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316 Nebraska Reports

THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

Christine Thiele, appellant, v. Select Medical 

Corporation, doing business as Select 

Specialty Hospital, and Liberty 

Insurance, Inc., appellees.

___ N.W.3d ___

Filed April 19, 2024. No. S-23-022.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Workers’ Compensation: Proof. To show a compensable injury and 

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 caused an injury which resulted in disability compensable under 

the act.

4. ____: ____. To establish a claim for occupational disease under the 

Nebraska Workers’ Compensation Act, a worker must show that the 

injury was a disease resulting from causes and conditions characteristic 

of and peculiar to the particular trade, occupation, process, or employment in which the worker was employed, and the disease is other than 

an ordinary disease of life to which the general public is exposed.

5. Workers’ Compensation. To be compensable, Neb. Rev. Stat. 

§ 48-151(3) (Reissue 2021) does not require that an occupational disease be one that exists exclusively in the particular employment. Rather, 

the causes and conditions of the employment must result in a hazard that 

distinguishes it in character from employment generally.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/10/2024 06:09 PM CDT
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

6. ____. Although the same diagnosis is also common in the community, 

a work-related injury may be a compensable occupational disease 

under Neb. Rev. Stat. 48-151(3) (Reissue 2021) because the worker’s 

particular trade, occupation, process, or employment has characteristics that greatly raised the worker’s risk and the injury is a natural 

result of that greater risk; that is, it would not be an ordinary disease 

of life for that worker.

Appeal from the Workers’ Compensation Court: Daniel 

R. Fridrich, Judge. Reversed and remanded for further 

proceedings.

Douglas R. Novotny, of Novotny Law, L.L.C., for appellant.

Robert Kinney-Walker, of Law Offices of James W. Nubel, 

for appellee Select Medical Corporation.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

Christine Thiele, appellant, began feeling ill at work at the 

outset of the COVID-19 pandemic on April 6, 2020, and soon 

tested positive for a COVID-19 infection. As a result, Thiele 

developed severe and disabling medical issues from the 

effects of the COVID-19 virus. At the time of these events, 

Thiele was employed as a nurse liaison at Select Specialty 

Hospital (Select), a critical care recovery hospital located 

adjacent to Bergan Mercy Hospital in Omaha, Nebraska. 

Thiele petitioned for workers’ compensation benefits, alleging that her COVID-19 infection was an injury that arose 

out of and in the course of employment under the Nebraska 

Workers’ Compensation Act, Neb. Rev. Stat. §§ 48-101 to 

48-1,117 (Reissue 2021). Thiele specifically claimed she suffered an “occupational disease” as defined in § 48-151(3). 

Select and Liberty Insurance, Inc., appellees, moved for 

summary judgment. The Nebraska Workers’ Compensation 

Court granted appellees’ motion for summary judgment and 
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

dismissed Thiele’s petition. Thiele appeals. Because there is 

a genuine issue of material fact as to whether in April 2020 

Thiele suffered a compensable occupational disease or a noncompensable disease of ordinary life, we reverse the order 

and remand the cause for further proceedings.

II. STATEMENT OF FACTS

1. Thiele’s Employment With Select

This case was decided on summary judgment, and the 

facts recited below are expressed in the light most favorable 

to Thiele and should not be construed as binding on remand. 

Thiele was employed as a nurse liaison by Select, which 

operates a critical care recovery hospital adjacent to Bergan 

Mercy Hospital in Omaha. In March 2020, at the outset of 

the COVID-19 pandemic, Select designated Thiele, who normally worked remotely, as an essential health care worker 

and required her to report to the hospital for work. Thiele did 

not have a designated workspace, so she worked in various 

spaces, including the first floor breakroom, boardroom, lobby, 

or breakrooms on patient floors. She worked in close quarters 

with three or four other coworkers and was also in “constant 

contact” with other nurses, doctors, and medical personnel, as 

well as other individuals who were in contact with employees, 

patients, and visitors at Select and Bergan Mercy Hospital. 

During the week of March 30 to April 3, 2020, she delivered 

doughnuts to Bergan Mercy Hospital’s intensive care unit and 

delivered other items to hospital staff.

Starting on March 19, 2020, Omaha began experiencing 

official lockdowns or directed health measures, and individuals could go to very few locations. Under these directed health 

measures designed to minimize inperson interaction, gatherings were prohibited and schools, daycare facilities, gymnasiums, salons, libraries, theaters, and any other confined indoor 

or outdoor spaces were closed. Restaurants were restricted to 

carry-out, drive-through, and delivery services.
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

The Nebraska Department of Health and Human Services 

recommended that health care workers involved in the care 

of patients with known or suspected COVID-19 wear either 

respirators or face masks. Select denied Thiele’s requests to 

wear a face mask. At Select at that time, face masks were 

not worn by hospital employees, patients, visitors, or other 

individuals unless they had direct contact with patients. Select 

acknowledged that face masks arrived or became available at 

the hospital on April 3, 2020, but they were not distributed to 

Thiele or the employees with whom she worked.

From March 16 to April 6, 2020, other than going to work 

or conducting duties for work, Thiele stayed at home. She 

avoided contact with friends and family outside her household 

and utilized grocery delivery services. The two other individuals in Thiele’s home resided in the basement, and Thiele had 

little or no direct contact with them. Thiele was the only person at her residence who contracted a COVID-19 infection in 

March or April 2020.

