Decisions of the Nebraska Court of Appeals
20 21 NEBRASKA APPELLATE REPORTS
Patricia Hadfield, appellant, v. Nebraska
Medical Center and Safety National
Casualty Corporation, appellees.
___ N.W.2d ___
Filed July 9, 2013. No. A-12-556.
1. Workers’ Compensation: Appeal and Error. An appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when (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. ____: ____. On appellate review, the findings of fact made by the trial judge of
the Workers’ Compensation Court have the effect of a jury verdict and will not be
disturbed unless clearly wrong.
3. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
4. Workers’ Compensation. A worker may recover under Nebraska’s work-
ers’ compensation laws only for injuries caused by an accident or occupa-
tional disease.
5. Workers’ Compensation: Words and Phrases. The definition of “accident,”
as used in Neb. Rev. Stat. § 48-101 (Reissue 2010), includes injuries resulting
from activities which create a series of repeated traumas ultimately produc-
ing disability.
6. Workers’ Compensation. A workers’ compensation claimant does not have to
make specific election between cumulative trauma and specific injury.
7. Final Orders. Silence in an order on a request for relief not spoken to must be
construed as a denial of such request.
8. Workers’ Compensation: Appeal and Error. A trial judge’s failure to discuss a
specific request for relief may nonetheless constitute error requiring reversal or
remand of the cause when the order does not comply with Workers’ Comp. Ct. R.
of Proc. 11 (2011) by providing a basis for a meaningful appellate review.
9. ____: ____. Workers’ Comp. Ct. R. of Proc. 11 (2011) is designed to ensure that
compensation court orders are sufficiently clear in addressing requests for relief
in order that an appellate court can review the evidence relied upon by the trial
judge in support of his or her findings.
10. Workers’ Compensation. When a workers’ compensation claimant pleads both
specific injury and cumulative trauma as theories of recovery, the compensation
court’s order must address both theories in order to comply with Workers’ Comp.
Ct. R. of Proc. 11 (2011).
11. Appeal and Error. Errors argued but not assigned will not be considered
on appeal.
Appeal from the Workers’ Compensation Court: James R.
Coe, Judge. Reversed and remanded with directions.
Decisions of the Nebraska Court of Appeals
HADFIELD v. NEBRASKA MED. CTR. 21
Cite as 21 Neb. App. 20
Laura L. Pattermann and Sheldon M. Gallner, of Gallner &
Pattermann, P.C., for appellant.
William J. Birkel and Noah M. Priluck, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., for appellees.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Moore, Judge.
Patricia Hadfield appeals from the Workers’ Compensation
Court’s order of dismissal, contending that the order of dis-
missal did not appropriately address her injuries as arising
from cumulative, repetitive trauma. Because we find that the
compensation court’s order did not provide a meaningful basis
for review of Hadfield’s claim of cumulative, repetitive trauma,
we reverse, and remand with directions.
FACTUAL BACKGROUND
Hadfield was employed at the University of Nebraska
Medical Center (UNMC) as a sonographer from March 6,
2000, until her termination of employment on June 2, 2011.
UNMC terminated Hadfield from her position when it could no
longer accommodate her work restrictions that resulted from a
left elbow injury. When UNMC disputed this injury resulted
from her work as a sonographer, Hadfield filed a claim in the
Nebraska Workers’ Compensation Court.
Hadfield asserted her elbow injury occurred during the
course of her employment as a sonographer at UNMC. In this
role, Hadfield’s general responsibility was to scan patients in
order to provide images for a radiologist to interpret. In order
to scan patients, Hadfield would often have to push the ultra-
sound machine cart to various locations in the hospital, includ-
ing the intensive care units and the emergency room. Hadfield
testified that these ultrasound machines weighed approximately
500 pounds. In addition to pushing the ultrasound cart through-
out the hospital, Hadfield was also required to transport and
position patients for scans, apply gel to patients, and run
a computer.
Hadfield testified that on January 6, 2011, she experi-
enced a sharp pain in her left elbow when she squeezed a
Decisions of the Nebraska Court of Appeals
22 21 NEBRASKA APPELLATE REPORTS
gel bottle while preparing to scan a patient. When the pain
did not subside within a few days, Hadfield reported this
injury to her family physician, Dr. Douglas Wheatley, on
January 10. Wheatley diagnosed this injury as left lateral
epicondylitis and placed Hadfield on a 10-pound pushing,
grasping, and squeezing restriction. In addition to seeing
Wheatley, Hadfield also notified her lead ultrasound techni-
cian that she had suffered this injury and had to follow the
work restrictions.
