Risor v. Nebraska Boiler

relapse, violence, antisocial behavior, aggressiveness, and poor
stress coping.
We need not reiterate the egregious facts upon which his
current sexual assault conviction is based. Taking into account
all relevant factors, we conclude that the district court did not
abuse its discretion in sentencing Payan.
V. CONCLUSION
In summary, we conclude that the finding that Payan com-
mitted an aggravated offense was properly made by the trial
judge for purposes of the lifetime registration provisions of
SORA, which are civil in nature, but the question should have
been submitted to the jury for the purpose of lifetime com-
munity supervision pursuant to § 83-174.03, which is punitive.
We conclude, however, that this error was harmless and does
not require reversal. We further conclude that Payan’s sentence
was not excessive, and we affirm the judgment of the district
court in all respects.
A ffirmed.
miller-lermAn, J., participating on briefs.
RISOR v. NebRASkA bOILeR 	679
Cite as 277 Neb. 679
JAmes e. risor , Appellee , v.
nebrAskA boiler , AppellAnt.
765 N.W.2d 170
Filed May 1, 2009. 	No. S-08-726.
1. Workers’ Compensation: Appeal and Error. When reviewing a compensa-
tion award under Neb. Rev. Stat. § 48-185 (Reissue 2004), an appellate court
may modify, reverse, or set aside a Workers’ Compensation Court decision only
when (1) the compensation court acted without power or exceeded its powers;
(2) the judgment, order, or award was procured by fraud; (3) the record lacks
sufficient competent evidence to warrant the making of the order, judgment, or
award; or (4) the compensation court’s factual findings do not support the order
or award.
2. ____: ____. On appellate review of a workers’ compensation award, the trial
judge’s factual findings have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
and an appellate court independently decides questions of law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

4. Workers’ Compensation. Under Nebraska’s workers’ compensation statutes, the
law compensates a worker only for injuries resulting from an accident or occupa-
tional disease.
5. Workers’ Compensation: Words and Phrases. The compensability of a condi-
tion resulting from the cumulative effects of work-related trauma should be tested
under the statutory definition of accident.
6. Workers’ Compensation. For scheduled disabilities under Neb. Rev. Stat.
§ 48-121(3) (Reissue 2004), a worker is compensated for his or her loss of use of
a body member; loss of earning power is immaterial in determining compensation
under § 48-121(3).
7. Workers’ Compensation: Words and Phrases. A worker’s noise-induced hear-
ing loss is a condition resulting from the cumulative effects of work-related
trauma, tested under the statutory definition of accident.
8. Workers’ Compensation: Proof. Under Neb. Rev. Stat. § 48-151(2) (Reissue
2004), an injured worker must satisfy three elements to prove an injury is the
result of an accident: (1) The injury must be unexpected or unforeseen, (2) the
accident must happen suddenly and violently, and (3) the accident must produce
at the time objective symptoms of injury.
9. Workers’ Compensation: Time: Proof: Words and Phrases. Under Neb. Rev.
Stat. § 48-151(2) (Reissue 2004), “suddenly and violently” does not mean instan-
taneously and with force; instead, the element is satisfied if the injury occurs at
an identifiable point in time, requiring the employee to discontinue employment
and seek medical treatment. The time of an accident is sufficiently definite if
either the cause is reasonably limited in time or the result materializes at an iden-
tifiable point.
10. Workers’ Compensation: Time: Proof. An employee establishes an identifiable
point in time when a repetitive trauma injury occurs if the employee stops work
and seeks medical treatment.
11. Workers’ Compensation: Time. The date of an accident resulting in a compen-
sable injury is a question of fact, which the trial judge resolves.
12. Workers’ Compensation: Proof. To recover under the Nebraska Workers’
Compensation Act, a claimant must prove by a preponderance of the evidence
that an accident or occupational disease arising out of and occurring in the course
of employment proximately caused an injury which resulted in disability compen-
sable under the act.
13. Judgments: Appeal and Error. When testing the trial judge’s findings of fact, an
appellate court considers the evidence in the light most favorable to the success-
ful party and gives the successful party the benefit of every inference reasonably
deducible from the evidence.
14. Trial: Witnesses. As the trier of fact, the trial judge determines the credibility of
the witnesses and the weight to give their testimony.
15. ____: ____. When a witness makes contradictory statements, the resolution of
that contradiction presents a question of fact.
16. Workers’ Compensation: Time. An employee’s claim for injury resulting from
an accident is not compensable until the employee discontinues work, even if for
a brief time, and seeks medical treatment.
680 	277 NebRASkA RePORTS

17. ____: ____. A job transfer can constitute a discontinuance of work that estab-
lishes the date of injury.
18. Workers’ Compensation: Rules of Evidence. Under Neb. Rev. Stat. § 48-168
(Cum. Supp. 2008), the Nebraska Workers’ Compensation Court is not bound by
formal rules of procedure.
19. Workers’ Compensation: Words and Phrases. except for scheduled disabili-
ties, disability is defined in terms of employability and earning capacity rather
than in terms of loss of bodily function.
20. Workers’ Compensation: Time. In gradual injury cases, the date of injury serves
to mark the point in time when the injury rises to the level of disability.
21. Workers’ Compensation: Legislature: Intent. The Legislature intended to fix
benefits for loss of specific body members under Neb. Rev. Stat. § 48-121(3)
(Reissue 2004) without regard to the worker’s ability to continue working in a
particular occupation or industry.
22. Workers’ Compensation. A worker is entitled to compensation for a scheduled
disability even if he or she continues to work. Conversely, a worker is not entitled
to an award for loss of earning power when the injury is limited to specific body
members, unless some unusual or extraordinary condition as to other members or
parts of the body develops as the result of injury.
23. Workers’ Compensation: Time. For scheduled disabilities caused by repetitive
trauma, the date disability begins is the same as the date of injury for whole body
impairments caused by repetitive trauma.
24. Workers’ Compensation: Notice. Under Neb. Rev. Stat. § 48-133 (Reissue
2004), an employer’s notice or knowledge of a worker’s injury is sufficient if a
reasonable person would conclude that the injury is potentially compensable and
that the employer should therefore investigate the matter further.
25. ____: ____. When an employer’s foreman, supervisor, or superintendent
has knowledge of the employee’s injury, that knowledge is imputed to the
employer.
26. ____: ____. knowledge imputed to an employer can satisfy the notice require-
ment of Neb. Rev. Stat. § 48-133 (Reissue 2004).
27. ____: ____. An employee is not required to give an opinion as to the cause of
an injury in order to satisfy the notice requirement of Neb. Rev. Stat. § 48-133
(Reissue 2004).
28. ____: ____. When the parties do not dispute the facts concerning reporting and
notice, whether such facts constitute sufficient notice to the employer under Neb.
Rev. Stat. § 48-133 (Reissue 2004) presents a question of law.
29. ____: ____. Under Neb. Rev. Stat. § 48-144.04 (Reissue 2004), the employer has
sufficient knowledge of an employee’s injury if a reasonable person would con-
clude that an employee’s injury is potentially compensable and that the employer
should therefore investigate the matter further.
30. Appeal and Error. Under the law-of-the-case doctrine, an appellate court’s hold-
ings on issues presented to it conclusively settle all matters ruled upon, either
expressly or by necessary implication.
Appeal from the Workers’ Compensation Court. Affirmed.
RISOR v. NebRASkA bOILeR 	681
Cite as 277 Neb. 679