On April 6, 2020, Thiele began feeling ill and left work 

early. On April 10, she received a positive test result confirming that she had a COVID-19 infection. Thiele was thereafter 

diagnosed with continuing severe medical issues and was 

rendered unable to work. She now receives Social Security 

disability benefits.

The Nebraska Department of Health and Human Services 

had reported only 412 COVID-19 cases to date in Nebraska 

on April 6, 2020. According to the 2020 census information 

from the U.S. Census Bureau, Nebraska’s total population was 

1,961,504 in 2020.

2. Thiele’s Workers’ Compensation 

Claim and Evidence

On March 7, 2022, Thiele filed a petition in the Nebraska 

Workers’ Compensation Court in which she alleged that she 

suffered a compensable injury stemming from a COVID19 infection she had acquired in the course and scope of 

her employment by Select. Appellees moved for summary 
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

judgment and requested dismissal of Thiele’s petition on the 

basis that a COVID-19 “infection and related sequalae are not 

compensable injuries as a matter of law.” Thiele contended 

that under the conditions of her employment as a nurse liaison 

at a critical care hospital during March and April 2020, her 

COVID-19 infection was a compensable occupational disease. 

The compensation court conducted a hearing, and in addition to evidence from treating physicians, the court admitted 

into evidence two expert opinions regarding COVID-19 and 

materials regarding the pandemic. The court also received 

statements of undisputed facts submitted by the parties and a 

statement of disputed facts submitted by Thiele, and the trial 

judge synthesized these as undisputed facts.

(a) Treating Physicians

Two of Thiele’s treating physicians, Drs. Marco A. GonzalezCastellon and Karen Wilson, opined that more likely than not, 

Thiele contracted a COVID-19 infection during the course of 

her employment with Select, that she was exposed to a higher 

risk of contracting COVID-19 at her employment than other 

employments or than the general public, and that Select’s 

denial of a face mask or other personal protective equipment at 

her workplace exposed Thiele to a hazard and a higher risk in 

relation to other employment.

(b) Expert Opinions

(i) Dr. Sehr Haroon

Thiele offered an expert opinion report from Dr. Sehr 

Haroon, an internal medicine physician at the Nebraska 

Medical Center, prepared in 2022. Dr. Haroon opined that, 

based on reports she reviewed from Thiele’s treating physicians, she agreed that Thiele more likely than not contracted 

COVID-19 during the course of her employment with Select. 

Dr. Haroon explained that because COVID-19 could spread 

through inhalation of large airborne droplets from someone 

shedding the virus in the same space, Thiele’s infection in 

April 2020 was consistent with the history provided by Thiele 
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

of using shared workrooms with frontline health care workers 

at a hospital without wearing a face mask.

Regarding the prevalence of COVID-19 in April 2020, Dr. 

Haroon explained that the COVID-19 pandemic was in a different situation from the present, because the virus was not 

“in the community” as it is now. She explained that “[a]t that 

time, [COVID-19] was a more virulent variant which carried 

with it risks of pulmonary involvement and death, vaccines 

were not available, and treatment options we now rely on were 

not yet known.” She cited and attached two academic articles 

discussing that in the early months of the pandemic before the 

benefits of herd immunity, vaccinations, and milder variants, 

frontline health care workers had an increased risk of contracting a COVID-19 infection and experiencing a severe outcome 

than the general communities in which they lived.

Dr. Haroon opined that when Thiele contracted her COVID19 infection, inappropriate or inadequate personal protective 

equipment, inadequate workplace policies about mitigating 

COVID-19 spread, and inadequate screening of patients upon 

admission to the hospital all contributed to the spread of disease and preventable morbidity in health care workers. In particular, Dr. Haroon stated that as part of Thiele’s employment, 

Thiele was exposed to the COVID-19 hazard and had “a higher 

risk of contracting [COVID-19] in relation to other employments and the general public.”

(ii) Dr. Todd Sauer

Appellees offered the expert opinion of Dr. Todd Sauer. Dr. 

Sauer is a physician board certified in family medicine with 

a certificate of added qualification in hospice and palliative 

care. In his July 2022 letter, Dr. Sauer stated that “[COVID19] SARS-CoV-2” virus, like other respiratory viruses, is 

easily transmitted from person to person and therefore easily 

transmitted throughout communities. He opined that “[a]t this 

point” in 2022, it is an ordinary disease of life to which the 

general public is exposed and will continue to be exposed in 
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

the years ahead. He cited a report by Johns Hopkins University 

that as of July 6, 2022, there were 88,066,096 cases of 

COVID-19 in the United States, and compared the incidence to 

influenza, which he said resulted variously in 9 to 41 million 

illnesses annually from 2010 to 2020.

(c) Undisputed Material Facts

The parties submitted annotated statements of facts to the 

compensation court pursuant to Workers’ Comp. Ct. R. of 

Proc. 3(E) (2022). In its ruling, the compensation court consolidated facts that it considered undisputed, including:

12. According to [Drs.] Haroon and . . . GonzalezCastellon, [Thiele] had a higher risk of contracting 

COVID-19 due to her employer’s refusal to allow her to 

wear a mask. . . .

13. Both doctors also agree that [Thiele] had an 

increased risk of contracting COVID-19 compared to 

other employees in other employment fields or the general public. . . .

. . . .

15. On April 6, 2020, Nebraska had a total of 412 cases 

of COVID-19. . . .

. . . .