After seeing Wheatley, Hadfield visited the UNMC
employee health clinic on January 18, 2011. According to the
clinic’s records, Hadfield reported that “she simply went to
bed one night entirely pain free and woke up with an achy,
sore left elbow and every day has gotten worse.” The clinic
completed its own examination of Hadfield and concurred
with Wheatley’s initial diagnosis. However, the clinic deter-
mined Hadfield’s pushing, grasping, and pulling restriction
should be increased to 125 pounds. Hadfield testified she was
able to complete her job duties with the 125-pound restric-
tion as long as she received help transporting and position-
ing patients. Between January 10 and her termination on
June 2, Hadfield was able to complete her job duties with
the necessary accommodations. UNMC terminated Hadfield’s
employment when it was no longer able to accommodate her
work restrictions.
Hadfield received a variety of medical treatments to care
for her condition. This care included occupational and physi-
cal therapy, pain management, and two injections into her
left elbow in attempts to alleviate the pain. None of these
treatments was effective. Therefore, on September 7, 2011,
Hadfield underwent a “lateral epicondyle release” performed
by Dr. Edward Fehringer. This procedure was ultimately inef-
fective, because Hadfield continued to experience persist
ent pain.
As a result of continued pain and unemployment, Hadfield
also began to suffer from depression. For treatment of her
depression, she sought the services of both a psycholo-
gist and a psychiatrist. Eventually, Hadfield was prescribed
antidepressants.
Decisions of the Nebraska Court of Appeals
HADFIELD v. NEBRASKA MED. CTR. 23
Cite as 21 Neb. App. 20
After UNMC and its workers’ compensation insurance car-
rier, Safety National Casualty Corporation (SNCC), refused
to pay continuous benefits for medical treatment or disability,
Hadfield filed a petition in the Workers’ Compensation Court
on September 14, 2011. Hadfield alleged that she sustained
personal injuries “on or about January 16 [sic], 2011,” in an
accident arising out of and in the course of her employment
with UNMC. We note that although Hadfield’s complaint
stated that she suffered personal injuries on January 16, all
other evidence clearly shows the alleged date of injury to
have been January 6. Therefore, for purposes of this appeal,
we will show the alleged date of injury to have been January
6. Paragraph 4 of her petition stated, “[T]he accident and
resulting personal injuries occurred in the following manner:
[Hadfield] repetitively performs approximately seven to eight
sonograms per day causing injury to her left arm.” UNMC
and SNCC’s answer to this complaint admitted Hadfield was
employed by UNMC in January 2011, but denied each and
every other allegation. UNMC and SNCC also affirmatively
alleged that the injuries in Hadfield’s petition were not causally
connected to an accident within the course and scope of her
employment with UNMC, but were the result of “an indepen-
dent, intervening, non-compensable cause.”
The Workers’ Compensation Court held a hearing on April
24, 2012. At this hearing, Hadfield testified regarding her
injuries and submitted medical evidence. Hadfield testified
that she performed seven to eight sonograms per day, which
involved having to constantly apply gel to patients, which
in turn required squeezing the gel bottle. She also testified
about her daily job duties of pushing patients on carts and in
wheelchairs, pushing the sonogram machine to different areas,
and operating the computer. Among her medical evidence,
Hadfield submitted reports from both Wheatley and Fehringer,
which reports concluded that her injury was secondary to her
work as a sonographer. Specifically, Wheatley’s January 10,
2011, notes regarding his visit with Hadfield state that she
“complain[ed] of left elbow pain since January 1, 2011. This
affects the lateral aspect of her elbow. This problem developed
secondary to [her] repetitive use while working.” Fehringer’s
Decisions of the Nebraska Court of Appeals
24 21 NEBRASKA APPELLATE REPORTS
reports stated that Hadfield “has had problems with her left
elbow related to repetitive utilization of her left upper extrem-
ity as part of her occupation.” Fehringer’s February 3, 2012,
report concluded that Hadfield’s injury caused a 7-percent per-
manent impairment.
Among its evidence, UNMC submitted two independent
reports conducted by Dr. Dean Wampler. These reports con-
cluded Hadfield’s injury could not have been caused by her
work as a sonographer at UNMC. In addition to Wampler’s
reports, UNMC also submitted the medical records from
Hadfield’s visit to the employee health clinic on January 18,
2011. Like Wampler’s reports, these records also concluded
Hadfield’s injury was likely not work related.
On June 6, 2012, the Workers’ Compensation Court issued
an order of dismissal. In this order, the court admitted this
case presented a close question, but placed more weight on
Wampler’s report and the medical records from the employee
health clinic. The court concluded, “[Hadfield] has failed to
prove by a preponderance of the evidence that on January 6,
2011, [she] sustained an injury that occurred in the course and
scope of her employment and for this reason [her] petition
should be dismissed.”