Paul Prentiss and bill Lamson, of Timmermier, Gross &
Prentiss, and John burns, of burns Law Firm, for appellant.
Martin V. Linscott, of Linscott Law Office, for appellee.
H eAvicAn, c.J., WrigHt, connolly, stepHAn, mccormAck,
and miller-lermAn, JJ.
connolly, J.
I. SUMMARY
Nebraska boiler appeals from a review panel’s decision of
the Workers’ Compensation Court. The review panel affirmed
the trial judge’s order that the appellee, James e. Risor, sus-
tained an accident—a noise-induced hearing loss. It reversed,
however, that part of the trial judge’s order that determined
compensation began on Risor’s retirement date. The review
panel concluded that the appropriate date for commencing
payments was the first date that Risor discontinued work for
treatment, instead of the date that he retired and stopped work-
ing altogether.
This appeal presents several interrelated questions:
1. Is Risor’s noise-induced hearing loss an accident caused
by repetitive trauma or an occupational disease caused by a
condition of employment?
2. What is the injury date for a noise-induced hearing loss
and is that date the same as the date disability begins for cal-
culating compensation?
3. Is Nebraska boiler entitled to a credit for wages paid
to Risor, who continued to work after sustaining a scheduled
disability?
4. Did the Workers’ Compensation Court correctly find that
Nebraska boiler had knowledge of Risor’s injury because it
had accommodated his hearing loss, which knowledge excused
the written notice requirement for claimants?
5. If Nebraska boiler had sufficient information to warrant
further investigation of Risor’s potentially compensable injury
but failed to file an injury report, was the statute of limitations
tolled for Risor’s claim?
682 	277 NebRASkA RePORTS

II. bACkGROUND
Risor began working for Nebraska boiler in 1973 and did
many different jobs in the plant during his 31 years of employ-
ment. In manufacturing boilers, Nebraska boiler’s plant gen-
erates significant noise levels. In 1988, concerned about his
hearing loss, Risor saw a physician at the veterans medical
center in Omaha, Nebraska. The records from that examina-
tion showed that he had a profound bilateral hearing loss. The
records, however, do not mention his work environment as a
possible cause of his hearing loss. In June 1993, Risor com-
pleted a “Company Care Hearing Questionnaire.” by check-
ing affirmative responses, he reported that his hearing was
poor and that his hearing had been tested. He double-checked
in the space indicating his affirmative response that he had a
noisy job. On October 19, Nebraska boiler referred Risor to a
physician for a hearing loss evaluation. The physician wrote a
report to Nebraska boiler’s nurse, detailing Risor’s severe to
profound sensorineural, bilateral hearing loss. The report also
stated that Risor had seen two other physicians within the last
10 years.
Risor missed worktime to attend the October 1993 office
visit, which was the first time that Risor had missed work
because of his hearing loss. Later, Nebraska boiler evaluated
Risor’s hearing loss in 1999, 2000, 2002, and 2003.
In January 2004, Risor filed a petition seeking workers’
compensation benefits for multiple injuries. besides his hear-
ing loss, Risor alleged injuries of degenerative arthritis of
his shoulders, neck, and knee; carpal tunnel syndrome; and
a trigger thumb. On February 12, he retired. Nebraska boiler
filed its first injury report regarding Risor’s hearing loss on
February 17.
Risor alleged that Nebraska boiler had notice and knowl-
edge of the accident, which occurred on or about June 25,
2002. Nebraska boiler answered that Risor had failed to
give notice of the injury as soon as practical and that his
claim was barred as untimely. In July 2005, another physician
reported that Risor had a 100-percent impairment for both
RISOR v. NebRASkA bOILeR 	683
Cite as 277 Neb. 679

ears and that his employment at Nebraska boiler was a defini-
tive contributor.
At trial in November 2005, the parties first explained their
positions to the trial judge. Risor’s attorney could not explain
the complaint’s date of injury—June 25, 2002—except that it
was hard to pinpoint the exact date in repetitive trauma cases.
The record shows that Risor’s trial attorney was not the attor-
ney who filed Risor’s complaint. The record also shows that
June 25 was one of the dates on which Nebraska boiler evalu-
ated Risor’s hearing. but Risor’s counsel argued that Risor’s
October 1993 examination was possibly a sufficient interrup-
tion in employment to constitute a date of injury and that he
would present evidence of the events on that date. So, before
trial began, Nebraska boiler knew that Risor was contending
that the examination in October 1993 possibly established a
date of injury for his hearing loss.
Risor testified that he began noticing in the mid-1980’s
that he had hearing problems. He thought it was work related
because the noise in the plant was so bad. He stated that
everyone in the shop knew about his hearing loss and accom-
modated him. Although his hearing loss interfered with his
work, he could lipread for simple instructions and his supervi-
sor would write him notes. His supervisor stated that Risor’s
hearing problems did not interfere with his ability to perform
his duties.
Risor initially stated that he had not missed any work in
1993 when Nebraska boiler referred him to a physician for
a hearing examination, because he went during his lunch
break. On cross-examination, however, he stated that he
only had half-hour lunch breaks and that the physician’s
office was 10 to 15 minutes away from the plant. He said
that he had probably missed some work that day but that he
believed Nebraska boiler would have reimbursed him for the
missed time.
Regarding his other injuries, Risor testified that some of
them had started when he was injured after falling from a scaf-
folding in 1983. He stated that he had continued working at
Nebraska boiler because he could not get another job with his
hearing loss and other physical ailments.
684 	277 NebRASkA RePORTS

1. triAl Judge’s AWArd
In April 2006, the trial judge entered an award for total
and permanent disability, finding that Risor had a 100-percent
hearing loss. He determined that the accident date was October
19, 1993, when Risor missed work for the referred office visit.
And he calculated Risor’s benefits based on his average weekly
earnings in 1993. but he ordered the payments for total per-
manent disability to commence on February 12, 2004, when
Risor retired.
The trial judge rejected Nebraska boiler’s argument that it
did not have notice of Risor’s injury as required by Neb. Rev.
Stat. § 48-133 (Reissue 2004). The judge reasoned that Risor’s
supervisors had accommodated his hearing loss even before
1988. He also rejected Nebraska boiler’s argument that under
Neb. Rev. Stat. § 48-137 (Reissue 2004), Risor’s claim was
time barred. He concluded that an exception to the limitation
period applied because Nebraska boiler had not filed an injury
report until 2004.1
2. nebrAskA boiler Attempts to obtAin A neW triAl
so former cArrier cAn pArticipAte
Two attorneys from two different workers’ compensation
insurers represented Nebraska boiler for the coverage period
from September 1, 1992, to the time of trial. but because the
first carrier had misinformed Nebraska boiler that it was the
carrier in 1992, the company’s actual carrier for 1992 did not
represent Nebraska boiler at trial. In May 2006, Nebraska
boiler attempted to obtain a new trial so the excluded carrier,
Twin City Fire Insurance Company (Twin City), could partici-
pate. The trial judge overruled the motion.
both parties appealed to the review panel. Twin City attempted
to intervene so it could request a new trial. The review panel
denied intervention. but it stayed adjudication of the parties’
appeals while Twin City appealed its denial of intervention. In
Risor v. Nebraska Boiler (Risor I),2 we affirmed.
1 See Neb. Rev. Stat. §§ 48-144.01 and 48-144.04 (Cum. Supp. 2008).
2 Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).
RISOR v. NebRASkA bOILeR 	685
Cite as 277 Neb. 679

