Schlup v. Auburn Needleworks, Inc.

*867Shanahan, J.,

concurring.

Certainly, Dorothy Schlup’s claim is compensable under the Nebraska Workers’ Compensation Act, but the majority’s view of compensability calls for an explanation, especially in view of Vencil v. Valmont Indus., ante p. 31, 473 N.W.2d 409 (1991), decided just a few months ago, when this court rejected compensability of Daniel J. Vencil’s claim based on the cumulative effects of repetitive work-related trauma. In Vencil, this court rejected compensability because there was no “identifiable moment” which produced objective symptoms requiring medical attention and the interruption or discontinuance of employment. Id. at 32, 473 N.W.2d at 411.

Dorothy Schlup based her workers’ compensation claim on a “bilateral carpal tunnel syndrome,” an injury sustained as the result of her “constant repetitive use of her hands in sewing,” which involved Dorothy Schlup’s frequently twisting her wrists during protracted periods in her employment at Auburn Needleworks. Daniel Vencil based his claim on injury caused by a work-related accident or an occupational disease attributable to his frequently twisting his back, bending, and stooping in his employment at Valmont. In Dorothy Schlup’s case, Auburn Needleworks denied that her injury was “the result of or attributable to any accident or occupational disease.”

In a comparison of Dorothy Schlup’s injury with the injury of Daniel Vencil, there are some striking and substantial similarities, with one major and crucial dissimilarity:

DOROTHYSCHLUP DANIEL VENCIL

Age at injury: 50 years 30 years

1979 Began employment: 1982

Duration of

employment: 5 years 10 years

Type of work activity: Twisting wrists in sewing collars to coat jackets; pulling and pushing bundles of denim weighing20to301bs. Twisting body and back, bending, stooping, and lifting and pushing objects weighing upto2001bs.

*868DOROTHY SCHLUP DANIEL VENCIL

First observation of any physical problem: 1987 1986'

Diagnosis of physical condition: Carpal tunnel syndrome Lumbar disk disease

Nature of injury: Tissue or structures in carpal tunnel (canal from hand through wrist to arm) enlarge from swelling due to trauma, irritation, or infection; median nerve, which runs from the palm of the hand through the carpal or wrist tunnel into the arm, is “pinched” or compressed by other enlarged tissue in the tunnel; results in pain, numbness in digits, and arm pain Deterioration of lumbar disk, i'.e., deterioration of fibers around disk, allowing disk to “bulge out”; results in pressure on nerves along the spinal column and pain; medically analogous to carpal tunnel syndrome

Medical history: No prior condition affecting the injury which is the basis for compensation claim No prior condition affecting the injury which is the basis for compensation claim

Medical causation: Repetitive motion; heavy hand movement: pronation (palm down) and supination (palm up) in work-related activities Repetitive motion; heavy lifting, twisting, and bending in work-related activities

Effects of injury: Weakness in wrist; inability to Weakness in back; inability to grasp objects in employment lift objects in employment

Medical treatment: Surgery to alleviate condition Surgery to alleviate condition

Disability: Inability to perform Inability to perform employment duties; employment duties; discontinuance of employment discontinuance of employment

“Identifiable moment” of injury, i.e., a specific traumatic incident: None None

Compensability: Yes No

Thus, Dorothy Schlup experienced carpal tunnel syndrome, “a complex of symptoms resulting from compression of the median nerve in the carpal tunnel, with pain and burning or tingling paresthesias in the fingers and hand, sometimes extending to the elbow.” The Sloane-Dorland Annotated *869Medical-Legal Dictionary 689 (1987).

Neb. Rev. Stat. § 48-151(3) (Reissue 1988) states:

The term occupational disease shall mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and shall exclude all ordinary diseases of life to which the general public is exposed.

