Potter v. McCulla

Nebraska Advance Sheets
POTTER v. McCULLA 741
Cite as 288 Neb. 741
Tolbert’s cousin approached him and threatened to have Cayou
“‘jumped’” unless Cayou said that Tolbert was not the shooter.
There was further evidence to show that the scenario as
explained by Cayou was possible, given the housing arrange-
ment at the Douglas County Correctional Center.
We review the denial of a motion for new trial for an abuse
of discretion. The district court did not abuse its discretion in
denying the motion for new trial in light of Cayou’s second
affidavit and explanation.
Tolbert’s third assignment of error is without merit.
CONCLUSION
The decision of the district court is affirmed.
Affirmed.
Barbara L. Potter, appellee, v. Patrick S. McCulla
and H artford Underwriters I nsurance Company,
appellees, and Tracy N. Garcia, D.D.S., L.L.C.,
and First Comp I nsurance Company, appellants.
___ N.W.2d ___
Filed August 1, 2014. No. S-13-944.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court review panel, a higher appellate
court reviews the findings of the trial judge who conducted the original hear-
ing; the findings of fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
3. Workers’ Compensation: Proof. To recover under the Nebraska Workers’
Compensation Act, a claimant must prove by a preponderance of the evidence
that an accident or occupational disease arising out of and occurring in the course
of employment caused an injury which resulted in disability compensable under
the act.
4. Workers’ Compensation: Expert Witnesses. Unless its nature and effect
are plainly apparent, an injury is a subjective condition requiring an expert
Nebraska Advance Sheets
742 288 NEBRASKA REPORTS
opinion to establish the causal relationship between the employment and the
injury or disability.
5. Workers’ Compensation. The issue of causation of an injury or disability is one
for determination by the trier of fact.
6. Workers’ Compensation: Appeal and Error. An employee is entitled to com-
pensation in Nebraska for personal injury caused by an accident arising out of
and in the course of his or her employment. The phrase “arising out of” describes
the accident and its origin, cause, and character, i.e., whether it resulted from the
risks arising within the scope or sphere of the employee’s job.
7. Workers’ Compensation: Time: Proof: Words and Phrases. The phrase “sud-
denly and violently” as used in Neb. Rev. Stat. § 48-151(2) (Reissue 2004) does
not mean “instantaneously and with force,” but, rather, requires only that the
injury manifest at an identifiable point in time.
8. Workers’ Compensation: Time: Proof. The identifiable point in time at which a
repetitive trauma injury manifests is when there is a sudden result, characterized
by an employee’s discontinuing employment and seeking medical treatment, or
when there is a sudden cause, such as a brief exposure to toxic fumes.
9. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment, it is
presumed that the Legislature has acquiesced in the court’s interpretation.
10. Courts: Public Policy. The doctrine of stare decisis is grounded on public policy
and, as such, is entitled to great weight and must be adhered to unless the reasons
therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and
mischievous or unless more harm than good will result from doing so.
Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Affirmed.
Brynne E. Holsten and L. Tyler Laflin, of Engles, Ketcham,
Olson & Keith, P.C., for appellants.
Joel D. Nelson, of Keating, O’Gara, Nedved & Peter, P.C.,
L.L.O., for appellee Barbara L. Potter.
Julie A. Jorgensen, of Morrow, Willnauer, Klosterman &
Church, L.L.C., for appellees Patrick S. McCulla and Hartford
Underwriters Insurance Company.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Stephan, J.
Barbara L. Potter suffered a repetitive trauma injury as a
result of her employment as a dental hygienist over a period
Nebraska Advance Sheets
POTTER v. McCULLA 743
Cite as 288 Neb. 741
of more than 30 years. We conclude the Nebraska Workers’
Compensation Court properly determined that her injury mani-
fested itself on February 11, 2009, during Potter’s employment
with Dr. Tracy Garcia, and that Garcia and Garcia’s workers’
compensation carrier are liable for all of Potter’s medical
expenses and compensation benefits.
