BARBARA L. POTTER, APPELLEE,
PATRICK S. MCCULLA AND HARTFORD UNDERWRITERS INSURANCE COMPANY, APPELLEES, AND TRACY N. GARCIA, D.D.S., L.L.C., AND FIRSTCOMP INSURANCE COMPANY, APPELLANTS
[Copyrighted Material Omitted]
Appeal from the Workers' Compensation Court: J. MICHAEL FITZGERALD, Judge.
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. HEAVICAN, C.J., not participating.
[288 Neb. 742] Stephan, J.
Barbara L. Potter suffered a repetitive trauma injury as a result of her employment as a dental hygienist over a period [288 Neb. 743] of more than 30 years. We conclude the Nebraska Workers' Compensation Court properly determined that her injury manifested 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.
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 positioned 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.'"
[288 Neb. 744] After February 11, 2009, Potter continued to receive medical 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 condition. 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 ...