Moyers v. International Paper Co.
25 Neb. Ct. App. 282
| Neb. Ct. App. | 2017Background
- Morton Moyers worked ~42 years in paper/cardboard manufacturing and stopped working on September 19, 2014 after worsening respiratory symptoms he attributed to long‑term exposure to paper dust.
- Moyers had a long preexisting history of asthma/allergic rhinitis and intermittent respiratory care since 1997; pulmonologist Dr. Thommi treated him and opined workplace exposure aggravated his condition.
- IPC (International Paper Company) contested causation, timely notice, and contended Moyers’ condition was due to nonwork causes; IPC’s reviewer Dr. Gammel opined the workplace may exacerbate but did not cause the disease.
- The Workers’ Compensation Court (July 22, 2016) found Moyers suffered an occupational disease and deferred loss‑of‑earning determination pending vocational rehab; after a vocational report concluding Moyers was unemployable, the court (Dec. 2, 2016) found him permanently and totally disabled and awarded weekly benefits.
- IPC appealed, challenging evidentiary rulings, the disease classification (occupational disease v. repetitive trauma), sufficiency of causation proof, denial/compulsion of vocational rehab, and the permanent total disability finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission/exclusion of exhibits | Moyers: treating records and questionnaire from Dr. Thommi are admissible under WC rules | IPC: records lack foundation/hearsay; late disclosure of industrial hygiene report warranted admission for rebuttal | Court: admitted Thommi’s signed records (within WC discretion); excluded late industrial hygiene report for lack of timely disclosure (no abuse of discretion) |
| Classification: occupational disease v. repetitive trauma | Moyers: long, workplace‑specific exposure to paper dust is peculiar to the trade → occupational disease | IPC: exposure not peculiar; should be treated as repetitive trauma (like noise cases) | Court: treated case as occupational disease (analogous to grain/wheat dust exposure), not repetitive trauma |
| Causation / burden to prove occupational disease | Moyers: progressive worsening after return to work, treating pulmonologist links workplace exposure to aggravation of preexisting disease | IPC: no objective medical proof workplace caused disease; Dr. Gammel says nonwork causes likely | Court: credited Thommi and factual pattern (worsening with exposure); plaintiff met burden to show occupational disease aggravation (appellate court defers to WC fact‑finder) |
| Vocational rehabilitation & permanent total disability | Moyers: vocational counselor found him unable to participate; claimant is an "odd‑lot" unemployable worker | IPC: counselor ignored medical restrictions and court’s earlier directions; should compel rehab and quash motion | Court: accepted vocational report that rehab not feasible, found Moyers an odd‑lot employee and permanently totally disabled; upheld denial of IPC’s motions |
Key Cases Cited
- Tchikobava v. Albatross Express, 293 Neb. 223 (Neb. 2016) (admission of evidence and WC fact‑finder deference)
- Greenwood v. J.J. Hooligan’s, 297 Neb. 435 (Neb. 2017) (standards for appellate relief from WC decisions)
- Jacobitz v. Aurora Co‑op, 287 Neb. 97 (Neb. 2010) (finding compensable injury without deciding benefits is interlocutory)
- Ludwick v. Triwest Healthcare Alliance, 267 Neb. 887 (Neb. 2004) (definition and timing of occupational disease disablement)
- Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70 (Neb. 1961) (exposure to unusual workplace dust as occupational disease precedent)
- Risor v. Nebraska Boiler, 277 Neb. 679 (Neb. 2009) (distinguishing repetitive trauma/noise cases from occupational disease involving substance exposure)