FACTS
Potter began working as a dental hygienist in 1981. She has
worked 3 to 4 days per week throughout her career. In late
2007 or early 2008, while working in a dental clinic for Dr.
Patrick McCulla, Potter began experiencing pain in her neck.
The pain was more intense toward the end of her workday, and
Potter thought it was caused by the manner in which she posi-
tioned herself over patients while working. Potter saw 8 to 12
patients a day and spent the majority of her worktime with her
head tilted and her arms raised.
On October 17, 2008, while still employed by McCulla,
Potter sought medical treatment for her neck pain from Dr.
Donald Walla. Walla prescribed oral steroids and physical
therapy but did not assign any work restrictions. On October
22, Potter told McCulla about her symptoms and that she had
sought medical treatment. She also told McCulla that Walla
thought her neck problems were related to her work. On
November 5, McCulla submitted a first report of injury to the
workers’ compensation court. Hartford Underwriters Insurance
Company, McCulla’s insurance carrier, accepted the injury
claim and paid the medical expenses Potter incurred as a result
of her neck pain.
Potter received medical treatment for her pain 12 times
between October 17, 2008, and January 20, 2009. She sought
this treatment during her off hours and days and did not miss
any work during this time. On February 11, 2009, Potter’s pain
level became “excruciating” and she left work early to see
Walla. This was the first time she missed work due to the pain.
By this time, McCulla had sold the dental practice to Garcia.
Potter’s duties and hours remained the same during and after
the ownership change. As Potter described it: “‘I didn’t switch.
The dentists switched.’”
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744 288 NEBRASKA REPORTS
After February 11, 2009, Potter continued to receive medi-
cal treatment for her neck pain. In September 2010, she was
examined by Dr. D.M. Gammel at the request of Garcia’s
insurance carrier, FirstComp Insurance Company (FirstComp).
Gammel opined that the cause of her pain was a “pre-existing
and progressive degenerative cervical disc condition” and that
her awkward positions at work were not the cause of her con-
dition. He expressly opined that her condition was “unrelated
to a work related injury” and explained that continued work
as a dental hygienist might “intensify her awareness of the
symptoms” of her condition but was “not the cause of such.”
After receiving this report, FirstComp refused to pay for any
additional medical care for Potter.
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
2012, Essay imposed permanent work restrictions of working
only 3 days per week. Essay opined that Potter had “degenera-
tive 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 “impos-
sible to state to any reasonable degree of medical certainty
which of her positions as a dental hygienist caused what and/
or when.”
On June 4, 2012, Potter filed a petition in the Nebraska
Workers’ Compensation Court seeking benefits. That court
found Potter had preexisting conditions in her neck which were
aggravated by her duties as a dental hygienist and awarded
benefits based on a 40-percent loss of earning capacity. It
determined that the date of the injury was February 11, 2009,
as that was the date she first missed work to be treated for her
injury. Because Garcia was Potter’s employer on the date of
the injury, the court held Garcia and FirstComp liable for all of
Potter’s medical expenses and compensation benefits.
Garcia and FirstComp filed this timely appeal. We granted
their petition to bypass the Nebraska Court of Appeals and
moved the case to our docket.
Nebraska Advance Sheets
POTTER v. McCULLA 745
Cite as 288 Neb. 741
ASSIGNMENTS OF ERROR
Garcia and FirstComp assign that the compensation court
erred in (1) finding Potter proved a causal connection between
her injuries and her employment with Garcia and (2) determin-
ing the date of injury was February 11, 2009. With respect to
the second assignment of error, Garcia and FirstComp ask this
court to reconsider the test we apply when determining whether
the statutory requirement of “suddenly and violently” in Neb.
Rev. Stat. § 48-151(2) (Reissue 2010) is met as to repetitive
trauma injuries.