3. revieW pAnel reverses stArting dAte
for compensAtion
In May 2008, after this court issued its mandate, the review
panel issued a decision affirming in part and in part reversing
the trial judge’s award. In his original appeal to the review
panel, Risor had assigned only one error—the trial judge’s
finding on the injury date. The review panel concluded that
the trial judge erred in concluding that total disability bene-
fits were payable to Risor commencing February 12, 2004,
when he retired. The panel stated that under Neb. Rev. Stat.
§ 48-121(3) (Reissue 2004), total loss of hearing in both
ears constituted total and permanent disability. Citing Hobza
v. Seedorff Masonry, Inc.,3 the review panel modified the
award to provide that permanent total indemnity was pay-
able from and after the date of injury—October 19, 1993.
Remember, this date was the first time Risor visited the
company’s physician.
4. revieW pAnel A ffirms determinAtion
of Accident
In its cross-appeal to the review panel, Nebraska boiler
assigned that the trial judge erred in determining that Risor’s
hearing loss was caused by an accident instead of an occu-
pational disease. The review panel recognized that a split of
authority existed on the hearing loss issue, but it concluded that
the trial judge did not err in evaluating Risor’s hearing loss as
an accident. Citing Dawes v. Wittrock Sandblasting & Painting,4
it stated that compensation for repetitive trauma injuries should
be tested under the statutory definition of an accident. It also
noted that the statutory definition of an occupational disease
requires a disease to be “‘peculiar to a particular trade.’”5 It
concluded that applying this requirement “is difficult because
3 Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).
4 Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved in part on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
5 See Neb. Rev. Stat. § 48-151(3) (Reissue 2004).
686 	277 NebRASkA RePORTS

a wide variety of trades expose workers to repetitive high
noise levels.”
5. revieW pAnel A ffirms dAte of inJury
The review panel determined that the trial judge was not
clearly wrong in finding that the injury date was October 19,
1993. It held that October 19 was the date when the injury
first caused Risor to interrupt or discontinue work. The panel
reasoned that although Risor could physically perform his work
after 1993, his supervisors and coworkers had accommodated
his hearing loss through writing notes, using hand signals, and
mouthing words for Risor to lipread.
6. revieW pAnel A ffirms determinAtion tHAt nebrAskA
boiler HAd notice of risor’s H eAring loss
The panel agreed with the trial judge that Nebraska boiler
had notice of a potentially compensable claim, which should
have caused it to investigate further. It noted three relevant
facts: (1) The employer had taken precautions to prevent the
noise level at its workplace from causing hearing loss; (2) its
nurse had referred Risor to a hearing specialist in 1993; and (3)
it knew the results of his evaluation.
7. revieW pAnel A ffirms determinAtion tHAt
risor’s clAim WAs not time bArred
The review panel rejected Nebraska boiler’s argument that
the exception under § 48-144.04 to the time limit for filing a
claim did not apply because Risor had notified the company of
his claim shortly before his retirement. It concluded that notice
or knowledge under § 48-144.04 was satisfied by the same
notice or knowledge that satisfies § 48-133.
III. ASSIGNMeNTS OF eRROR
Nebraska boiler assigns that the review panel erred in these
determinations: (1) Risor’s hearing loss fell within the statutory
definition of an accident instead of an occupational disease; (2)
the date of Risor’s accident was October 19, 1993; (3) Risor
gave timely notice of his injury; (4) Risor’s claim was not
barred by the statute of limitations; (5) the company’s compen-
sation payments for total permanent disability commenced on
RISOR v. NebRASkA bOILeR 	687
Cite as 277 Neb. 679

October 19, 1993, with no credit for wages paid to Risor until
retirement; and (6) Twin City could not intervene postjudgment
as a party of interest.
IV. STANDARD OF ReVIeW
[1-3] When reviewing a compensation award under Neb.
Rev. Stat. § 48-185 (Reissue 2004), we may modify, reverse,
or set aside a Workers’ Compensation Court decision only
when (1) the compensation court acted without power or
exceeded its powers; (2) the judgment, order, or award was
procured by fraud; (3) the record lacks sufficient competent
evidence to warrant the making of the order, judgment, or
award; or (4) the compensation court’s factual findings do
not support the order or award.6 And on appellate review of
a workers’ compensation award, the trial judge’s factual find-
ings have the effect of a jury verdict and will not be disturbed
unless clearly wrong.7 Statutory interpretation, however, pre-
sents a question of law, and we independently decide ques-
tions of law.8
V. ANALYSIS
1. noise -induced H eAring loss is A
repetitive trAumA inJury
[4] Nebraska boiler first contends that the review panel
should have analyzed hearing loss under the statutory defini-
tion of an occupational disease. Under Nebraska’s workers’
compensation statutes, the law compensates a worker only
for injuries resulting from an accident or occupational dis-
ease.9 Nebraska boiler wishes to characterize Risor’s injury
as an occupational disease because it argues that under that
framework, Risor did not become disabled until February 12,
2004, his retirement date. Obviously, this later date would
reduce Risor’s award. It contends that Risor’s hearing loss
6 Lagemann v. Nebraska Methodist Hosp., ante p. 335, 762 N.W.2d 51
(2009).
7 Id.
8 Id.
9 See Neb. Rev. Stat. § 48-101 (Reissue 2004).
688 	277 NebRASkA RePORTS

was an occupational disease because the unusually noisy
environment of its plant was unique to this trade and even to
its plant.
Section 48-151(3) defines occupation disease. It means
“only a disease which is due to causes and conditions which
are characteristic of and peculiar to a particular trade, occupa-
tion, process, or employment and excludes all ordinary diseases
of life to which the general public is exposed.” Nebraska boiler
relies on two 1960 cases dealing with workers’ claims of occu-
pational disease injuries.
In Riggs v. Gooch Milling & Elevator Co.,10 the plaintiff’s
employment exposed him to unusual amounts of wheat dust,
which exposure was peculiar to and characteristic of grain
elevator operations. The medical evidence sufficiently sup-
ported his claim that his long period of exposure caused his
emphysema and secondary conditions. In the other case, Ritter
v. Hawkeye-Security Ins. Co.,11 the employee, a dishwasher,
developed contact dermatitis because of his exposure to deter-
gents and cleansing chemicals. The use of these chemicals
was characteristic of and peculiar to the occupation of dish-
washing, which involved a hazard which was greater than
the risks in employment generally.12 We have also dealt with
other exposures to workplace substances that resulted in occu-
pational diseases, including exposure to latex,13 silica,14 and
asbestos particles.15
[5] but in contrast to substance exposure cases, we have
declined to analyze repetitive trauma cases as occupational
10 Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 112 N.W.2d 531
(1961).
11 Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 792, 135 N.W.2d 470
(1965).
12 See, also, Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).
13 Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517
(2004) (per curiam); Morris v. Nebraska Health System, 266 Neb. 285, 664
N.W.2d 436 (2003).
14 Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).
15 Osteen v. A.C. and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981).
RISOR v. NebRASkA bOILeR 	689
Cite as 277 Neb. 679