18. Drs. Haroon and Gonzalez-Castellon opine that it is 

more probable than not that [Thiele] contracted COVID19 at work. . . .

. . . .

27. Early in the pandemic, healthcare workers had an 

increased risk of contracting COVID-19 compared to the 

general population. . . .

. . . .

33. At this point, most people in the United States have 

been exposed to COVID-19. . . .

34. COVID-19 is an ordinary disease of life to which 

the general public is exposed and will continue to be 

exposed in the years to come.
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

3. Compensation Court Order

The compensation court sustained appellees’ motion for 

summary judgment and dismissed Thiele’s petition. The court 

framed its ruling around § 48-151(3), which describes compensable “[o]ccupational disease” and excludes therefrom noncompensable “ordinary diseases of life.” Occupational disease 

is defined in § 48-151(3) as follows: “Occupational disease 

means only 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.”

In its December 13, 2022, order, the court acknowledged 

that COVID-19 is more prevalent in the health care field. 

The compensation court order generally repeats paragraph 

27 of the undisputed facts, which states: “Early in the pandemic healthcare workers had an increased risk of contracting 

COVID-19 compared to the general population.” The court 

nevertheless reasoned that to assess whether Thiele had an 

occupational disease in April 2020, it would refer to the incidence of COVID-19 in the community at the time of the hearing in 2022. Based on this reasoning, the court stated that “it 

is a disease of ordinary life.” The court determined that, given 

the nature of COVID-19 incidence now, Thiele’s infection 

caught at work at the beginning of the pandemic in 2020 was 

not an “occupational disease” as defined by § 48-151(3). The 

court sustained appellees’ motion for summary judgment and 

dismissed Thiele’s petition.

Thiele appeals.

III. ASSIGNMENT OF ERROR

 Thiele assigns that the compensation court erred when it 

determined that her COVID-19 infection, which she contracted 

while working for Select at the beginning of the pandemic in 

2020, was not an occupational disease and granted summary 

judgment in favor of appellees.
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

IV. STANDARDS OF REVIEW

[1] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as to 

the ultimate inferences that may be drawn from the facts and 

that the moving party is entitled to judgment as a matter of law. 

Dutcher v. Nebraska Dept. of Corr. Servs., 312 Neb. 405, 979 

N.W.2d 245 (2022).

[2] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. Id.

V. ANALYSIS

In this appeal, Thiele contends that the COVID-19 infection 

she contracted in early April 2020 is compensable as an occupational disease under the Nebraska Workers’ Compensation 

Act and argues that her workers’ compensation petition should 

not have been dismissed in summary judgment proceedings. 

The parties agree that, in this case decided on summary judgment, Thiele receives the benefit of all reasonable inferences 

deducible from the evidence, and they also agree, for the 

purposes of this motion, that Thiele contracted her COVID19 infection while working for Select. The issue before us 

is whether the compensation court erred when it reasoned 

that because COVID-19 is now a disease of ordinary life, it 

could not have been an occupational disease in April 2020. 

As we explain below, the issue of whether Thiele suffered 

an occupational disease in April 2020 should be assessed by 

reference to whether her COVID-19 infection was a disease 

of ordinary life in April 2020 and not at the time of the hearing in November 2022. We believe the focus of the analysis 

should be on 2020, and the court’s reasoning focusing on 2022 

was error. Giving the inferences from the evidence in favor 

of Thiele as we must, there is a material question of fact as 

to whether in April 2020, under the applicable jurisprudence 
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

pertaining to § 48-151(3), Thiele’s COVID-19 infection was 

compensable as an occupational disease or was noncompensable as a disease of ordinary life. Accordingly, we reverse the 

order and remand the cause for further proceedings.

1. Legal Framework for 

Occupational Diseases

[3] To show a compensable injury and 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 caused an injury which resulted in disability 

compensable under the act. See, § 48-101; Picard v. P & C 

Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

We are aware of COVID-19 workers’ compensation cases 

analyzing whether becoming infected with COVID-19 was an 

“accident.” See, Western Millwork v. Indus. Com’n of Arizona, 

256 Ariz. 177, 536 P.3d 305 (Ariz. App. 2023); Pierre v. ABF 

Freight, 211 A.D.3d 1284, 180 N.Y.S.3d 337 (2022) (treating 

COVID-19 infections as accidental injury where evidence 

showed claimant contracted COVID-19 in course of employment). However, in this case, the compensation court and 

this court have been asked to consider only whether Thiele’s 

injury was caused by an occupational disease. We therefore 

limit our analysis accordingly.

Occupational disease is defined in § 48-151(3). It means 

“only 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.” Id.

[4] To establish a claim for occupational disease under the 

Nebraska Workers’ Compensation Act, a worker must show 

that the injury was a disease resulting from causes and conditions characteristic of and peculiar to the particular trade, 

occupation, process, or employment in which the worker 

was employed, and the disease is other than an ordinary 

disease of life to which the general public is exposed. See, 
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Cite as 316 Neb. 338

§ 48-151(3); Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 

792, 135 N.W.2d 470 (1965).

[5] To be compensable, the statute does not require that 

an occupational disease be one that exists exclusively in the 

particular employment. See Ritter v. Hawkeye-Security Ins. 

