Employer liable for medical care related to latent, progressive injury
Case name: Wissing v. Walgreen Co., No. A-12-361 (Neb. Ct. App. 11/20/12).
Ruling: The Nebraska Court of Appeals held that a worker's claim for a cervical spine injury was a latent and progressive injury that tolled the statute of limitations.
What it means: In Nebraska, the two-year statute of limitations is tolled when a worker suffers a latent and progressive injury.
Summary: A worker was involved in a work-related accident when he fell from a ladder and injured his shoulder. He was given a 15 percent permanent impairment rating. The worker's doctor told him that he would continue to have shoulder pain. More than three years after the incident, the worker's pain increased substantially, and he experienced numbness and tingling. He was diagnosed with post-traumatic osteoarthritis. An epidural steroid injection alleviated his pain. The worker sought benefits for his cervical spine injury. The parties agreed that the claim was barred by the two-year statute of limitations unless an exception applied. The Nebraska Court of Appeals determined that the latent and progressive exception applied to toll the statute of limitations.
The court explained that when an injury is latent and progressive the statute of limitations is tolled until it becomes reasonably apparent to the worker or should have become apparent to the worker that a compensable disability is present. Here, the worker did not experience symptoms inconsistent with his original diagnosis until more than three years after the incident. When his symptoms changed, he promptly sought medical treatment and was alerted of an additional compensable injury. It was beyond the worker's control that his doctor did not discover the spine condition immediately after the accident, and therefore, it was not reasonably discoverable by the worker.
The court concluded that the employer was liable for future medical care related to the spinal injury.
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February 25, 2013
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