diseases.16 We have recognized on several occasions that repeti-
tive trauma cases have characteristics of both an accident and
an occupational disease. Yet we have consistently held that the
compensability of a condition resulting from the cumulative
effects of work-related trauma should be tested under the statu-
tory definition of accident.17
Nebraska boiler argues that occupational hearing loss is
distinguishable from repetitive trauma injuries. It contends
that unlike repetitive trauma injuries, an occupational dis-
ease does not involve an employee’s job duties or physi-
cal actions. As examples, it cites repetitive trauma injuries
resulting from “continuous heavy lifting or repetitive use of
power tools.”18 It is true that repetitive trauma injuries usually
involve employees’ own physical movements in performing
their duties. but as Nebraska boiler’s examples illustrate, the
trauma on the employee’s body is often inseparable from the
external objects that the employee must operate, lift, or other-
wise manipulate to perform his or her job. Thus, repetitive
trauma injuries frequently also involve an external source of
physical stress.
Moreover, 	under 	the 	workers’ 	compensation 	statutes,
“injury,” meaning injury caused by accident or occupational
disease, is defined as “violence to the physical structure of the
body.”19 This definition is obviously broad enough to include
external sources of trauma to the body, such as loud noise,
that are unrelated to the employee’s physical movements. For
example, we have upheld a disability award for a highway
maintenance worker’s snow blindness after he plowed snow
for 12 hours. His “condition of disability came about, either
16 See, Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004);
Dawes, supra note 4.
17 See, e.g., Veatch, supra note 16; Dawes, supra note 4; Fay v. Dowding,
Dowding, 261 Neb. 216, 623 N.W.2d 287 (2001); Jordan v. Morrill
County, 258 Neb. 380, 603 N.W.2d 411 (1999). See, also, Swoboda v.
Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166 (2004).
18 brief for appellant at 13.
19 § 48-151(4).
690 	277 NebRASkA RePORTS

directly or indirectly, as a result of exposure to the sun’s rays”
as reflected off the snow.20
Similarly, many courts have assumed or specifically held
that noise-induced hearing loss is an accident.21 Some of these
courts have explicitly reasoned that extremely loud noises pro-
duce an external traumatic force on the ears, which is traceable
to the resulting hearing loss.22
Additionally, we do not believe that noise exposure is a
condition of employment peculiar to Risor’s employment.23
Under the definition of occupational disease, “the unique
condition of the employment must result in a hazard which
distinguishes it in character from employment generally.”24
We agree with the review panel that the range of workers
exposed to loud noises is too broad to satisfy this require-
ment. Many workers’ environments expose them to sounds
capable of producing hearing loss. To name but a few, these
workers include firefighters,25 police officers,26 construction
20 See Hayes v. McMullen, 128 Neb. 432, 434, 259 N.W. 165, 167 (1935).
21 See, Powers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516
(2007); Dorsey v. United Tech./Norden Systems, 47 Conn. App. 810, 707
A.2d 744 (1998); Food Machinery Corp. v. Shook, 425 So. 2d 163 (Fla.
App. 1983); Shipman v. Employers Mutual &c. Ins. Co., 105 Ga. App.
487, 125 S.e.2d 72 (1962); Indiana State Police Dept. v. Carich, 680
N.e.2d 4 (Ind. App. 1997); Winkelman v. Boeing Airplane Co., 166 kan.
503, 203 P.2d 171 (1949); Manalapan Mining Co., Inc. v. Lunsford, 204
S.W.3d 601 (ky. 2006); Romero v. Otis Intern., 343 So. 2d 405 (La. App.
1977); Cisneros v. Molycorp, Inc., 107 N.M. 788, 765 P.2d 761 (N.M.
App. 1988); Peabody v. Galion Corp. v. Workman, 643 P.2d 312 (Okla.
1982); Hinkle v. H. J. Heinz Company, 462 Pa. 111, 337 A.2d 907 (1975);
Schurlknight v. City of North Charleston, 352 S.C. 175, 574 S.e.2d 194
(2002); Ferrell v. Cigna Property & Cas. Ins. Co., 33 S.W.3d 731 (Tenn.
2000).
22 See, e.g., Food Machinery Corp., supra note 21; Demars v. Rickel
Manufacturing Corporation, 223 kan. 374, 573 P.2d 1036 (1978); Romero,
supra note 21; Hinkle, supra note 21.
23 See § 48-151(3).
24 Jordan, supra note 17, 258 Neb. at 387, 603 N.W.2d at 417. See Miller v.
Goodyear Tire & Rubber Co., 239 Neb. 1014, 480 N.W.2d 162 (1992).
25 Schurlknight, supra note 21.
26 City of Scranton v. W.C.A.B. (Roche), 909 A.2d 485 (Pa. Commw. 2006).
RISOR v. NebRASkA bOILeR 	691
Cite as 277 Neb. 679

workers,27 railroad workers,28 road workers,29 airport work-
ers,30 mechanics,31 machinists,32 miners,33 and factory work-
ers.34 So we conclude that Risor’s exposure to loud noises did
not create a hazard that distinguished it in character from a
myriad of other occupations.35
Finally, in its reply brief, Nebraska boiler argues that hear-
ing loss cannot satisfy the statutory definition of an accident.
It contends that sustaining a hearing loss was not “an unex-
pected or unforeseen injury” at its plant.36 The “unexpected or
unforeseen” element of the definition is satisfied if the cause
was of an accidental character or the effect was unexpected
or unforeseen.37 Nebraska boiler points out that it required its
employees to wear hearing protection because the noise was
a danger to their health. So it argues that Risor’s hearing loss
was not unexpected or unforeseen.
Nebraska boiler’s argument gets lost in a legal cul-de-
sac. It argues that the hearing loss danger was obvious to
any employee because of the noise level, so it could not be
unexpected or unforeseen. Conversely, it denies knowing that
Risor’s hearing loss could have resulted from the noise level in
its plant. We conclude that Nebraska boiler’s employees were
entitled to rely on the hearing protection that the company
provided them to protect them from injury. Risor testified that
27 Romero, supra note 21.
28 Ashby v. Long Island Rail Road Co., 7 A.D.3d 651, 777 N.Y.S.2d 177
(2004).
29 Muscatine County v. Morrison, 409 N.W.2d 685 (Iowa 1987).
30 Shipman, supra note 21.
31 OCT Equipment, Inc. v. Ferrell, 114 P.3d 479 (Okla. Civ. App. 2005).
32 Elliott Turbomachinery Co. v. W.C.A.B. (Sandy), 898 A.2d 640 (Pa.
Commw. 2006).
33 Myers v. State Workmen’s Comp. Com’r, 160 W. Va. 766, 239 S.e.2d 124
(1977).
34 Hinkle, supra note 21.
35 See Dorsey, supra note 21.
36 See § 48-151(2).
37 See Jordan, supra note 17.
692 	277 NebRASkA RePORTS

