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.
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.
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.
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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