Co., supra. Rather, the causes and conditions of the employment referenced in the statute must result in a hazard that 

distinguishes it in character from employment generally. See, 

Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 

(2009); Ritter v. Hawkeye-Security Ins. Co., supra. It has been 

observed that “whether a condition or disease is an ordinary 

disease of life is essentially a medical issue to be decided 

by the trier of fact based on the evidence presented.” Knott 

v. Blue Bell, Inc., 7 Va. App. 335, 338, 373 S.E.2d 481, 483 

(1988). We agree that under the language of § 48-151(3), 

it will generally be a factual issue for the trier of fact to 

determine after trial whether a worker has suffered an injury 

from an occupational disease or an ordinary disease of life 

to which the general public is exposed. In this regard, on the 

question of a worker’s occupational disease, the Nebraska 

Workers’ Compensation Court acts as the trier of fact to determine which, if any, expert witnesses to believe. See Ludwick 

v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 

517 (2004).

As has been observed in a treatise on workers’ compensation law: “If the [condition of] employment is attended with 

unusual germs, poisons, chemicals, fumes, dusts, spores, or 

similar conditions,” it is unlikely to be the result of an “ordinary disease,” as that term is used in statutes. 4 Arthur Larson 

et al., Larson’s Workers’ Compensation Law § 52.03[3][a] at 

52-11 (2023). Professor Larson’s treatise also observes that 

where familiar harmful elements are present in unusual degree 

in the conditions of employment, the contracted disease is 

ordinarily distinguishable from ordinary diseases of life. See 

id., § 52.03[3][b].
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THIELE V. SELECT MED. CORP.

Cite as 316 Neb. 338

[6] In applying § 48-151(3), we have determined that, 

although the same diagnosis is also common in the community, 

a work-related injury may be a compensable occupational disease because the worker’s particular trade, occupation, process, or employment has characteristics that greatly raised the 

worker’s risk and the injury is a natural result of that greater 

risk; that is, notwithstanding the existence of the disease or 

condition elsewhere, for purposes of § 48-151(3), it would not 

be an ordinary disease of life for that worker. See, Ludwick v. 

TriWest Healthcare Alliance, supra (determining that surgical 

nurse who developed hypersensitivity to latex used in examination gloves suffered occupational disease); Osteen v. A. C. 

and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981) (determining that asbestos worker who contracted peritoneal mesothelioma suffered occupational disease); Ritter v. Hawkeye-Security 

Ins. Co., supra (determining that dishwasher who developed 

contact dermatitis after exposures at work to cleaners suffered 

occupational disease); Riggs v. Gooch Milling & Elevator Co., 

173 Neb. 70, 112 N.W.2d 531 (1961) (determining that grain 

elevator employee who developed emphysema suffered occupational disease); Hauff v. Kimball, 163 Neb. 55, 77 N.W.2d 

683 (1956) (determining that granite cutter who developed 

pneumoconiosis silicosis after exposures to silica sand suffered occupational disease).

Diseases that exist in the larger population, such as tuberculosis and malaria, can be considered occupational diseases. 

Focusing on infectious disease, courts have found numerous 

conditions in workplaces support the award of compensation as occupational diseases, especially in hospital or intimate nursing settings: hepatitis (Jeannette Dist. Memorial 

Hosp. v. W.C.A.B., 668 A.2d 249 (Pa. Commw. 1995), Hansen 

v. Gordon, 221 Conn. 29, 602 A.2d 560 (1992), Sacred 

Heart Med. Ctr. v. Dept. of Labor, Etc., 92 Wash. 631, 600 

P.2d 1015 (1979), Booker v. Medical Center, 297 N.C. 458, 

256 S.E.2d 189 (1979), and Matter of Esposito v. N. Y. S. 

Willowbrook State School, 46 A.D.2d 969, 362 N.Y.S.2d 54 
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(1974)); tuberculosis (Russell v. Camden Community Hospital, 

359 A.2d 607 (Me. 1976), Matter of Pogue v. Crouse Irving 

Hosp., 281 A.D. 931, 119 N.Y.S.2d 842 (1953), Board of 

National Missions v. Alaska Industrial Bd., 116 F. Supp. 625 

(D. Alaska 1953), and Matter of Quallenberg v. Union Health 

Center, 280 A.D. 1029, 117 N.Y.S.2d 24 (1952)); malaria 

(McCarty v. Delta Pride, 247 Ga. App. 734, 545 S.E.2d 117 

(2001)); herpetic whitlow (Fox v. Newberry County Memorial 

Hosp., 319 S.C. 278, 461 S.E.2d 392 (1995)); Neisseria 

meningitides (Omron Electronics v. Workers’ Compensation, 

2014 IL App (1st) 130766WC, 21 N.E.3d 1245, 387 Ill. Dec. 

74 (2014)). Diseases not ordinarily transmissible between 

humans have also been found to be occupational diseases. See 

Montgomery v. Industrial Com’n of Arizona, 173 Ariz. 106, 

840 P.2d 282 (Ariz. App. 1992) (determining lyme disease is 

occupational disease). It has been observed that the heightened 

risk of the workplace provides the nexus between the disease 

and employment and makes the diseases appropriate subjects 

for an award of workers’ compensation. Booker v. Medical 

Ctr., supra.

2. Genuine Issues of Material Fact as to Whether 

Thiele’s COVID-19 Infection Was an 

Occupational Disease in April 2020

Thiele claims that her COVID-19 infection contracted in 

April 2020 was characteristic of and peculiar to her employment as a nurse liaison whose duties included working in a 

critical care hospital and an intensive care unit where she was 

at a heightened risk of disease. Thiele claims her injury was 

an occupational disease under § 48-151(3). As we explain 

below, on this record, there is no absolute legal impediment to Thiele’s request for compensation due to COVID19 as an occupational disease in April 2020. See Meeks v. 