wearing hearing protection was always mandatory and that he
always complied with this rule at work.
We recognize that some courts have analyzed loud noises
as a condition of employment leading to an occupational dis-
ease.38 And some states have statutes setting out standards and
rules for occupational hearing loss claims.39 Among these stat-
utes, some specifically classify noise-induced hearing loss as
an occupational disease.40
One reason these states enacted separate statutes dealing
with hearing loss was to protect workers’ compensation insur-
ers from the unexpected rising tide of industrial-related hearing
impairments beginning in the late 1940’s.41 Allowing hearing
loss benefits as a scheduled disability, without requiring loss of
wages, troubled some states. These states were concerned that
claimants could potentially receive disability benefits while
continuing to work.42 Thus, some states now require a period of
38 See, Van Voorhis v. Workmen’s Comp. Appeals Bd., 37 Cal. App. 3d 81,
112 Cal. Rptr. 208 (1974); Martinez v. Industrial Commission, 40 Colo.
App. 485, 580 P.2d 36 (1978); Alexander v. Harcon, Inc., 133 Idaho 785,
992 P.2d 780 (2000); Michales v Morton Salt, 450 Mich. 479, 538 N.W.2d
11 (1995); Ahlberg v. SAIF, 199 Or. App. 271, 111 P.3d 778 (2005);
Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 372 S.e.2d 411
(1988); Myers, supra note 33; Lumbermens Mut. Cas. Co. v. Perkins, No.
09-98-131 CV, 2000 WL 84889 (Tex. App. Jan. 27, 2000) (not designated
for publication).
39 See, Ala. Code § 25-5-110 (2007); 820 Ill. Comp. Stat. Ann. § 305/8(e)(16)
(LexisNexis Cum. Supp. 2008); Iowa Code Ann. §§ 85b.1 to 85b.15
(West 1996 & Cum. Supp. 2009); Md. Code Ann., Lab. & empl. § 9-505
(LexisNexis 2008); Mo. Ann. Stat. §§ 287.067 and 287.197 (West Cum.
Supp. 2008); N.J. Stat. Ann. §§ 34:15-35:10 to 34:15-35.22 (West 2000);
N.Y. Workers’ Comp. Law §§ 49-aa to 49-hh (Mckinney 2005); N.C. Gen.
Stat. § 97-53(13) and (28) (LexisNexis 2007); 77 Pa. Cons. Stat. Ann.
§ 513(8)(i) (West 2002); R.I. Gen. Laws § 28-33-19(a)(4) (2003); Wis.
Stat. Ann. § 102.555 (West 2004).
40 See, Ala. Code § 25-5-110; 820 Ill. Comp. Stat. Ann. § 305/8(e)(16); N.C.
Gen. Stat. § 97-53(28); R.I. Gen. Laws § 28-33-19(a)(4).
41 See 3 Arthur Larson & Lex k. Larson, Larson’s Workers’ Compensation
Law § 52.05 (2008).
42 See id., citing Fleming v. Industrial Com., 95 Ill. 2d 329, 447 N.e.2d 819,
69 Ill. Dec. 384 (1983).
RISOR v. NebRASkA bOILeR 	693
Cite as 277 Neb. 679

separation from the noise before a claim is compensable.43 Yet,
some of these statutes do more than protect the workers’ com-
pensation insurer from claims that possibly involve extended
indemnity. They also preserve the employee’s claim by provid-
ing that the statute of limitations does not commence until the
end of employment or the separation period.44 Other statutes
provide that the statute of limitations does not commence until
the date of disability45 or until the date of the last trauma or
hazardous exposure.46
Obviously, occupational hearing loss raises unique issues
regarding accrual dates and limitation periods. As noted,
Nebraska boiler wishes to characterize Risor’s injury as an
occupational disease. Under an occupational disease frame-
work, it argues that Risor’s hearing loss did not disable
him until he sustained a labor market access loss. It further
argues that because Risor continued to receive wages, he
did not sustain a labor market access loss until he retired in
February 2004.
We recognize that a labor market access loss is the test of
disability in occupational disease cases, at least when the dis-
ease results in a whole body injury.47 In accident cases involv-
ing whole body impairment, we also test a claim of disability
for a loss of employability and earning capacity rather than a
loss of bodily function.48 but these rules do not apply when
accidents or occupational diseases result in scheduled disabili-
ties, which include hearing loss.49
43 See, e.g., Mo. Ann. Stat. § 287.197(7); N.J. Stat. Ann. § 34:15-35:20; N.Y.
Workers’ Comp. Law § 49-bb; Wis. Stat. Ann. § 102.555(7).
44 See, e.g., Iowa Code Ann. § 85b.8; Mo. Ann. Stat. § 287.197(7); N.J. Stat.
Ann. § 34:15-35:20; N.Y. Workers’ Comp. Law § 49-bb; Wis. Stat. Ann.
§ 102.555(4).
45 See, e.g., Ind. Code Ann. § 22-3-7-32 (LexisNexis Cum. Supp. 2008); Mo.
Ann. Stat. § 287.063 (Cum. Supp. 2008).
46 See, Ark. Code Ann. § 11-9-702(2)(A) (Supp. 2007); Okla. Stat. Ann. tit.
85, § 43 (West 2006); 77 Pa. Cons. Stat. Ann. § 513(8)(viii).
47 See Ludwick, supra note 13.
48 See id.
49 See § 48-121(3).
694 	277 NebRASkA RePORTS

[6] For scheduled disabilities under § 48-121(3), a worker
is compensated for his or her loss of use of a body member;
loss of earning power is immaterial in determining compensa-
tion under § 48-121(3).50 And despite the obvious potential
for extended indemnity periods in gradual injury cases, the
Nebraska Legislature has not enacted separate accrual dates
or limitation periods for these types of claims. So insur-
ers’ indemnity concerns cannot be the basis of our decision.
The Legislature intended the Nebraska Workers’ Compensation
Act to provide benefits for employees injured on the job.51
Applying the act consistently with that legislative goal is our
only concern here.
[7] We are persuaded by the reasoning of those courts hold-
ing that noise-induced hearing loss is caused by repetitive
external trauma produced in the work environment. We also
believe that an occupational disease classification is inap-
propriate under our case law. Occupational hearing loss does
not result from exposure to a workplace substance. And noise
exposure is too common to be considered a condition pecu-
liar to Risor’s occupation or Nebraska boiler’s industry. We
conclude that a worker’s noise-induced hearing loss is a con-
dition resulting from the cumulative effects of work-related
trauma, so we test Risor’s claim under the statutory definition
of accident.
2. dAte of inJury for repetitive trAumA inJuries
Nebraska boiler contends that even if Risor’s hearing was an
accident under the workers’ compensation statute, the review
panel erred in affirming the trial judge’s finding that the date
of injury was October 19, 1993.
[8] The Nebraska Workers’ Compensation Act defines an
accident as “an unexpected or unforeseen injury happening
suddenly and violently, with or without human fault, and
50 See, Madlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005), cit-
ing Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977);
Rodriguez v. Monfort, Inc., 262 Neb. 800, 635 N.W.2d 439 (2001); Kraft
v. Paul Reed Constr. & Supply, 239 Neb. 257, 475 N.W.2d 513 (1991);
Sopher v. Nebraska P. P. Dist., 191 Neb. 402, 215 N.W.2d 92 (1974).
51 Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).
RISOR v. NebRASkA bOILeR 	695
Cite as 277 Neb. 679