Hadfield appeals from this order of dismissal.
ASSIGNMENT OF ERROR
Hadfield’s sole assignment of error is that the Workers’
Compensation Court erred when it failed to address the issue of
cumulative, repetitive trauma as pled in her petition.
STANDARD OF REVIEW
[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp.
2012), an appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (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 war-
rant 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. Manchester v. Drivers Mgmt., 278 Neb. 776,
Decisions of the Nebraska Court of Appeals
HADFIELD v. NEBRASKA MED. CTR. 25
Cite as 21 Neb. App. 20
775 N.W.2d 179 (2009); Wissing v. Walgreen Company, 20
Neb. App. 332, 823 N.W.2d 710 (2012). On appellate review,
the findings of fact made by the trial judge of the Workers’
Compensation Court have the effect of a jury verdict and will
not be disturbed unless clearly wrong. Clark v. Alegent Health
Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).
[3] With respect to questions of law in workers’ compen-
sation cases, an appellate court is obligated to make its own
determination. Lovelace v. City of Lincoln, 283 Neb. 12, 809
N.W.2d 505 (2012).
ANALYSIS
Did Order of Dismissal Address
Cumulative, Repetitive Trauma?
Hadfield claims that the compensation court failed to con-
sider whether her injuries were the result of cumulative, repeti-
tive trauma. Therefore, she claims the order of dismissal does
not comport with Workers’ Comp. Ct. R. of Proc. 11(A) (2011).
At the time of this case, rule 11(A) provided that “[d]ecisions
of the court shall provide the basis for a meaningful appellate
review. The judge shall specify the evidence upon which the
judge relies.”
[4-6] A worker may recover under Nebraska’s workers’
compensation laws only for injuries caused by an accident or
occupational disease. See Neb. Rev. Stat. § 48-101 (Reissue
2010). Nebraska courts have made it clear that the definition
of “accident,” as used in § 48-101, includes injuries resulting
from activities which create a series of repeated traumas ulti-
mately producing disability. See, Risor v. Nebraska Boiler, 277
Neb. 679, 765 N.W.2d 170 (2009); Veatch v. American Tool,
267 Neb. 711, 676 N.W.2d 730 (2004); Sandel v. Packaging
Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982).
Additionally, this court has found that a claimant does not
have to make specific election between cumulative trauma and
specific injury. Armstrong v. Watkins Concrete Block, 12 Neb.
App. 729, 685 N.W.2d 495 (2004). Therefore, under Nebraska
law, Hadfield is permitted to allege injuries and to attempt
to recover for injuries under a cumulative, repetitive trauma
theory in addition to the specific injury theory.
Decisions of the Nebraska Court of Appeals
26 21 NEBRASKA APPELLATE REPORTS
As explained in the factual background section above,
Hadfield asserted that she suffered a work-related injury on
January 6, 2011, and she also alleged in her petition that
she suffered her injury after repetitively performing seven
to eight sonograms per day. During the direct examination
of Hadfield at the hearing before the workers’ compensa-
tion court, there was a brief dialog between the court and
Hadfield’s attorney seemingly aimed at determining whether
Hadfield was claiming an acute, specific injury or a cumula-
tive, repetitive injury:
[Hadfield’s counsel:] And do you have any idea what
repetitive type of motion —
THE COURT: . . . [Y]ou told me in opening statement
there was —
[Hadfield’s counsel:] Well, this is actually a
combination.
THE COURT: This was an acute event that occurred
on January 6th.
[Hadfield’s counsel:] All right. . . . Hadfield, prior to
January 6th, 2012, had you ever missed work because of
difficulties with your left upper extremity?
Following this exchange, Hadfield did present evidence
regarding the repetitive nature of her work in connection with
her claim of cumulative, repetitive trauma, as set forth above.
In its order of dismissal, the court summarized Hadfield’s
petition as alleging that “on or about January 16 [sic], 2011,”
Hadfield suffered injury to her left elbow when she squeezed
a bottle of gel. The court did not refer to Hadfield’s allega-
tion that she suffered this injury after repetitively performing
several sonograms per day. The order goes on to note that the
employee health clinic’s “medical record has no mention of
the acute injury [Hadfield] stated she sustained on January 6,
2011, while squeezing a bottle of jell [sic] with her left hand.”
(Emphasis supplied.) Additionally, the court stated:
Although a close question, the Court is more per-
suaded by the Employee Health record of January 18,
2011, . . . and the medical opinion of Dr. Wampler
. . . rather than the other medical records and opinions
in this case concerning causation with the finding that
Decisions of the Nebraska Court of Appeals
HADFIELD v. NEBRASKA MED. CTR. 27
Cite as 21 Neb. App. 20
[Hadfield] has failed to prove by a preponderance of the
evidence that on January 6, 2011, [Hadfield] sustained
an injury that occurred in the course and scope of her
employment . . . .
