Tuesday, August 5, 2014


The tough thing about The Law is that sometimes we don't like it's application to us.

Yesterday I whined about New York and what I perceived as opportunistic bureaucratic business wrangling for the sake of governmental revenue enhancement at the expense of small business.

Indeed, the piece received a lot of attention in the LinkedIn world where brokers and risk managers basically confirmed that if you're a small business in New York, or doing business in the state, you don't have much of a chance agains the machine.

But sometimes The Law just isn't well understood because, particularly in a system such as workers' compensation, there is no correlation to logic. Nothing in real life actually prepares normal people for the implausibility of comp.

A dentist in Nebraska and her insurance carrier found that out.

Barbara Potter began her work as a dental hygienist for Patrick McCulla, DDS, around 1981. In late 2007 or early 2008, after more than 25 years on the job, Potter said she began having problems with pain in her neck.

She asserted that the pain was more intense toward the end of her workday on the days she worked, so she suspected it had something to do with the way she was positioning herself over her patients while she worked.
Bowzer's pain has occupational ties.
Potter sought medical treatment for her neck pain from Dr. Donald Walla in October 2008. Walla prescribed oral steroids and physical therapy but did not assign any work restrictions.

After this visit Potter told her employer, Dr. McCulla, about her symptoms and that she thought her neck problems were related to her work.

McCulla then submitted a report of injury to the Workers' Compensation Court and his insurance carrier, Hartford Underwriters, accepted Potter's condition as compensable.

Potter continued to see Dr. Walla through January 2009, but she was able to schedule all of her visits around her work schedule, so she didn't miss any work.

Meanwhile, McCulla sold his dental practice to Dr. Tracy Garcia.

Garcia's insurance carrier, the FirstComp Insurance Co., asked Potter to go see Dr. D. M. Gammel in September 2010.

Gammel opined that the cause of Potter's neck pain was a pre-existing and progressive degenerative cervical disc condition that was completely unrelated to her work. After receiving this report, FirstComp refused to pay for any additional medical care for Potter.

Potter left her job at Garcia's clinic in June 2011 and began working at another dental clinic.

After a year at her new job, Potter sought treatment with Dr. Phillip Essay for her neck. Essay reported that Potter had degenerative spondylosis in her cervical spine that was being aggravated by her work as a dental hygienist, but he said it was "impossible" for him to be able to say how much of the aggravation was caused by her work with any of her prior employers.

Based on Essay's report, Potter filed a petition in the Nebraska Workers' Compensation Court seeking benefits for her neck injury.

The Workers' Compensation Court Judge found Potter had pre-existing conditions in her neck which were aggravated by her duties as a dental hygienist and awarded benefits based on a 40% loss-of-earning capacity.

Fitzgerald post-dated the award to February 2009, when Potter first began to miss work for her injury.

Because Garcia was Potter's employer at that time, the judge held Garcia and FirstComp liable for all of Potter’s medical expenses and compensation benefits.

Garcia and FirstComp appealed, and the Supreme Court elected to have the matter bypass the Court of Appeals and come directly to its docket.

The Supreme Court said that Potter did not have to prove that her injury arose out of her employment with Garcia in order to get an award of benefits. To get benefits, the court said, all Potter had to do was prove that she suffered an injury from an accident "arising out of and in the course of" her employment.

The phrase "arising out of" describes the accident and its origin, cause and character, the court explained, and the court reasoned that Dr. Essay's opinion constituted competent evidence that Potter's injury arose from her employment.

Since Potter's injury was caused by repetitive trauma, the court noted, Dr. Essay said he could not pinpoint the exact date of injury to a reasonable degree of medical certainty, but Nebraska's courts – since 1999 – have been using the date that a worker has both received medical treatment and missed work due to the injury as the date of injury.

The defendants tried to argue that Nebraska should recognize how other states look at such cases - that a repetitive trauma injury manifests when both the fact of the injury and the causal relationship of the injury to the claimant’s employment are plainly apparent to a reasonable person.

The Supreme Court of Nebraska said it's not Iowa, nor Oklahoma, nor Kentucky.

Because that's The Law in Nebraska...

The case is Potter v. McCulla, No. S-13-944.

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