producing at the time objective symptoms of an injury.”52
Under § 48-151(2), an injured worker must satisfy three ele-
ments to prove an injury is the result of an accident: (1) The
injury must be unexpected or unforeseen, (2) the accident must
happen suddenly and violently, and (3) the accident must pro-
duce at the time objective symptoms of injury.53
We have already addressed Nebraska boiler’s argument
regarding an unexpected or unforeseen injury, and it does not
argue that Risor failed to show objective symptoms of injury.
Therefore, we focus on the second element.
[9] Under § 48-151(2), “suddenly and violently” does not
mean instantaneously and with force; instead, the element is
satisfied if the injury occurs at an identifiable point in time,
requiring the employee to discontinue employment and seek
medical treatment.54 The time of an accident is sufficiently
definite if either the cause is reasonably limited in time or the
result materializes at an identifiable point.55
[10] An employee establishes an identifiable point in time
when a repetitive trauma injury occurs if the employee stops
work and seeks medical treatment.56 The law does not establish
a minimum time that an employee must discontinue work for
medical treatment to be eligible for benefits.57 The length of
time is not the controlling factor.58
Nebraska boiler does not dispute these rules. Instead, it con-
tends that Risor failed to produce “substantial evidence” that
he missed work on October 19, 1993, to seek medical treat-
ment.59 It contends that he contradicted himself on whether
he had missed work. Alternatively, it argues that Risor’s
injury occurred sometime in the 1980’s, when Nebraska boiler
52 § 48-151(2).
53 See Swoboda, supra note 17.
54 See id. (discussing rationales).
55 See id.
56 See Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001).
57 Id.
58 Id.
59 brief for appellant at 17.
696 	277 NebRASkA RePORTS

accommodated him at work for his hearing loss or when he
first had his hearing tested in 1988. Finally, it argues that
the 1993 date could not be the date of injury because Risor
failed to plead this date in his complaint as a possible date
of injury.
(a) evidence Sufficiently Supports
Date of Injury
[11,12] The date of an accident resulting in a compen-
sable injury presents a question of fact, which the trial
judge resolves.60 To recover under the Nebraska Workers’
Compensation Act, a claimant must prove by a preponderance
of the evidence that an accident or occupational disease arising
out of and occurring in the course of employment proximately
caused an injury which resulted in disability compensable
under the act.61
[13-15] When testing the trial judge’s findings of fact, we
consider the evidence in the light most favorable to the suc-
cessful party. We give the successful party the benefit of every
inference reasonably deducible from the evidence.62 As the
trier of fact, the trial judge determines the credibility of the
witnesses and the weight to give their testimony.63 And when a
witness makes contradictory statements, the resolution of that
contradiction presents a question of fact.64
We recognize that Risor initially stated that he had not
missed work to attend the 1993 referred medical examination.
Yet, in context with Risor’s other statements, the trial judge
could have reasonably concluded that Risor meant he had not
lost wages over the appointment. And Risor’s testimony on
cross-examination showed that he could not have attended the
60 See, Morris, supra note 13; Mendoza v. Pepsi Cola Bottling Co., 8 Neb.
App. 778, 603 N.W.2d 156 (1999).
61 See Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785
(2008). See, also, § 48-151(2).
62 Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
63 Id.
64 See, Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997); Stansbury v.
HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995).
RISOR v. NebRASkA bOILeR 	697
Cite as 277 Neb. 679

appointment in the half-hour time that Nebraska boiler allotted
him for his lunch break. The trial judge was not clearly wrong
in this factual finding.
(b) Risor’s 1988 Hearing examination
Was Not the Date of Injury
[16] Nebraska boiler argues that the trial judge should not
have treated Risor’s 1988 hearing test any differently than his
1993 test because both tests showed profound hearing loss. The
evidence, however, fails to show that Risor had missed work
for his hearing examination in 1988. Remember, an employee’s
claim for injury resulting from an accident is not compensable
until the employee discontinues work, even if for a brief time,
and seeks medical treatment.65
(c) Minor Accommodations Are Not a Job Change
[17] Relying on Owen v. American Hydraulics,66 Nebraska
boiler argues that its attempts to accommodate Risor’s hearing
loss in the 1980’s effected a discontinuance of employment
sufficient to prove Risor’s accident occurred much earlier. It
implicitly argues that his claim is therefore time barred. In
Owen, we implicitly recognized that a job transfer can con-
stitute a discontinuance of work that establishes the date of
injury. We affirmed the trial judge’s finding that the claimant’s
injury occurred when he was transferred to another posi-
tion requiring less strenuous activity after he was no longer
able to perform his duties. Here, however, Nebraska boiler
did not attempt to transfer Risor to a position away from the
plant’s noise.
(d) The Incorrect Date in Risor’s Complaint
Did Not Prejudice Nebraska boiler
Nebraska boiler contends that the trial judge was clearly
wrong in finding that October 19, 1993, was the date of injury
because he did not plead it. It argues that it could not have
anticipated this date when Risor never stopped working until
his retirement. It further argues that if it had known this date
65 See Morris, supra note 13, citing Vonderschmidt, supra note 56.
66 Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000).
698 	277 NebRASkA RePORTS

was in play, it would have conducted further investigation and
developed additional facts regarding events in 1993.
The record, however, shows that Nebraska boiler knew from
its own records that October 19, 1993, was a possible date
of injury. It had referred Risor to the 1993 hearing examina-
tion after Risor had completed a questionnaire in which he
responded that he had hearing loss and a noisy job. In addition,
Risor’s attorney had stated before beginning the trial that he
intended to present evidence to show that October 19, 1993,
was a possible date of injury. Nebraska boiler did not request a
continuance or object that the evidence was outside the plead-
ings. It clearly questioned Risor about this appointment and
presented evidence regarding the issue.
[18] Under Neb. Rev. Stat. § 48-168 (Cum. Supp. 2008), the
Nebraska Workers’ Compensation Court is not bound by for-
mal rules of procedure. And even our formal pleading rules do
not preclude an implicit amendment of pleadings to conform to
the evidence when the parties try the issues by consent.67 We
conclude that Nebraska boiler was sufficiently advised of the
issue it was required to defend against and that it did defend
against the 1993 date.68
The review panel did not err in affirming the trial judge’s
finding that Risor’s date of injury was October 19, 1993.
3. Workers’ compensAtion stAtutes do not require A
clAimAnt’s AWArd for A scHeduled disAbility to
be reduced by subsequently eArned WAges
Nebraska boiler argues that even if October 19, 1993, was
Risor’s date of injury, the trial judge should have credited it
for the wages he continued to earn until his retirement. It does
not argue that Risor’s award for a scheduled disability con-
stitutes an impermissible double recovery.69 Instead, it argues
that requiring it to pay permanent total disability benefits while
67 See Neb. Ct. R. Pldg. § 6-1115(b).
68 See Hayes v. A.M. Cohron, Inc., 224 Neb. 579, 400 N.W.2d 244 (1987),
disapproved on other grounds, Heiliger v. Walters & Heiliger Electric,
Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).
69 Madlock, supra note 50.
RISOR v. NebRASkA bOILeR 	699
Cite as 277 Neb. 679

