‘Reasonable Degree’ of Med Certainty Supports Claim that N95 Mask Caused Illness

Case File

A medical expert's conclusion based on a "reasonable degree of medical certainty" was enough to establish a causal link between a worker's using a required N95 mask on the job and her respiratory illness. Simply Research subscribers have access to the full text of the decision and other Nebraska resources.

Case

Prinz v. Omaha Operations LLC, No. S-23-994 (Neb. 09/27/24)

What Happened

A housekeeper for a rehabilitation facility was required to wear an N95 mask during her shift as part of the facility's precautions during the COVID-19 pandemic. During a shift, when the housekeeper retrieved a mask from the sterilizer machine the facility used so that employees could reuse masks, she placed it on her face and felt a "burning sensation" that was followed by difficulty breathing. A coworker called an ambulance for the housekeeper, and she went to the hospital. The next day, the housekeeper worked her final shift for the facility.

The housekeeper sought treatment with a family doctor as well as a pulmonologist, who diagnosed her with "moderate persistent asthma."

The worker filed a petition in the Workers' Compensation Court against the facility, claiming that she suffered an accident arising out of and in the course of her employment. She requested payment of medical expenses and of temporary total disability benefits, a determination of loss of earning capacity, and entitlement to permanent disability benefits, vocational rehabilitation benefits, and penalties, interest, and attorney fees.

The facility denied that the work accident or injury occurred, that the housekeeper suffered an injury related to her, and that the housekeeper was disabled to the extent she claimed.

The WCC entered an award finding that the housekeeper suffered an injury to her respiratory system in an accident arising out of and in the course of her employment. The WCC awarded the housekeeper temporary total and permanent partial disability benefits, past medical expenses, and future medical care. The WCC found that the housekeeper sustained a 30% loss of earning capacity.

The facility appealed to the Nebraska Supreme Court, arguing that the WCC erred in finding that the housekeeper suffered an injury to her respiratory system in an accident arising out of and in the course of her employment. In particular, the facility contended that an expert's testimony that the housekeeper's injury was "associated" with the mask was insufficient to establish a causal connection between a work accident and the injury.

Rule of Law

In Nebraska, if the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability. Although a claimant's medical expert does not have to couch her opinion in the words "reasonable medical certainty" or "reasonable probability," the opinion must be sufficient to establish the crucial causal link between the claimant's injuries and the accident occurring in the course and scope of the claimant's employment.

What the Nebraska Supreme Court Said

The WCC was not "clearly wrong" in finding that the housekeeper met her burden to prove causation.

"[The expert] articulated that his opinion was based on a reasonable degree of medical certainty," and the WCC "characterized [the expert's] opinion as 'certainly more definite than the words 'could,' 'may,' or 'possibly,'" the court wrote.

Instead, the Nebraska Supreme Court found that the record contained evidence to substantiate the factual conclusions the WCC reached.

Thus, the Nebraska Supreme Court affirmed the WCC's ruling.

Takeaway

While no magic words are required for expert medical testimony to establish a sufficient causal link between a claimant's injuries and the accident occurring in the course and scope of the claimant's employment, expert medical testimony based upon "could," "may," or "possibly" lacks the definiteness required to support an award from the WCC.

Share This Article: