Academy.

James is on the Board of Directors and Treasurer of the North Carolina Mid-State Safety Council. He has published two manuals on Workers’ Compensation and three different claims processing manuals. He has also written and has been quoted in numerous articles on reducing Workers’ Compensation costs for public and private employers. James publishes a weekly newsletter with 7,000 readers.

He currently possess press credentials and am invited to various national Workers Compensation conferences as a reporter.

James’s articles or interviews on Workers’ Compensation have appeared in the following publications or websites:

  • Risk and Insurance Management Society (RIMS)
  • Entrepreneur Magazine
  • Bloomberg Business News
  • WorkCompCentral.com
  • Claims Magazine
  • Risk & Insurance Magazine
  • Insurance Journal
  • Workers Compensation.com
  • LinkedIn, Twitter, Facebook and other social media sites
  • Various trade publications


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