Risor was working and receiving wages is grossly unfair. It
notes that a 1999 amendment to Neb. Rev. Stat. § 48-119
(Reissue 2004) now requires compensation to be paid from
“‘the date disability began,’” rather than “the date of injury.”70
And it argues that “disability” means the point when an injury
results in loss of earning power, so that Risor was not entitled
to benefits until he retired. Thus, it argues that the review
panel incorrectly relied on Hobza v. Seedorff Masonry, Inc.71
In Hobza, we concluded that compensation benefits were
payable from the date of injury under the pre-1999 version
of the statute. Nebraska boiler argues that Hobza is no lon-
ger controlling.
At the outset, we note that the statutes do not define “dis-
ability.” It is true that the Legislature amended § 48-119 in
1999. but that amendment is consistent with our decisions
implicitly or explicitly equating “date of injury” with the date
a disability begins.
[19,20] A worker has not suffered a compensable injury
until disability begins.72 And, as noted, except for scheduled
disabilities, “disability is defined in terms of employability
and earning capacity rather than in terms of loss of bodily
function.”73 In gradual injury cases, the date of injury serves
to mark the point in time when the injury rises to the level of
disability.74 but Nebraska boiler’s argument that Risor did not
suffer a loss of wages is immaterial to determining compensa-
tion for scheduled disabilities under § 48-121(3).
[21,22] The Legislature clearly intended to fix benefits for
loss of specific body members under subsection (3) without
regard to the worker’s ability to continue working in a par-
ticular occupation or industry.75 In other words, a worker’s
70 brief for appellant at 21. See 1999 Neb. Laws, L.b. 216.
71 See Hobza, supra note 3.
72 See Ludwick, supra note 13.
73 Id. at 894, 678 N.W.2d at 523.
74 See, e.g., Ludwick, supra note 13; Williams v. Dobberstein, 182 Neb. 862,
157 N.W.2d 776 (1968). See, also, 3 Larson & Larson, supra note 41.
75 Broderson v. Federal Chemical Co., 199 Neb. 278, 258 N.W.2d 137
(1977). See, also, cases cited at note 50.
700 	277 NebRASkA RePORTS

diminished earning power is conclusively presumed for inju-
ries resulting in scheduled disabilities.76 A worker is entitled
to compensation for a scheduled disability even if he or she
continues to work.77 Conversely, a worker is not entitled to an
award for loss of earning power when the injury is limited to
specific body members, unless some unusual or extraordinary
condition as to other members or parts of the body develops as
the result of injury.78
[23] Nebraska boiler points to no statute that gives an
employer a credit for wages paid to a worker who has suf-
fered a scheduled disability but continues to work. Nor is that
argument consistent with our case law. Thus, we conclude
that for scheduled disabilities caused by repetitive trauma,
the date disability begins is the same as the date of injury for
whole body impairments caused by repetitive trauma. That
date is when the employee discontinues work and seeks medi-
cal treatment, despite being paid wages while he continued to
work. The review panel did not err in concluding that Risor
was entitled to compensation for his scheduled disability from
October 19, 1993, despite being paid wages while he contin-
ued to work.
4. nebrAskA boiler HAd knoWledge of risor’s inJury
Nebraska boiler contends that the review panel erred in
determining that Risor gave timely notice of his injury under
§ 48-133. Under that section, a claimant cannot maintain
an action for compensation unless he or she has given the
employer written notice of the injury “as soon as practicable.”
but § 48-133 also contains an exception to the written notice
requirement: “Want of such written notice shall not be a bar to
proceedings under the Nebraska Workers’ Compensation Act,
if it be shown that the employer had notice or knowledge of
the injury.” The review panel affirmed the trial judge’s factual
76 See 4 Arthur Larson & Lex k. Larson, Larson’s Workers’ Compensation
Law § 86.02 (2008).
77 See id. See, also, Sopher, supra note 50.
78 See, e.g., Rodriguez, supra note 50; Fenster v. Clark Bros. Sanitation, 235
Neb. 336, 455 N.W.2d 169 (1990).
RISOR v. NebRASkA bOILeR 	701
Cite as 277 Neb. 679

finding that Nebraska boiler had notice or knew of Risor’s
hearing loss starting in the 1980’s when it accommodated his
hearing loss. Nebraska boiler argues that this conclusion was
wrong because Risor did not provide notice that his hearing
loss was work related until 2004.
[24-28] Under § 48-133, an employer’s notice or knowl-
edge of a worker’s injury is sufficient if a reasonable person
would conclude that the injury is potentially compensable
and that the employer should therefore investigate the mat-
ter further.79 When an employer’s foreman, supervisor, or
superintendent has knowledge of the employee’s injury, that
knowledge is imputed to the employer. knowledge imputed
to an employer can satisfy § 48-133’s notice requirement.80
And an employee is not required to give an opinion as to the
cause of an injury in order to satisfy the notice requirement
of § 48-133.81 Finally, the parties do not dispute the facts
concerning reporting and notice or when Nebraska boiler
accommodated Risor’s hearing loss. Thus, whether such facts
constitute sufficient notice to the employer under § 48-133
presents a question of law.82
In resolving this question of law, we note that the review
panel concluded that Nebraska boiler had notice of a poten-
tially compensable claim, which should have caused it to
investigate further. The review panel noted three relevant facts:
(1) Nebraska boiler had taken precautions to prevent the noise
level at its workplace from causing hearing loss; (2) its nurse
had referred Risor to a hearing specialist in 1993; and (3) it
knew the results of Risor’s evaluation. The review panel also
noted the trial judge’s finding that Risor’s hearing loss in the
1980’s was obvious and that Nebraska boiler had accommo-
dated it. Nebraska boiler does not dispute these facts. Thus, the
review panel did not err in deciding that Nebraska boiler had
sufficient notice that Risor’s hearing loss was potentially work
related and compensable.
79 See Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995).
80 See id.
81 See id.
82 See id.
702 	277 NebRASkA RePORTS