STANDARD OF REVIEW
[1] A judgment, order, or award of the Workers’ Compensation
Court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in
excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evi-
dence in the record to warrant the making of the order, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award.1
[2] In determining whether to affirm, modify, reverse, or set
aside a judgment of the Workers’ Compensation Court review
panel, a higher appellate court reviews the findings of the
trial judge who conducted the original hearing; the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.2
ANALYSIS
Causation
[3-5] To recover under the Nebraska Workers’ Compensation
Act,3 a claimant must prove by a preponderance of the evi-
dence that an accident or occupational disease arising out of
1
Hynes v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013);
Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 (2013).
2
Hynes, supra note 1; Pearson v. Archer-Daniels-Midland Milling Co., 285
Neb. 568, 828 N.W.2d 154 (2013).
3
See Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2010, Cum. Supp.
2012 & Supp. 2013).
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746 288 NEBRASKA REPORTS
and occurring in the course of employment caused an injury
which resulted in disability compensable under the act.4 Unless
its nature and effect are plainly apparent, an injury is a sub-
jective condition requiring an expert opinion to establish the
causal relationship between the employment and the injury or
disability.5 The issue of causation of an injury or disability is
one for determination by the trier of fact.6
Garcia and FirstComp allege that Potter failed in her burden
of proof because although she “establish[ed] that she suffered
from an aggravation of a pre-existing condition and that the
same was related to her work as a dental hygienist over her
32 year career,” she did not present sufficient evidence “link-
ing her alleged injury and disability to her employment with
. . . Garcia.”7
[6] But Potter did not have to specifically prove that her
injury arose out of her employment with Garcia. An employee
is entitled to compensation in Nebraska for personal injury
caused by an accident arising out of and in the course of his
or her employment.8 The phrase “arising out of” describes the
accident and its origin, cause, and character, i.e., whether it
resulted from the risks arising within the scope or sphere of
the employee’s job.9 In Tomlin v. Densberger Drywall,10 the
4
§ 48-101; Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170
(2009).
5
See Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854
(1991). See, also, Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d
49 (2008); Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57
(1998).
6
See, Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002);
Liberty v. Colonial Acres Nsg. Home, 240 Neb. 189, 481 N.W.2d 189
(1992).
7
Brief for appellants at 17.
8
§ 48-101.
9
See, Zoucha v. Touch of Class Lounge, 269 Neb. 89, 690 N.W.2d 610
(2005); Tomlin v. Densberger Drywall, 14 Neb. Ct. App. 288, 706 N.W.2d 595
(2005).
10
Tomlin, supra note 9.
Nebraska Advance Sheets
POTTER v. McCULLA 747
Cite as 288 Neb. 741
Court of Appeals addressed a similar situation. There, the
employee had worked for his current employer for 2 years, but
had worked as a drywaller for 30 years. The medical evidence
established that the cumulative repetitive task of drywalling
was the cause of the injury. The Court of Appeals held:
Because [the medical doctors] opined that overhead
work and heavy lifting contributed . . . to [the] shoulder
injury, and because [the employee] testified that he per-
formed lots of overhead work and heaving lifting at [his
current employer], the trial court did not err in determin-
ing that [the] injury resulted from the risks arising within
the scope or sphere of his [current] employment . . . , i.e.,
overhead work and heaving lifting.11
A similar analysis applies here. Essay’s opinion established
a causal relationship between Potter’s work as a dental hygien-
ist and her injury. It is undisputed that she worked as a dental
hygienist for Garcia. Thus, Potter presented competent evi-
dence that her injury arose from the risks arising within the
scope or sphere of her employment, even if she cannot pinpoint
that it arose directly as a result of her employment with Garcia.
The compensation court did not err in finding there was a
causal relationship between the injury and Potter’s employment
as a dental hygienist.