In Maxson v. Michael Todd & Co., 238 Neb. 209, 212, 469 N.W.2d 542, 544 (1991), this court recognized the following definition for “disease”: “ ‘[A]n impairment of the normal state of the living animal. .. body or of any of its components that interrupts or modifies the performance of the vital functions, being a response to environmental factors [such as] industrial hazards . . . .’ ” The preceding definition substantially coincides with the standard medical definition of “disease,” namely: “[A]ny deviation from or interruption of the normal structure or function of any part, organ, or system (or combination thereof) of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.” Dorland’s Illustrated Medical Dictionary 385 (26th ed. 1981). Also, from a medical standpoint, an “occupational disease” is “due to factors involved in one’s employment, e.g., various forms of pneumoconiosis or dermatitis.” Id. at 392. Thus, an occupational disease is a condition which causes impairment, deviation, or interruption of the normal structure or function of a worker’s body and which results from hazards or conditions peculiar to a particular occupation or employment. See Vencil v. Valmont Indus., ante p. 31, 473 N.W.2d 409 (1991) (Shanahan, J., dissenting).

Several courts, construing workers’ compensation statutes with language identical or substantially similar to that in § 48-151(3), have concluded that injury and disability attributable to carpal tunnel syndrome which is causally related to. work activities is compensable as an “occupational disease”; for instance, see, Lettering v. Guy, 321 Md. 305, 582 A.2d 996 (1990); Kinney v. Tupperware Co., 117 Idaho 765, 792 P.2d 330 (1990); Wood v. Allison Apparel Marketing, Inc., 11 Va. App. *870352, 398 S.E.2d 110 (1990); Johnson v. Spectra Physics, 11 Or. App. 1, 712 P.2d 125 (1985), aff’d in relevant part 303 Or. 49, 733 P.2d 1367 (1987); Finch v. Stayton Canning Co., 93 Or. App. 168, 761 P.2d 544 (1988); Segar v. Garan, Inc., 388 So. 2d 164 (Miss. 1980); Prater v. Thorngate, Ltd., 761 S.W.2d 226 (Mo. App. 1988) (rehearing or transfer to Supreme Court of Missouri denied December 14, 1988); and Jackson v. Risby Pallet and Lumber Co., 736 S.W.2d 575 (Mo. App. 1987) (rehearing or transfer to Supreme Court of Missouri denied September 8, 1987).

Referring to the comparison between the injuries and disabilities of Dorothy Schlup and Daniel Vencil, one immediately sees that Dorothy Schlup’s work-related injury consisted of pressure on the median nerve in her carpal tunnel and resulted in her disability, while Daniel Vencil’s work-related injury consisted of pressure on the nerves along his vertebral, or spinal, column and resulted in his disability. In both situations, the injury and ultimate disability were attributable to repetitive trauma sustained during the employee’s work-related activities. What is the medical and legal distinction between the work-related injuries of Dorothy Schlup and Daniel Vencil? Is the distinction based on the fact that Dorothy Schlup was employed for 5 years before her disability, whereas Daniel Vencil was employed 10 years before his disability? If so, injury from repetitive trauma during employment less than 5 years is compensable, while injury from repetitive trauma during employment lasting more than 5 years is noncompensable. That infirm distinction might be best characterized as a case of acute arbitrariness. Or does compensability lie in the fact that Dorothy Schlup’s injury was to her wrists and arms, whereas Daniel Vencil’s injury was to his low back? If the repetitive injury is to an employee’s wrist, the claim is compensable, but if the repetitive injury is to the employee’s low back, the claim is noncompensable. Well, there you have it; nobody has quite explained it that way before.

Since this court continues to lie in its Procrustean bed made of “repetitive trauma” decisions based on a distorted definition of “accident” in the Nebraska Workers’ Compensation Act, one hoped that Dorothy Schlup’s case would have afforded *871this court an “identifiable moment” for application of “occupational disease,” expressed in the Workers’ Compensation Act, to injuries and disability from the cumulative effect of repetitive work-related trauma. Nonetheless, one can still hope. Although “[h]ope springs eternal,” employees injured by repetitive work-related trauma are a little more mortal and need a remedy under the Nebraska Workers’ Compensation Act.

Nevertheless, because Dorothy Schlup clearly established that her injury and disability were attributable to carpal tunnel syndrome as an occupational disease, the judgment of the Workers’ Compensation Court is otherwise correct and, therefore, must be affirmed.

White and Grant, JJ., join in this concurrence.