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Dental hygienist due comp benefits for repetitive trauma from short-term employer

Dental hygienist due comp benefits for repetitive trauma from short-term employer

A Nebraska dentist must pay workers compensation benefits to a dental hygienist who suffered a repetitive trauma injury that was likely caused by her 30-year career, even though she worked for the dentist for only a brief period, the Nebraska Supreme Court has ruled.

Barbara L. Potter began her career as a dental hygienist in 1981, court records show. In 2007 or 2008, she began experiencing pain in her neck from spending most of her workdays with her head tilted and arms raised.

In October 2008, Ms. Potter sought medical treatment for her neck pain and was prescribed oral steroids and physical therapy, records show. She told her then-employer, dentist Patrick McCulla, about her symptoms, and his workers comp insurer, Hartford Underwriters Insurance Co., paid for Ms. Potter’s medical expenses.

Ms. Potter received treatment for her neck pain 12 times between October 2008 and January 2009, according to court filings. During that time, Mr. McCulla had sold his dental practice to Tracy Garcia, who continued to employ Ms. Potter under the same duties and work schedule.

In February 2009, Ms. Potter’s pain became “excruciating,” causing her to leave work early one day to seek treatment, records show. In September 2010, Ms. Garcia’s workers comp insurer, FirstComp Insurance Co., assigned a doctor to assess Ms. Potter’s continuing pain.

FirstComp’s doctor determined that Ms. Potter’s pain was caused by a “pre-existing and progressive degenerative cervical disc condition,” rather than her awkward stance at work, records show. After that report, FirstComp refused to pay for Ms. Potter’s further medical care.

Ms. Potter left Ms. Garcia’s practice to work three days a week for another dentist in June 2011, filings show. She continued to suffer pain in her neck, and her treating physician determined in June 2012 that she suffered “degenerative spondylosis in her cervical spine” that was aggravated by her work as a dental hygienist.

The doctor found that it was “impossible to state to any reasonable degree of medical certainty which of (Ms. Potter’s) positions as a dental hygienist caused” her condition, records show. He imposed permanent work restrictions that limited Ms. Potter to working three days a week.

Ms. Potter filed a petition for workers comp benefits in June 2012, records show. The Nebraska Workers’ Compensation Court ruled that Ms. Garcia’s insurer should be liable for paying full medical and compensation benefits to Ms. Potter as of February 2009, since that was the time when Ms. Potter first missed work to be treated for her injury.

Ms. Garcia and FirstComp appealed the compensation court’s decision straight to the Nebraska Supreme Court, records show.

In a unanimous decision Friday, the high court ruled that Ms. Garcia and FirstComp were liable for Ms. Potter’s injury. In its ruling, the court found that Ms. Potter only needed to prove that her injury arose out of and in the course of her employment.

“It is undisputed that she worked as a dental hygienist for Garcia,” the ruling reads. “Thus, Potter presented competent evidence 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 high court ruling said that repetitive trauma injuries are compensable when they cause an employee to miss work and seek medical treatment, and that Ms. Potter’s condition in February 2009 met that standard.

“We acknowledge that the rule we apply may seem unfair to some employers (or, more aptly, their insurance carriers) 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 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 framework of an accident.’”

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