Date of Injury
Potter’s injury was caused by repetitive trauma. In Nebraska,
the compensability of repetitive trauma injuries is tested under
the statutory definition of accident.12 An accident is “an unex-
pected or unforeseen injury happening suddenly and violently,
with or without human fault, and producing at the time objec-
tive symptoms of an injury.”13 Here, both parties agree that the
injury to Potter was “unexpected or unforeseen” and that it
11
Id. at 297, 706 N.W.2d at 605.
12
E.g., Swoboda v. Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166
(2004).
13
§ 48-151(2).
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748 288 NEBRASKA REPORTS
p
­ roduced “objective symptoms of an injury.” They also agree
that it happened “suddenly and violently.” However, they dis-
pute when it happened “suddenly and violently.” Resolution
of this issue is important, for the date on which the accident
happens “suddenly and violently” is relevant to many issues
in a workers’ compensation case, including when the statute
of limitations begins to run, at what rate the employee’s aver-
age weekly wage should be calculated, and which employer
or insurer is liable to the employee.14 The latter is particularly
relevant to the instant case.
[7] Years ago, we recognized that while the language of our
statute requiring an accident to happen “‘suddenly and vio-
lently’” was “quite precise and clear,” “the realities of life do
not always provide us with such clear-cut recorded events from
which we may decide whether an accident . . . has occurred.”15
We further recognized that this is particularly so when the
injury is caused by repetitive trauma. We explained:
[T]he nature of the human body being such that it is, not
all injuries to the body are caused instantaneously and
with force, but may indeed be nevertheless suddenly and
violently, even though they have been building up for
a considerable period of time and do not manifest until
they cause the employee to be unable to continue his or
her employment.16
We have thus reasoned that the phrase “‘suddenly and vio-
lently’” as used in § 48-151(2) does not mean “‘instanta-
neously and with force,’” but, rather, requires only that the
injury manifest at an identifiable point in time.17
[8] Since at least 1999, we have reasoned that the iden-
tifiable point in time at which a repetitive trauma injury
manifests is when there is a sudden result, characterized by
14
See 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law § 50.05 (2014).
15
Sandel v. Packaging Co. of America, 211 Neb. 149, 156, 317 N.W.2d 910,
915 (1982).
16
Id. at 160, 317 N.W.2d at 917.
17
Id. at 158, 317 N.W.2d at 916. See, e.g., Risor, supra note 4.
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POTTER v. McCULLA 749
Cite as 288 Neb. 741
an employee’s discontinuing employment and seeking medi-
cal treatment.18 We later clarified that the identifiable point
in time can also be when there is a sudden cause, such as a
brief exposure to toxic fumes.19 Only the test used to identify
the point in time when a sudden result occurs is at issue in
this case.
Garcia and FirstComp argue that our interpretation of
“suddenly and violently” as requiring an employee to both
seek medical attention and discontinue employment has
“morphed” the “plain, ordinary, and popular meaning of
the phrase ‘suddenly and violently’ and no longer accom-
plishes the purpose and intent of the Nebraska Workers’
Compensation Act.”20 We do not understand this argument to
be that we should read “suddenly and violently” as meaning
only “instantaneously and with force.”21 Instead, Garcia and
FirstComp are simply asking that we apply a different test
when undertaking the difficult task of determining the iden-
tifiable point in time that a repetitive trauma injury suddenly
results or manifests. They argue that the part of our current
test which requires discontinuation of employment “causes
harm”22 to part-time workers or night-shift workers who,
realizing they have suffered a work-related injury and need
medical treatment, seek that treatment during nonwork hours.
They also argue it is “unjust”23 to subsequent employers to
fix the date of injury based on the date employment is dis-
continued when the symptoms of the injury surfaced and the
18
See Jordan v. Morrill County, 258 Neb. 380, 603 N.W.2d 411 (1999);
Fay v. Dowding, Dowding, 261 Neb. 216, 623 N.W.2d 287 (2001);
Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001); Dawes
v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167
(2003), disapproved on other grounds, Kimminau v. Uribe Refuse Serv.,
270 Neb. 682, 707 N.W.2d 229 (2005); Swoboda, supra note 12; and
Risor, supra note 4.