Given the court’s specific reference in its order of dismissal
to whether Hadfield sustained an “acute” injury on a particular
day in January 2011, the failure to specifically discuss whether
Hadfield proved a cumulative, repetitive injury, and the court’s
questions of counsel during trial regarding this being an acute
injury case, it is not clear from the order whether the com-
pensation court properly considered the cumulative, repetitive
trauma as pled in Hadfield’s petition.
[7,8] We recognize that silence in an order on a request
for relief not spoken to must be construed as a denial of such
request. See 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. 628, 707
N.W.2d 229 (2005). However, the Nebraska Supreme Court
noted in Dawes that a trial judge’s failure to discuss a specific
request for relief may nonetheless constitute error requiring
reversal or remand of the cause when the order does not com-
ply with rule 11 by providing a basis for a meaningful appel-
late review.
[9] Rule 11 is designed to ensure that compensation court
orders are sufficiently clear in addressing requests for relief
in order that an appellate court can review the evidence
relied upon by the trial judge in support of his or her find-
ings. In Owen v. American Hydraulics, 254 Neb. 685, 696,
578 N.W.2d 57, 64 (1998), the Nebraska Supreme Court
concluded that contradictory statements in the compensation
court’s order precluded meaningful appellate review because
the order did not “clearly and unambiguously” state whether
the employee satisfied the burden of proof or discuss the evi-
dence relied upon in making its finding. In Hale v. Standard
Meat Co., 251 Neb. 37, 554 N.W.2d 424 (1996), the court
found that a general conclusion that the employee’s evidence
did not meet the burden of proving that the alleged injuries
were caused by the employment lacked sufficient clarity for
meaningful appellate review under rule 11.
Decisions of the Nebraska Court of Appeals
28 21 NEBRASKA APPELLATE REPORTS
[10] In Armstrong v. Watkins Concrete Block, 12 Neb. App.
729, 685 N.W.2d 495 (2004), the employee alleged both a
specific injury date and cumulative trauma in his petition. The
trial court found that pleading a specific injury date precluded
consideration of cumulative trauma. As a result, there was no
decision by the trial court on whether the employee proved
that there had been a cumulative trauma. On appeal, this court
concluded that the trial court erred in failing to consider the
theory of cumulative trauma, and because there was no rea-
soned decision on the question of whether the claimant’s injury
was the result of cumulative trauma, we were unable to provide
a meaningful appellate review on the issue. When a workers’
compensation claimant pleads both specific injury and cumula-
tive trauma as theories of recovery, the compensation court’s
order must address both theories in order to comply with rule
11. See Armstrong, supra.
In the present case, we cannot conclusively determine
whether the compensation court considered cumulative trauma
in its decision, despite Hadfield’s having pled this theory for
recovery and having attempted to adduce evidence at the hear-
ing to support this theory. The trial court’s order finds only
that Hadfield failed to prove that she sustained an injury on
January 6, 2011. While we could infer from the order’s silence
that the trial judge also concluded that Hadfield’s injury was
not the result of cumulative trauma, the order does not provide
sufficient factual findings and a rationale on this issue to allow
for a meaningful appellate review of this issue. Therefore,
we reverse the compensation court’s decision and remand the
cause with directions to reconsider this matter on the record
made to determine whether Hadfield has proved a cumulative
trauma injury. No opinion is offered or suggested on what the
outcome of that decision should be.
Sufficiency of Evidence to Prove
Cumulative, Repetitive Trauma.
Hadfield also argues that the compensation court erred in
concluding the evidence in the record did not support recov-
ery under a cumulative, repetitive trauma theory. She argues
that while this issue was not specifically addressed by the
Decisions of the Nebraska Court of Appeals
HADFIELD v. NEBRASKA MED. CTR. 29
Cite as 21 Neb. App. 20
compensation court, the evidence in the record supports a
finding that she suffered a cumulative, repetitive trauma injury
in January 2011.
[11] Although we need not address this argument in order to
resolve this case, we do note that this issue was not assigned
as error in Hadfield’s brief. Errors argued but not assigned will
not be considered on appeal. Sheperd v. Chambers, 281 Neb.
57, 794 N.W.2d 678 (2011).
CONCLUSION
We conclude that the compensation court’s order of dis-
missal did not comply with rule 11(A), because it failed to
clearly address whether it had considered Hadfield’s injuries
under a cumulative, repetitive trauma theory. Therefore, we
reverse the judgment and remand the cause to the compensa-
tion court with directions to consider this matter under a cumu-
lative, repetitive trauma theory.
R eversed and remanded with directions.