August 12, 2019 | Accidents, Workers' compensation

Technically, there are three types of injuries under Nebraska Workers’ Compensation Law:

1.  A “traumatic” injury, such as a car accident, fall, lifting injury, etc. A traumatic injury occurs at a discreet point in time with a clearly identifiable beginning and end.
2.  A “repetitive” or “cumulative” injury, such as carpal tunnel syndrome or a hearing loss claim, etc. A repetitive or cumulative injury is the result of a series of small occurrences that build over time to produce a recognizable injury.
3.  An “occupational” or “toxic” exposure such as a chemical burn or poisoning, etc. An occupational or toxic exposure is the body’s reaction to a foreign substance that produces an injury.

This post focuses on traumatic and repetitive injuries. In terms of benefits, these types of  injuries are essentially treated identically. The medical threshold (reasonable and necessary) is the same, the compensation schedule is the same, the test of maximum medical improvement is the same.  The one important difference is how the date of injury is determined. – but there is one very important difference – which is how the date of injury is determined.

The date of the injury is important because it  is used to determine the period used to calculate an injured worker’s average weekly wage, whether the injury occurred in the course of and arose out of the employment, and it is the date from which compensation starts if the injured worker is off work. The Court requires there to be a specific date of injury in every case.

In a case involving a traumatic injury, the date of injury is very easy to determine. What date did the car accident, slip and fall, or lifting injury occur? It’s that simple.

Cases involving repetitive injuries are considerably more complicated. The date of injury in a repetitive injury case is the date that: 1. The injured worker stopped work and sought treatment for the injury or 2. The injured worker modified the manner in which he or she performed his or her job.

What does it mean to stop work and seek treatment? The Courts have interpreted this requirement  very, very literally. An injured worker actually has to interrupt his or her work and go seek treatment from a medical provider for the injury. For instance, if a worker gets off work at 5:00pm, and s/he leaves work at 4:59pm to go to the doctor for a work-related condition, then s/he has met the two conditions, and that date is the date of the injury. If the worker gets off of work at 5:00pm and s/he finishes the work-day then leaves at 5:01 to go seek treatment,  that worker has not stopped or missed work  to seek treatment. The requirements to establish the date of injury have not been satisfied unless there is some missed time from work and a medical appointment for the injury.

What does it mean to modify the manner in which work is performed?  This means the injured worker  needs to provide credible evidence that s/he modified the way she/he did their usual work because of an injury. For instance, instead of typing with his or her fingers, the worker utilized a voice recognition program. Or, instead of cutting meat with his or her right arm, the worker switches to his or her left arm. It can be as simple as that, but the evidence needs to be completely credible.