Opp Health and Rehabilitation, LLC, No. CL-2023-0239, 

2024 WL 356481 at *5 (Ala. Civ. App. Jan. 31, 2024) (in 

case involving occupational disease, stating that “we are not 
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prepared to hold that COVID-19 is not compensable under the 

Act as a matter of law”).

In its order, the court determined that in 2022, the COVID19 virus “is anywhere people are” and “it is a disease of ordinary life,” and that therefore, recovery for Thiele’s injury suffered in 2020 is precluded. We believe the court’s reliance on 

the situation in 2022 is flawed, its reasoning is erroneous, and 

reversal of its order is required.

There seems to be no dispute for purposes of summary 

judgment that Thiele contracted COVID-19 at her place of 

employment with Select during the March and April 2020 

period. Whether causation is established on remand, we note 

that Professor Larson’s treatise indicates that health care workers working on “the front lines of the pandemic” could expect 

to readily prove the causal connection between contraction 

of COVID-19 and the workplace. See 4 Arthur Larson et al., 

Larson’s Workers’ Compensation Law, § 51.06[2] at 51-14 

(2023). Because we are reviewing an order made on summary 

judgment, we determine that, taking the inferences in favor 

of Thiele, the record, including undisputed facts, shows that 

Thiele suffered an injury in the course of employment and that 

her job carried higher risks compared to employment generally in the period of March and April 2020. Accordingly, at 

this stage, we do not comment further on the foregoing elements in this analysis, nor do we comment on whether they 

can be established by evidence in further proceedings upon 

remand. Thus, for purposes of this summary judgment analysis, wherein certain elements are treated as undisputed, the 

issue of whether COVID-19 was an ordinary disease of life in 

the period of March and April 2020 remains for our consideration. As we explain below, because the law permits an award 

of compensation for occupational disease due to a brief period 

of exposure, compensability, including the issue of whether 

the disease is one of ordinary life, should be judged at the 

period of exposure.
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Although the relevance of “time-definiteness” as used in the 

cases to distinguish between accident and occupational disease 

may have been diminished by jurisprudential developments, 

time is still relevant in analyzing occupational disease claims. 

See 4 Larson et al., supra, § 52.03[1] at 52-5. E.g., Morris v. 

Nebraska Health System, 266 Neb. 285, 664 N.W.2d 436 (2003) 

(stating worker exposed to latex who suffered aggravation of 

her preexisting latex allergy had occupational disease, although 

she worked for the employer for only 5 months); Hull v. Aetna 

Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995) (examining 

causal conditions or contributory exposure of worker’s disease 

at points in time at successive employers); Osteen v. A. C. and 

S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981) (discussing 

whether successive employers exposed worker to asbestos). 

As we read § 48-151(3), to be compensable as an occupational 

disease, a claimant must demonstrate that the disease stemmed 

from an identifiable period of time, and it logically follows 

that the claimant must establish that the exposure was not an 

ordinary disease of life during that same time period as ordinary disease of life is used in the statute.

The COVID-19 jurisprudence demonstrates that in cases 

claiming occupational disease, the proper focus is on the 

period of exposure prior to contraction or onset of symptoms 

to determine whether the illness was an ordinary disease of 

life at those times. See, e.g., Aungst v. Family Dollar, 221 

A.D.3d 1222, 1225, 199 N.Y.S.3d 291, 295 (2023) (stating 

that where worker contracted COVID-19 in April 2020, claim 

focused on the “relevant time period prior to contracting 

COVID-19”); Employer: Long Island DDSO, No. G233 5526, 

2022 WL 594590 at *6 (N.Y. Work Comp. Bd. Feb. 16, 2022) 

(stating that where health care worker’s onset of COVID-19 

was April 6, 2020, record regarding exposure demonstrated 

requisite “events in time and space”); Employer: Manhattan 

Psychiatric Center, Nos. G281 3814, G280 2169, 2021 WL 

5748736 (N.Y. Work Comp. Bd. Nov. 29, 2021) (same: health 

care worker with COVID-19 onset on April 10, 2020).
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Courts have indicated that in COVID-19 cases, the factual 

focus for an ordinary disease of life analysis is at the time of 

onset, rather than in subsequent years. See Taylor v. Posey, No. 

1042-22-4, 2023 WL 5021240 at *5 (Va. App. Aug. 8, 2023) 

(where worker contracted COVID-19 in April 2020, rejecting 

employer’s “categorical approach to COVID-19” as a mere 

ordinary disease of life and “instructs courts to undertake a 

fact-specific analysis”); Fowler v. Perdue Farm, Inc., No. CV 

K21A-01-002 NEP, 2022 WL 807327 (Del. Super. Mar. 16, 

2022) (rejecting relevance of speculation that COVID-19 had 

spread to millions of Americans at time of court order in 2022, 

where worker contracted COVID-19 in March 2020).

The evidence in the record with regard to COVID-19 in 

March and April 2020 has been described above. Thiele’s 

expert stated that at the time Thiele contracted COVID-19, 

there were only 412 cases in Nebraska; the cases were caused 

by a more virulent and deadly strain; Thiele worked in close 

contact with other health care workers and was prevented 

from wearing a face mask at work; and COVID-19 has 

mutated into milder and more widespread variants. Viewing 

the evidence in the light most favorable to Thiele, we determine it showed, as the compensation court noted in its order, 

that “early on in the pandemic, healthcare workers were more 

likely to catch COVID-19,” and we can find no evidence to 

the contrary.

