Moyers v. International Paper Co.
25 Neb. Ct. App. 282
Neb. Ct. App.2017Background
- Morton Moyers worked ~42 years in cardboard/paper manufacturing for Weyerhaeuser/International Paper and regularly was exposed to paper dust at work.
- He developed chronic respiratory problems dating to the 1990s and saw pulmonologist Dr. George Thommi, who opined workplace exposure aggravated his disease and recommended he stop work in Sept. 2014.
- Moyers filed a workers’ compensation petition alleging an occupational disease from long-term paper dust exposure; IPC disputed causation, timeliness, and sought to characterize the injury differently.
- The Workers’ Compensation Court (July 22, 2016) found an occupational disease but deferred permanent-loss-of-earning-capacity until vocational rehab; after vocational development proceedings, the court (Dec. 2, 2016) found Moyers permanently and totally disabled and awarded benefits.
- Medical evidence conflicted: Moyers’ treating pulmonologist attributed aggravation to workplace exposure; IPC’s reviewer (Dr. Gammel) attributed conditions to nonwork causes and viewed workplace dust as at most an irritant.
- The court excluded a belated industrial hygiene report, admitted treating records and questionnaires, credited the treating pulmonologist and the vocational counselor’s finding that Moyers could not realistically undertake vocational rehabilitation.
Issues
| Issue | Moyers' Argument | IPC's Argument | Held |
|---|---|---|---|
| Jurisdiction / final order | July 22 award was final; IPC’s appeal untimely | July 22 award was interlocutory because benefits (loss of earning power) were reserved | July 22 order was interlocutory; Dec. 2 order was final; IPC timely appealed |
| Admission / exclusion of exhibits | Treating records and reports (Thommi) admissible; rebuttal report unnecessary | Certain treating exhibits lacked foundation; late Industrial Hygiene report should be admitted for rebuttal | Court did not abuse discretion admitting Thommi records; properly excluded late Industrial Hygiene report for rebuttal |
| Characterization: occupational disease vs repetitive trauma | Exposure to unusual paper dust was peculiar to Moyers’ work and supports occupational disease | Exposure not peculiar; should be analyzed as repetitive trauma (not occupational disease) | Court properly treated injury as occupational disease (analogous to grain/wheat-dust precedent) |
| Causation, vocational rehab, and permanent total disability | Work aggravated preexisting respiratory disease; vocational counselor found rehabilitation not feasible; 100% loss of earning capacity | No reliable causation to work; vocational rehab should have been compelled and loss-of-earning analysis tied to adopted restrictions | Court’s credibility choices reasonable; sufficient evidence supported occupational disease, denial of vocational rehab, and permanent total disability |
Key Cases Cited
- Tchikobava v. Albatross Express, 293 Neb. 223 (evidentiary rulings and deference to Workers’ Compensation Court)
- Greenwood v. J.J. Hooligan’s, 297 Neb. 435 (standards for appellate relief from Workers’ Compensation Court)
- Jacobitz v. Aurora Co-op, 287 Neb. 97 (interlocutory nature of findings on compensability absent benefits determination)
- Ludwick v. Triwest Healthcare Alliance, 267 Neb. 887 (occupational disease definition and disablement point)
- Risor v. Nebraska Boiler, 277 Neb. 679 (distinguishing repetitive trauma from occupational disease)
- Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70 (exposure to workplace substance as occupational disease precedent)
- Liberty v. Colonial Acres Nsg. Home, 240 Neb. 189 (weight to give checklist/questionnaire medical opinions)
- Nichols v. Fairway Bldg. Prods., 294 Neb. 657 (viewing evidence in light most favorable to prevailing party)
- Hintz v. Farmers Co-op Assn., 297 Neb. 903 (appellate deference when medical opinions conflict)
- Manchester v. Drivers Mgmt., 278 Neb. 776 (lighting up or acceleration of preexisting conditions compensable)