19
Swoboda, supra note 12.
20
Brief for appellants at 24-25.
21
See Sandel, supra note 15, 211 Neb. at 156, 317 N.W.2d at 915.
22
Brief for appellants at 27.
23
Id. at 22.
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employee sought medical treatment during his or her tenure
with a previous employer.
We acknowledge that other jurisdictions apply different
tests when determining the identifiable point in time at which
a repetitive trauma injury suddenly results or manifests.
Garcia and FirstComp urge us to adopt the test applied by
Iowa. That jurisdiction finds 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.24 In Meyer v. IBP,
Inc.,25 the court explained that the test was employed in an
effort to determine “‘the date on which disability manifests
itself.’” It explained that in its view, “‘“[m]anifestation”’”
was “‘best characterized’” based on the articulated test.26 It
noted, however, that factors to be considered in determining
when a repetitive trauma injury manifests itself under that test
included “‘absence from work because of inability to per-
form’” and “‘the point at which medical care is received.’”27
Because these are precisely the factors considered by this
court, the test is not entirely different from ours. And we note
that Iowa’s workers’ compensation statute does not include
the “suddenly and violently” language from which our test
was derived.28
Oklahoma applies a test very similar to Iowa’s and finds
that a repetitive trauma injury manifests when the worker
becomes aware of the injury and its job relatedness.29 So
does Kentucky, which finds a gradual injury becomes mani-
fest when the worker has knowledge of the harmful change
24
Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001).
25
Meyer v. IBP, Inc., 710 N.W.2d 213, 221 (Iowa 2006), quoting 3 Larson &
Larson, supra note 14.
26
Id., quoting Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa
1992).
27
Id.
28
See Iowa Code Ann. § 85.3(1) (West 2009).
29
Centrilift v. Evans, 915 P.2d 391 (Okla. App. 1995).
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POTTER v. McCULLA 751
Cite as 288 Neb. 741
and knows it is caused by the work.30 Pennsylvania holds
that the date of diagnosis of an injury caused by repetitive
trauma is the date of the accident.31 All of these jurisdic-
tions are attempting to answer the same difficult question—at
what point does an injury caused by repetitive trauma mani-
fest itself?
The test we have adopted, that a repetitive trauma injury
manifests on the date that the employee has both sought
medical treatment and missed work due to the injury,32 has
certain advantages. First, it is based on objective criteria—the
date the employee seeks medical treatment and the date the
employee has to discontinue or miss work. Under this test, we
need not engage in a subjective analysis of when an injury or
its relation to the employment would be “plainly apparent”
to a “reasonable person.”33 But perhaps more important, the
requirement in our test that the employee miss or discontinue
employment is reasonably related to a determination of the
time when the injury manifests itself in disability. Both before
and after an employee’s maximum medical improvement, an
employee’s disability is determined by the employee’s dimi-
nution of employability or impairment of earning power or
earning capacity.34 Thus, even if an employee is experiencing
pain associated with his or her employment and seeks medi-
cal treatment for that pain, no disability is manifested until
there is a diminution of employability—and that reasonably
can only occur when an employee’s injury interferes with
his or her ability to perform the requirements of the job. The
point at which an employee has to miss or discontinue work
because of the injury is thus a reasonable standard of disabil-
ity manifestation.
30
Brummitt v. Southeastern Ky. Rehabilitation, 156 S.W.3d 276 (Ky. 2005).
31
Piad Corp. v. W.C.A.B. (Moskyok), 761 A.2d 640 (Pa. Commw. 2000).
32
See cases cited supra note 18.
33
Compare, Meyer, supra note 25; Herrera, supra note 24.
34
Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013).
