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Longe v. Hawkins Construction Co.3/15/2005
. Brown provided Longe with new restrictions limiting the hours he could work and recommended that Longe not work more than 2 days in a row. Longe testified that after he received these new restrictions, Hawkins sent him to Valley, Nebraska, to operate a water truck so that he did not have to do heavy lifting. Thus, Longe clearly sought medical treatment from Dr. Brown for his neck on September 18. And, because he was no longer able to perform his regular work of driving a cement truck after such date, the evidence shows that he had discontinued or interrupted his employment, as required for the "suddenly and violently" test. See Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001) (injury must result in disability, and disability must be such that employee can no longer perform work required). Because the Nebraska Workers' Compensation Act allows for payment of temporary partial disability, the complete inability to perform work is not required to constitute the identifiable point in time which satisfies the "suddenly and violently" requirement of Vonderschmidt v. Sur-Gro, supra. Therefore, the identifiable point in time of Longe's neck injury was September 18, 2000, satisfying the "suddenly and violently" element of the accident test which, through Nebraska Supreme Court decisions, has become part of the law concerning the compensability of repetitive trauma.
The record supports the trial judge's conclusion that Longe experienced the sudden manifestation of his neck injury about August 30, 2000. However, for purposes of repetitive trauma analysis, the required identifiable point in time was September 18 when there was an onset of disability, but Longe did not become entitled to disability payments until March 30, 2001. Therefore, in summary, we find evidence supporting that Longe suffered repetitive trauma from his work which satisfies the requirements of an "accident," and we find that there is ample evidence of a causal relationship between his repetitive trauma and his neck condition. Because Longe did not become entitled to temporary disability benefits until March 30, 2001--a finding of the trial judge which is unchallenged by either party--the trial judge's use of August 30, 2000, instead of September 18 is of no consequence.
Notice.
Hawkins asserts that Longe failed to provide timely notice of the accident and injury as required by Neb. Rev. Stat. § 48-133 (Reissue 2004). Longe admitted that he did not provide written notice of his injury. However, § 48-133 provides that " ant 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 trial judge found that Longe "provided credible testimony that he notified a supervisor of his injury at the Eppley Airfield job site" and found that Longe notified a medical case manager retained by Hawkins. At trial, Longe testified that he told both his supervisor at the time and his case manager about his neck pain. Knowledge of an employee's injury gained by the employee's foreman, supervisor, or superintendent in a representative capacity for an employer is knowledge imputed to the employer and is sufficient to satisfy the notice requirement of § 48-133.
As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Mendoza v. Pepsi Cola Bottling Co., 8 Neb. App. 778, 603 N.W.2d 156 (1999). Therefore, the trial court did not clearly err in finding that Hawkins had knowledge of the injury , because Longe notified his supervisor.
Affirmed.
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