5. risor’s clAim WAs not bArred by tHe
stAtute of limitAtions
The review panel affirmed the trial judge’s determination
that the exception under § 48-144.04 applied to toll the statute
of limitations. Section 48-144.04, in relevant part, provides:
[W]here an employer, workers’ compensation insurer, or
risk management pool . . . has knowledge, of any injury
or death of an employee and fails, neglects, or refuses
to file a report thereof, the limitations in section 48-137
. . . shall not begin to run against the claim of the injured
employee . . . until such report shall have been furnished
as required by the compensation court.
[29] The review panel further determined that under both
§§ 48-144.04 and 48-133, the same test for knowledge applies.
That is, under § 48-144.04, the employer has sufficient knowl-
edge of an employee’s injury if a reasonable person would
conclude that an employee’s injury is potentially compensable
and that the employer should therefore investigate the matter
further. We agree.
For injuries set forth in § 48-144.01, the employer or
workers’ compensation insurer must file an injury report
with the Nebraska Workers’ Compensation Court within 10
days of the employer’s notice or knowledge of the injury.
It would be inconsistent to conclude that an employer had
sufficient knowledge of a compensable injury to excuse the
claimant’s written notice of injury but insufficient knowledge
to trigger the employer’s duty to file an injury report under
§ 48-144.01.
The review panel concluded that Nebraska boiler had suf-
ficient knowledge of Risor’s injury at least by 1993 but that it
failed to file an injury report as required under § 48-144.01.
but Nebraska boiler argues that § 48-144.01 could not toll
the statute of limitations. It contends that the statute of limita-
tions began to run sometime in the 1980’s when Risor knew or
should have known that he had a claim. It argues Risor knew
he had a hearing loss in the 1980’s and thought it was work
related. Section 48-137 provides: “In case of personal injury,
all claims for compensation shall be forever barred unless,
within two years after the accident, the parties shall have
RISOR v. NebRASkA bOILeR 	703
Cite as 277 Neb. 679

agreed upon the compensation . . . or . . . one of the parties
shall have filed a petition . . . .”
Nebraska boiler implicitly argues that we should apply the
same discovery rule83 to an original claim for benefits that we
have applied to a claim to modify an award. We have held that
the 2-year time limit under § 48-137 also applies to a proceed-
ing to modify an award under Neb. Rev. Stat. § 48-141 (Reissue
2004). In modification cases, we have held that a worker must
commence a proceeding within 2 years of the time that the
employee knows, or is chargeable with knowledge, that his or
her condition has materially changed and there is a substantial
increase in disability.
but as explained earlier, a claim for disability resulting
from repetitive trauma accrues when the employee discontinues
work and seeks medical treatment. So applying a discovery rule
against an employee in a repetitive trauma case could result in
the claim’s being barred before it accrues.84 Other courts have
noted the rule’s punitive effect. “Applying the discovery rule
to such an injury often works to the prejudice of an employee
who discovers symptoms of a repetitive trauma injury but con-
tinues to work.”85 And we have stated that “the statutory limita-
tion was not intended to commence until there was a claim on
which it could run.”86
but we acknowledge that there is a tension in our case law.
In some cases involving progressive injuries, we have held that
the statute of limitations is tolled unless the employee “‘knows
that an injury has occurred and that disability therefrom was
due to his employment.’”87 In contrast, in other cases, we have
applied a discovery rule that commences the statute of limita-
tions when the employee knew or should have known that an
83 See Frezell v. Iwersen, 231 Neb. 365, 436 N.W.2d 194 (1989).
84 See, e.g., Miniero v. City of New York, 15 Misc. 3d 432, 833 N.Y.S.2d 845
(2007).
85 Schurlknight, supra note 21, 352 S.C. at 178, 574 S.e.2d at 195.
86 Williams, supra note 74, 182 Neb. at 865, 157 N.W.2d at 779.
87 Novak v. Triangle Steel Co., 197 Neb. 783, 786, 251 N.W.2d 158, 160
(1977) (emphasis supplied). See, also, Williams, supra note 73.
704 	277 NebRASkA RePORTS

injury was work related.88 but we need not resolve this ten-
sion here.
even if we concluded that the noise in the plant was such
that Risor should have known his hearing loss was work
related, the same conclusion would apply to Nebraska boiler.
We agree with the trial judge that it was obvious to Nebraska
boiler that Risor had substantial hearing loss in the 1980’s. We
could not conclude that Risor should have known or discovered
that his injury was work related without also concluding that
Nebraska boiler could have filed an injury report anytime dur-
ing that period. We conclude that the review panel did not err
in determining that § 48-144.01 tolled the statute of limitations
from running against Risor’s claim.
6. our decision in R isoR i is tHe lAW of tHe cAse
regArding tWin city’s intervention
Nebraska boiler argues that the review panel incorrectly
determined that this court had addressed its arguments in
Risor I regarding Twin City’s right to participate in these
proceedings.
In Risor I, we held that an employer’s insurer is not a
necessary party in a workers’ compensation action brought
solely against the employer and that the workers’ compensation
statutes did not authorize postjudgment intervention. And we
rejected Twin City’s due process arguments that it was entitled
to notice and representation. We declined, however, to decide
whether the incorrect date of injury alleged in Risor’s plead-
ing presented a due process problem for Nebraska boiler. We
concluded that whether Nebraska boiler had been denied due
process by the alleged deficiency was a subject for the sub-
stantive appeal. We stated that Twin City was free to represent
Nebraska boiler on this issue in the substantive appeal but held
that it had failed to present a reason for intervention.
[30] Therefore, the only issue Risor I left open for the
substantive appeal was whether the date of injury alleged in
88 Maxey v. Fremont Department of Utilities, 220 Neb. 627, 371 N.W.2d 294
(1985); Ohnmacht v. Peter Kiewit Sons Co., 178 Neb. 741, 135 N.W.2d
237 (1965).
RISOR v. NebRASkA bOILeR 	705
Cite as 277 Neb. 679

Risor’s pleading presented a due process violation to Nebraska
boiler. Under the law-of-the-case doctrine, an appellate court’s
holdings on issues presented to it conclusively settle all mat-
ters ruled upon, either expressly or by necessary implication.89
Nebraska boiler has not specifically argued it was denied due
process. but we have determined that it was not prejudiced by
the date of injury pleaded because it had sufficient notice that
Risor would seek to prove October 19, 1993, was the date of
injury. Thus, the only remaining issue from Risor I is resolved
against Nebraska boiler.
VI. CONCLUSION
We conclude that a noise-induced hearing loss is a repeti-
tive trauma injury. Thus, it is an accident under the Nebraska
Workers’ Compensation Act. The review panel did not err in
affirming the trial judge’s finding that the date of injury was
October 19, 1993. The date of injury is the date disability
begins for scheduled disabilities resulting from gradual trauma.
Nebraska boiler was not entitled to a credit for wages it paid
to Risor after the date that he sustained a scheduled disability.
The review panel did not err in determining that Nebraska
boiler had sufficient notice that Risor’s hearing loss was work
related and potentially compensable. And, under these facts,
the review panel correctly affirmed the trial judge’s determina-
tion that § 48-144.04 tolled the statute of limitations. Finally,
under the law-of-the-case doctrine, the review panel correctly
declined to revisit arguments regarding Twin City’s participa-
tion in this action.
A ffirmed.
gerrArd, J., participating on briefs.
89 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
706 	277 NebRASkA RePORTS