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In addition, the bright-line rule we apply has the dual
advantage of simplicity and consistency. It is fair to employ-
ees, because a date of injury is conclusively established once
symptoms become so severe that work is missed. In this
respect, we note that at least two jurisdictions have questioned
the wisdom and fairness of the Iowa test, or tests similar to it,
from the perspective of the injured employee. As noted, Iowa
holds that the date of injury is the date when both the injury
and its relation to the employment are “plainly apparent” to
a “reasonable person.”35 But this can be unfair to employ-
ees because
[b]y their very nature, repetitive-trauma injuries may
take years to develop to a point of severity precluding
the employee from performing in the workplace. An
employee who discovers the onset of symptoms and
their relationship to the employment, but continues to
work faithfully for a number of years without signifi-
cant medical complications or lost working time, may
well be prejudiced if the actual breakdown of the physi-
cal structure occurs beyond the period of limitation set
by statute.36
These same jurisdictions also reason that fixing the date of
injury for a repetitive trauma injury prior to the date the
employee has to miss work is illogical, as “it cannot be pre-
sumed the initial condition will necessarily degenerate to a
point at which it impairs the employee’s ability to perform the
duties to which he is assigned.”37
We acknowledge that the rule we apply may seem unfair
to some employers (or, more aptly, their insurance carri-
ers) under circumstances similar to the instant case, where
symptoms and medical treatment occur while work is being
performed for one employer but no work is missed until
work is being performed for another employer. But due to
35
See, Meyer, supra note 25; Herrera, supra note 24.
36
Oscar Mayer & Co. v. Industrial Comm., 176 Ill. App. 3d 607, 611, 531
N.E.2d 174, 176, 126 Ill. Dec. 41, 43 (1988). See Treaster v. Dillon
Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999).
37
Id.
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the progressive nature of repetitive trauma injuries, the test
employs a “necessary legal artifice . . . in order for repetitive
trauma cases to be manageable within the statutory frame-
work of an accident.”38
[9] In 1991, four members of this court noted that modifi-
cation of the Nebraska Workers’ Compensation Act to better
address the issues involved in repetitive trauma cases is a
legislative function, not a judicial one.39 And as we noted in a
2003 case in which we declined to overrule the same line of
precedent challenged here:
When judicial interpretation of a statute has not evoked a
legislative amendment, it is presumed that the Legislature
has acquiesced in the court’s interpretation. . . . The
Legislature has not only acquiesced in our interpreta-
tion of Neb. Rev. Stat. § 48-151 . . . regarding repeti-
tive trauma injuries, but has declined the express invita-
tion of a majority of this court to consider and amend
our interpretation.40
Eleven years later, that statement is still true.
[10] In sum, the test we apply to determine when a repeti-
tive trauma injury occurs “suddenly and violently” is neither
inconsistent with the statutory language nor is it unfair or
unjust. While the test may not be perfect, we are not per-
suaded that the more subjective approach taken by Iowa and
other jurisdictions is better. The doctrine of stare decisis is
grounded on public policy and, as such, is entitled to great
weight and must be adhered to unless the reasons therefor have
ceased to exist, are clearly erroneous, or are manifestly wrong
and mischievous or unless more harm than good will result
from doing so.41 We therefore decline Garcia and FirstComp’s
invitation to overrule our precedent. The compensation court
38
Tomlin, supra note 9, 14 Neb. Ct. App. at 301, 706 N.W.2d at 608.
39
Vencil v. Valmont Indus., 239 Neb. 31, 473 N.W.2d 409 (1991) (Caporale,
J., concurring; Boslaugh, White, and Fahrnbruch, JJ., join), disapproved
on other grounds, Jordan, supra note 18.
40
Dawes, supra note 18, 266 Neb. at 539-40, 667 N.W.2d at 182 (citation
omitted).
41
Dawes, supra note 18.
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did not err in determining that the date of injury was February
11, 2009, as that was the date on which Potter first missed
work due to her pain, even though she had previously sought
medical treatment.
CONCLUSION
For the foregoing reasons, the decision of the compensa-
tion court is affirmed.
Affirmed.
Heavican, C.J., not participating.