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Picard v. Pinkerton Security and Investigation Services6/28/2005
cal issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. Denny Wiekhorst Equip. v. Tri-State Outdoor Media, 269 Neb. 354, 693 N.W.2d 506 (2005).
Picard's assertion that occupational disease does not require "violence to the physical structure of the body" is without merit. Under the Nebraska Workers' Compensation Act, an "occupational disease" is a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed. Ludwick v. TriWest Healthcare Alliance, supra. See § 48-151(3). Section 48-151(4) provides in part:
Injury and personal injuries mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. The terms include disablement resulting from occupational disease arising out of and in the course of the employment in which the employee was engaged and which was contracted in such employment.
Accord Ludwick v. TriWest Healthcare Alliance, supra.
Picard essentially interprets the second sentence of § 48-151(4) as implying that "disablement resulting from occupational disease" need not involve violence to the physical structure of the body. We disagree. The Nebraska Supreme Court has held that under the Nebraska Workers' Compensation Act, an injury has occurred as the result of an occupational disease when violence has been done to the physical structure of the body and a disability has resulted. Ludwick v. TriWest Healthcare Alliance, supra.
In Picard's second petition, he alleges disability as result of occupational disease rather than accident; nonetheless, Picard is still required to prove injury . Under the Nebraska Workers' Compensation Act, " hen personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment," the employee is entitled to compensation unless the employee was willfully negligent at the time of receiving the injury. (Emphasis supplied.) § 48-101. This court previously affirmed the trial court's determination that Picard did not suffer violence to the physical structure of his body and thus did not suffer an injury. See Picard I. In Picard I, we upheld a final judgment on the merits rendered by a court of competent jurisdiction in a case involving the same parties to the present case. In Picard I, the parties had the opportunity to fully and fairly litigate the identical issue that is essential to Picard's present claim for occupational disease, namely whether Picard suffered a personal injury. That issue was decided against Picard in Picard I. Accordingly, Picard's current claim is barred by the doctrines of res judicata and collateral estoppel. We affirm the review panel's affirmance of the trial court's order granting summary judgment in Pinkerton's favor.
CONCLUSION
The review panel did not err in affirming the trial court's order granting Pinkerton's motion for summary judgment.
Affirmed.
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