Thiele’s expert witness, Dr. Haroon, stated that COVID-19 

would present different risks to the community in 2022 than it 

did in early 2020. She opined that in 2020, “[h]ealthcare workers . . . had increased risk of covid [compared to] the general 

population early on in the pandemic, given their profession,” 

and that “as the pandemic progressed, the virus mutated into 

milder variants, and vaccinations aided with herd immunity as 

well. This led to the virus being able to be found in the community, as [appellees’ expert] Dr. Sauer pointed out.”

The report of appellees’ expert, Dr. Sauer, did not speak to 

the particular conditions of Thiele’s employment with Select 
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in March and April 2020 as compared to employment generally. Although he indicated that COVID-19 was spreading, 

Dr. Sauer did not assert that Thiele’s COVID-19 infection 

in 2020 was an ordinary disease of life to which the general 

public was already exposed in March and April 2020.

Viewing the evidence in the light most favorable to Thiele, 

we determine it could be construed that her particular work 

in early 2020 as a health care worker carried a higher risk 

of contracting COVID-19 than other employment and that 

she was more likely to suffer a serious infection because the 

early strain of COVID-19 was more virulent and resulted in 

more complications than later strains. Without repeating the 

complete record, there was evidence that the virus was rare in 

Nebraska in early April 2020 when Thiele became ill, and sick 

individuals were instructed to seek care at a hospital, such as 

Thiele’s workplace. Knowledge gaps in policies and regarding 

personal protective equipment for nurses increased the risks 

for hospital workers at Select, and neither Thiele nor most of 

her coworkers were permitted to wear face masks as protection 

from the airborne droplets that transmit COVID-19.

As we have explained above, an occupational disease need 

not be of the type that is exclusive to the worker’s employment, but the unique condition of the employment must result 

in a hazard that distinguishes it in character from employment 

generally. See, Jordan v. Morrill County, 258 Neb. 380, 603 

N.W.2d 411 (1999); Ritter v. Hawkeye-Security Ins. Co., 178 

Neb. 792, 135 N.W.2d 470 (1965). Because there is a genuine 

issue of material fact as to whether Thiele’s COVID-19 infection contracted in early 2020 was an occupational disease or 

a disease of ordinary life, the compensation court erred when 

it granted summary judgment in favor of appellees.

VI. CONCLUSION

The compensation court erred when it reasoned that given 

the prevalence of COVID-19 in 2022, Thiele’s COVID-19 

infection contracted through her work at hospital facilities in 
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March and early April 2020 was an ordinary disease of life 

under § 48-151(3) and not compensable. Viewing the evidence in a light most favorable to Thiele and giving her the 

benefit of all reasonable inferences deducible from the evidence presented at the summary judgment hearing, we determine there is a genuine issue of material fact whether Thiele’s 

COVID-19 infection contracted in early 2020 was a compensable occupational disease or a noncompensable disease of 

ordinary life. We reverse the order of the compensation court 

and remand the cause for further proceedings.

Reversed and remanded for

further proceedings.

Cassel, J., concurring.

It seems to me that the dissenting opinion contains much 

that should provide guidance to the trial court on remand. 

But I agree that a genuine issue of material fact exists, which 

precludes summary judgment in favor of the employer. In my 

view, this case illustrates why summary judgment is a procedure that should be employed rarely, if ever, in the Nebraska 

Workers’ Compensation Court. Therefore, I concur in this 

court’s judgment reversing the summary judgment of the trial 

court and remanding the cause for further proceedings.

Stacy, J., dissenting.

I disagree with the plurality’s reasoning and holding, and 

respectfully dissent. Nebraska’s statutory definition of “[o]ccupational disease” expressly excludes “all ordinary diseases of 

life to which the general public is exposed.” 1 On this record, 

there was undisputed medical evidence that COVID-19 is an 

ordinary disease of life to which the general public is exposed. 

As such, I think the Workers’ Compensation Court correctly 

determined the employer was entitled to summary judgment as 

a matter of law, and I would affirm the judgment.

1 Neb. Rev. Stat. § 48-151(3) (Reissue 2021).
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Christine Thiele contends that she contracted an occupational disease when she became infected with the COVID19 virus in April of 2020, and she alleges that acute postCOVID-19 symptoms have prevented her from returning to 

work. Nebraska appellate courts have not previously considered the circumstances, if any, under which a contagious virus 

like COVID-19 might satisfy the definition of “occupational 

disease” under the Nebraska Workers’ Compensation Act. We 

granted bypass to address that issue of first impression. But 

due to the nature of the plurality decision rendered in this 

appeal, binding authoritative guidance on that issue will have 

to wait for a future appeal.

Although a four-justice plurality concludes the Workers’ 

Compensation Court erroneously entered summary judgment 

and thus remands the cause for further proceedings, the reasoning of the plurality’s lead opinion is endorsed by only three 

justices. Three other justices dissent from both the reasoning 

and the holding of the plurality, and I read the concurring 

opinion to stop short of endorsing the reasoning of either 

the lead opinion or the dissenting opinion. Because there is 

not majority support for the reasoning of any of the opinions 

issued in this appeal, 2 there is not yet binding legal precedent 

in Nebraska on the compensability of COVID-19 as an occupational disease, nor is there consensus on the proper framework for determining when a contagious disease falls within 

the statutory exclusion for ordinary diseases of life.

