Workers' Compensation: Notice: Appeal and
Error. Where the underlying facts are undisputed, or
if disputed, the factual finding of the trial court was not
clearly erroneous, the question of whether Neb. Rev. Stat.
§ 48-133 (Reissue 2010) bars the claim is a question of
law upon which the appellate court must make a determination
independent of that of the trial court.
Workers' Compensation: Notice. Neb. Rev.
Stat. § 48-133 (Reissue 2010) contemplates a situation
where an employer has notice or knowledge sufficient to lead
a reasonable person to conclude that an employee's injury
is potentially compensable and that, therefore, the employer
should investigate the matter further.
The purposes of the notice requirement of Neb. Rev. Stat.
§ 48-133 (Reissue 2010) are to enable the employer to
provide immediate medical diagnosis and treatment with a view
to minimizing the seriousness of the injury and to facilitate
the earliest possible investigation of the facts surrounding
Words and Phrases. "Practicable"
generally means capable of being done, effected, or put into
practice with the available means, i.e., feasible.
Workers' Compensation: Notice: Words and
Phrases. The meaning of "as soon as
practicable" under Neb. Rev. Stat. § 48-133
(Reissue 2010) depends upon the particular facts and
circumstances of the case.
from the Workers' Compensation Court: J. Michael
Fitzgerald, Judge. Affirmed.
Christopher R. Miller and Mark P. Grell, of Miller Grell Law
Group, P.C., L.L.O., for appellant.
Neb.App. 905] Jason A. Kidd, of Engles, Ketcham, Olson &
Keith, P.C., for appellee.
Chief Judge, and Pirtle and Welch, Judges.
workers' compensation case, Michael Bauer filed a claim
for benefits against Genesis Healthcare Group (Genesis),
concerning a shoulder injury he experienced while working as
a physical therapy assistant. A trial judge of the
Workers' Compensation Court determined that Bauer failed
to give the required notice of injury to Genesis "as
soon as practicable" after the occurrence and dismissed
Bauer's petition. Bauer appeals the dismissal of his
petition, arguing that the trial court erred in finding that
he failed to give Genesis notice of his injury as soon as was
practicable. Having determined, as a matter of law, that the
trial court correctly determined that Bauer failed to give
Genesis notice "as soon as practicable" as required
by Neb. Rev. Stat. § 48-133 (Reissue 2010), we affirm
the trial court's dismissal of Bauer's petition.
September 15, 2017, Bauer was employed by Genesis as a
director of rehabilitation and as a physical therapy
assistant. On that date, while assisting a patient in a
wheelchair, Bauer felt a "sharp pain" and a
"sudden pop" in his right shoulder together with a
"burning kind of numbness" that went down his right
arm. Bauer testified that he told his coworker that he
'"tore a muscle or something'" and was
advised to file a report. Bauer did not immediately file a
report. He testified that he was concerned about his job
status and did not want to "rock the boat" by
reporting the injury. Instead, he testified that he believed
he could handle it on his own. Later that day, Bauer went to
the gym to try to work out his arm. The following weekend,
Bauer canceled a planned trip to a Nebraska football game,
placed ice on the impacted area, and utilized a [27 Neb.App.
906] set of pulleys at his home to work on his range of
motion. Due to his ability to set his own work schedule,
Bauer placed himself on light duty for the week following the
September 25, 2017, Bauer was informed by his employer that
he was being placed on administrative leave and instructed
that his position might be eliminated but that he would be
considered for other director of rehabilitation positions in
the state if one should become available. Bauer testified
that, at that time, his arm was still sore, but he continued
to believe he had a minor sprain or strain. He continued to
try and rehabilitate his injury by pursuing aquatic therapy
on his own.
testified that on October 1, 2017, while working at his
family farm and attaching a blade to a tractor, he felt pain
and a "pop" in the same shoulder. He testified that
he was being "hardheaded" about seeing a doctor,
but at the urging of his wife, he first sought treatment for
his shoulder on October 6 at a clinic in McCook, Nebraska. At
the clinic, he was examined by a physician assistant, who
stated in her medical note: "The onset of the shoulder
pain has been sudden following an incident not at work and
has been occurring in a persistent pattern for 5 days. The
course has been without change. The shoulder pain is severe.
The shoulder pain is characterized as a sharp stabbing."
The physician assistant suggested that Bauer have a CT scan
of the shoulder and that Bauer contact an orthopedic surgeon.
made an appointment to see Dr. Jeffrey Tiedeman, an
orthopedic surgeon in Omaha, Nebraska. In his office notes
governing the visit on October 20, 2017, Dr. Tiedeman
indicated Bauer "was injured when he was putting a blade
on the back of his tractor on 10-1-17. He felt a pop in his
shoulder and a burning sensation that radiated from the
shoulder all [the] way down to his hand." The note of
the visit also indicated, "[Bauer] wasn't
experiencing any significant problems with his shoulder
before this episode." At trial, Bauer stated that he did
not initially tell Dr. Tiedeman about any work [27 Neb.App.
907] injury. Bauer stated that he purposefully misled his
doctors to avoid his employer's discovering his work
the visit, Dr. Tiedeman opined that Bauer was injured when he
was putting a blade on the back of his tractor. His
impression was that Bauer had suffered a "[r]otator cuff
tear right shoulder with possible associated biceps
tendi-nopathy." He then recommended a CT scan with an
arthrogram component in order to obtain "better
definition" governing the status of the rotator cuff.
testified that on Friday, October 20, 2017, following his
appointment with Dr. Tiedeman, he called Genesis to report
the injury but was unable to reach the appropriate person. He
then reported the injury on Monday, October 23, and filed a
written report the following day.
scan was performed on October 30, 2017. The radiologist's
impression was that there was no evidence of a rotator cuff
tear or retraction, there was a "[m]edial sublux-ation
of the biceps tendon with superficial partial tear and
suspected overlying subscapularis tendon tear," and
there was an "anterior capsular laxity with evidence of
multidirectional instability possibly with small
intra-articular loose body and partial tear/laxity of the
middle glenohumeral ligament." After Dr. Tiedeman
reviewed the CT scan on November 3, he opined that there
"did not appear to be any full-thickness tear of the
rotator cuff," but he noted "some subluxation of
the biceps tendon and likely a partial-thickness tear of the
upper border of the subscapularis."
Bauer returned to Dr. Tiedeman on November 20, 2017, for a
followup evaluation, Dr. Tiedeman diagnosed a "[b]iceps
tendon subluxation with rotator cuff tendinopathy right
shoulder." Dr. Tiedeman stated that they could manage
the symptoms conservatively or pursue a surgical approach. At
this visit, Bauer advised Dr. Tiedeman, for the first time,
that Bauer believed he may have actually injured his shoulder
initially in mid-September when he was "lifting a
patient at work."
Neb.App. 908] On April 4, 2018, Dr. Tiedeman opined that
"more likely than not," the work accident caused or