Recent Case Law

Nebraska Workers' Compensation Decisions of Note

 

Ludwick v. TriWest Healthcare Alliance and Physicians Clinic, Inc., 267 Neb. 887, 678 NW2d 517 (2004) (April 29, 2004)

 
Facts:  Plaintiff alleged that she developed a latex allergy arising out of and in the course of her employment with defendants, which she claimed required her to cease her employment as a nurse and pursue other employment on or about February 12, 1999.  At trial, the evidence offered indicated that plaintiff first experienced symptoms related to her allergy in 1992 while working for a different employer, Bergan Mercy, who was not a named defendant in her workers compensation claim.  Plaintiff eventually left this employment and from December of 1994 to June of 1997, was employed by defendant Physicians Clinic.  During her employment with Physicians Clinic, plaintiff had continued symptoms requiring treatment and was diagnosed with a latex allergy in 1995.  At this time she was advised to avoid latex.  Plaintiff then began working for defendant TriWest.  After accepting employment at TriWest plaintiff alleged that her symptoms progressively worsened and that she had to resign on February 10, 1999.  A report by Dr. Wampler was offered stating that plaintiff's allergy developed in 1992.  The report further opined that any symptoms suffered by plaintiff after leaving Bergan Mercy were simply recurrences of the latex hypersensitivity and did not represent a worsening of her condition.  Relying on Dr. Wampler's report, the trial court dismissed plaintiff's petition against defendants.  Plaintiff appealed and the decision was affirmed.

 
Issue:  The appropriate date of injury for occupational diseases.

 
Rule:  A worker becomes disabled, and thus injured, from an occupational disease at the time when a permanent medical impairment or medically assessed work restrictions result in labor market access loss.

 
Holding/Reasoning:  The court reasoned that the "discontinuation of employment" standard was framed in the context of establishing an identifiable point in time when an accident occurs "suddenly and violently" within the meaning of §48-151(2).  The court held that such an inquiry is unnecessary in an occupational disease case.  The court further clarified that the phrase "no longer able to render further service" language applied in the occupational disease context refers to nothing other than the date of disability, partial or total, as that term is commonly understood in workers' compensation law.  Taking into consideration the report of Wampler which opined that plaintiff's latex allergy developed during her employment at Bergan and that any reaction after that was recurrent, the court affirmed the judgment of the Court of Appeals and concluded that plaintiff's latex allergy was not causally related to her employment with the named defendants.