Because I disagree with the analytical framework proposed by the plurality’s lead opinion, I begin by examining 

Nebraska’s occupational disease statute and related case law 

to identify the legal principles that govern analysis of whether 

a disease falls within the statutory exclusion for ordinary 

diseases of life. I then apply those principles to the evidence 

adduced on summary judgment and explain why, on this 

2 See Neb. Const. art. V, § 2 (“majority of the members sitting shall have 

authority to pronounce a decision”).
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record, the Workers’ Compensation Court correctly determined 

there is no genuine dispute of material fact about whether 

COVID-19 is an ordinary disease of life. Finally, I address 

practical concerns with some of the new propositions of law 

endorsed by the plurality.

OCCUPATIONAL DISEASE 

COVERAGE IN NEBRASKA

The plurality’s lead opinion cites a string of cases from 

other jurisdictions for the general proposition that common 

infectious diseases like tuberculosis and hepatitis “can be 

considered occupational diseases.” But I am not persuaded 

those cases provide any meaningful benchmark for analyzing 

occupational diseases under Nebraska’s definition. This is so 

because although most states’ workers’ compensation schemes 

now allow some coverage for occupational disease, 3 statutory definitions of the term vary widely from state to state. 4

Some statutes contain elaborate definitions, others more general definitions, and some do not define the term at all. 5 Some 

statutes contain schedules listing the specific diseases that are 

considered occupational and limiting coverage to certain occupations, while others combine a list-type schedule with a more 

general definition. 6 Some statutory schemes include presumptions of coverage for certain diseases, 7 including COVID-19. 8

3 See, generally, 4 Arthur Larson et al., Larson’s Workers’ Compensation 

Law § 52.07 at 52-72 (2023) (noting “[s]ince 1950, the number of states 

having occupational disease coverage has grown from forty-four to fifty 

. . .”).

4 See, generally, id., §§ 52.03[2] and 52.04 (and statutes discussed therein). 

See, also, 2 Mark A. Rothstein et al., Employment Law § 7:24 (6th ed. 

2019) (discussing various approaches to defining occupational disease).

5 See id.

6 See 4 Larson et al., supra note 3, §§ 52.02 and 52.04[1].

7 See id., § 52.07[2].

8 See id., § 51.06[2] (discussing legislative changes in some states to 

address compensability of COVID-19 during pandemic).
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And some statutory definitions, like Nebraska’s, expressly 

exclude ordinary diseases of life, 9 while others do not. 10 This 

explains why hepatitis B can be considered an occupational 

disease in one state but not another. 11 Because the task at 

hand is determining whether COVID-19 is an occupational 

disease under Nebraska’s statutory definition, holdings from 

other states, considering different diseases, under different 

statutory frameworks, offer little guidance. I focus instead on 

Nebraska’s statutory definition of occupational disease and our 

cases construing and applying that definition.

Occupational Disease Under Nebraska 

Workers’ Compensation Act

To recover benefits under the Nebraska Workers’ 

Compensation Act, 12 a claimant must prove, by a preponderance of the evidence, that either an “accident” or an “occupational disease” arising out of and occurring in the course of 

employment proximately caused a compensable injury. 13

Nebraska’s definition of occupational disease has changed 

over time. When the Nebraska Legislature adopted the 

Workmen’s Compensation Law in 1913, only injuries caused 

“by accident” and arising out of and in the course of employment were compensable, 14 and compensable injuries were 

9 See, e.g., § 48-151(3); Mich. Comp. Laws Ann. § 418.401(2)(b) (Cum. 

Supp. 2023); Ind. Code Ann. § 22-3-7-10(a) (LexisNexis 1997).

10 See, e.g., Conn. Gen. Stat. Ann. § 31-275(15) (West 2023); Utah Code 

Ann. § 34A-3-103 (LexisNexis 2011).

11 Compare, e.g., Hansen v. Gordon, 221 Conn. 29, 602 A.2d 560 (1992) 

(holding hepatitis B is occupational disease because dental hygienist was 

exposed to higher risk of contracting disease compared to employment 

generally), with Fulton-DeKalb Hosp. Authority v. Bishop, 185 Ga. App. 

771, 365 S.E.2d 549 (1988) (holding hepatitis B is ordinary disease of life 

to which general public is exposed and not occupational disease).

12 Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2021).

13 See § 48-101.

14 See Comp. Stat. § 48-101 (1929).
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defined to expressly exclude all “occupational disease in any 

form, or any contagious or infectious disease contracted during 

the course of employment.” 15 In 1935, the Legislature expanded 

the definition of the term “injury” to include occupational diseases in a few select industries, 16 but retained a blanket exclusion for any contagious or infectious diseases. 17

In 1943, the Legislature amended the workers’ compensation act to allow broader recovery for injuries caused by occupational disease. 18 It did so by amending § 48-101 to provide 

that compensable injuries include those caused “by accident 

or occupational disease, arising out of and in the course” 19 of 

employment, and by adding the following statutory definition 

of “occupational disease”:

The term “occupational disease” shall mean only a disease which is due to causes and conditions which are 

characteristic of and peculiar to a particular trade, occupation, process or employment and to exclude all ordinary diseases of life to which the general public are 

exposed. 20

The 1943 amendments also expanded the definition of the 

terms “injury” and “personal injury” to “include disablement resulting from occupational disease arising out of and 

in the course of the employment in which the employee was 

15 Comp. Stat. § 48-152(b) (1929).

16 See Comp. Stat. § 48-152(b) (Supp. 1937) (“[T]he . . . terms [injury and 

personal injury] shall in no case be construed to include occupational 

disease in any form, except occupational diseases which arise out of and 

during the course of employment and are peculiar to the smelting, metal 

refining, or battery manufacturing industries, and which are contracted 

by workmen employed in said industries . . . . Said terms shall not be 

construed to include any contagious or infectious disease contracted 

during the course of employment . . .”).

