Allen v. Boone Brothers Roofing
A-16-529
| Neb. Ct. App. | Dec 27, 2016Background
- June 8, 2013: Allen sought emergency treatment for cough, shortness of breath, and reported inhaling tar/fumes at work; diagnosed with reactive airway disease/acute bronchospasm and prescribed inhalers.
- Multiple follow-up hospital visits through late 2013 for similar respiratory complaints; diagnosis of reactive airway disease reiterated; a sleep study led to CPAP/oxygen recommendation unrelated to reactive airway diagnosis.
- Allen filed a workers’ compensation petition on October 30, 2013, alleging lung injury from the June 8, 2013 work exposure; he later dismissed that petition without prejudice in August 2014.
- Boone Brothers made a single medical payment (last payment July 2, 2013); Allen refiled an identical petition on September 8, 2015; Boone Brothers asserted the two-year statute of limitations as a bar and moved for summary judgment.
- The compensation court granted summary judgment for Boone Brothers, finding Allen’s 2015 filing time-barred; Allen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allen’s claim is barred by the 2-year statute of limitations in Neb. Rev. Stat. § 48-137 | Allen contends a latent and progressive injury or a material change in condition tolled/renewed the limitations period, so his 2015 petition is timely | Boone Brothers argues the limitations period began with the injury/last payment and Allen’s 2015 refile is untimely; no latent progression or materially increased disability occurred | Court held the claim is time-barred: (1) injury was not latent/progressive because diagnosis and allegations were known in 2013; (2) no material increase in disability claim or employer-paid compensation to trigger the second exception |
Key Cases Cited
- Rice v. Poppe, 293 Neb. 467 (Neb. 2016) (summary judgment standard and appellate review)
- Lenz v. Central Parking System of Neb., 288 Neb. 453 (Neb. 2014) (statutory interpretation and timing for limitations under workers’ compensation)
- Wissing v. Walgreen Company, 20 Neb. App. 332 (Neb. App. 2012) (latent and progressive-injury tolling rule for § 48-137)
- White v. Sears, Roebuck & Co., 230 Neb. 369 (Neb. 1988) (material-change-in-condition exception to limitations when employer paid benefits and additional compensation is sought)
- McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903 (Neb. 1999) (voluntary payments do not admit liability under workers’ compensation)