17 See id.

18 See 1943 Neb. Laws, L.B. 230, ch. 113, § 1, p. 397.

19 Neb. Rev. Stat. § 48-101 (1943) (emphasis supplied).

20 See 1943 Neb. Laws, L.B. 230, ch. 113, § 3, p. 398.
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engaged and which was contracted in said employment.” 21

The stated purpose of the 1943 amendment was threefold:

to provide that the benefits of the Workmen’s 

Compensation Act shall extend to injuries to employees 

caused by occupational disease arising out of and in the 

course of employment; to define the term “occupational 

disease”, as used in this act[;] and to specifically exclude 

certain causes of death or disability from such term. 22

When identifying which diseases are excluded from the term 

“occupational disease,” the Legislature replaced the previous exclusion for “any contagious or infections disease” with 

a broad exclusion for “all ordinary diseases of life to which 

the general public are exposed.” 23 Except for a modification 

to the verb form, 24 this exclusionary language has remained 

unchanged since 1943.

A plain reading of Nebraska’s current statutory definition of the term “occupational disease” reveals two distinct 

clauses. The first clause describes the criteria for inclusion 

in the term, and the second clause describes the criteria for 

exclusion. Implicitly acknowledging both clauses, we said in 

1965 that the statutory definition requires that “the cause and 

conditions of the disease be characteristic of and peculiar to 

the employment and that the disease be other than an ordinary 

disease of life.” 25 And we repeated that proposition in subsequent cases. 26

21 Id.

22 See Legislative Journal, 56th Leg., 1st Sess. 1678 (May 27, 1943).

23 See 1943 Neb. Laws, L.B. 230, ch. 113, § 3, p. 398.

24 Compare Neb. Rev. Stat. § 48-151 (1943) (“to which the general public 

are exposed”), with § 48-151(3) (Reissue 2021) (“to which the general 

public is exposed”).

25 Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 792, 795, 135 N.W.2d 470, 

472 (1965) (emphasis supplied).

26 Miller v. Goodyear Tire & Rubber Co., 239 Neb. 1014, 480 N.W.2d 162 

(1992); Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).
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The two clauses in Nebraska’s definition serve different, 

but closely related, purposes. 27 The purpose of the first clause 

is to distinguish diseases that are associated with the hazards 

of a particular employment from those that might just as readily be contracted in any work environment. And the purpose 

of the second clause is to exclude altogether ordinary diseases 

that might just as readily be contracted in everyday life. 28

Nebraska Case Law on 

Occupational Disease

Over the years, this court has developed legal standards to 

assist in construing the first clause of the occupational disease 

definition, but not the second. For instance, when considering if a disease is peculiar to a particular trade or occupation, 

we have explained that “[a]n occupational disease must be a 

natural incident of a particular occupation and must attach to 

that occupation a hazard which distinguishes it from the usual 

run of occupations and which is in excess of that attending 

employment in general.” 29 We have also said that an occupational disease does not need to “originate[] exclusively from 

the employment” but “the conditions of the employment must 

result in a hazard which distinguishes it in character from 

employment generally.” 30

But Nebraska appellate courts have not previously articulated any specific legal standards to assist in determining when 

a disease falls within the exclusionary clause for “ordinary 

27 See, e.g., 4 Larson et al., supra note 3, §§ 52.03[1] at 52-5 (observing 

that various definitions of occupational disease “should always be checked 

against the purpose for which they are uttered”).

28 See, e.g., id. at § 52.03[2] at 52-7 (noting common purpose running 

through various definitions of occupational disease is to distinguish 

diseases “which might just as readily be contracted in other occupations” 

or “in everyday life apart from employment”).

29 Ritter, supra note 25, 178 Neb. at 794, 135 N.W.2d at 472.

30 Id. at 795, 135 N.W.2d at 472.
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diseases of life to which the general public is exposed.” 31

Perhaps that is because, as the plurality notes, the issue turns 

largely on medical evidence rather than judicial rules. 32

Although Nebraska has not adopted specific legal standards 

to assist in determining when a disease is an ordinary disease 

of life, our cases provide guidance. For instance, in Brown v. 

Armour & Co.,

 33 the employee alleged that he contracted the 

bacterial disease leptospirosis through contact with animal 

excrement while working at a meatpacking plant. The medical 

evidence showed that leptospirosis is primarily a disease of 

rodents but that humans, domestic animals, and livestock can 

also become infected. Medical experts testified that leptospirosis was “not a new disease in this country[,] but is apparently a 

newly recognized disease,” 34 and that only 3 of the 32 known 

variants were found in the United States. At trial, the parties 

offered contradictory medical evidence as to which variant the 

employee contracted and whether he showed symptoms of the 

disease before starting work at the meatpacking plant. This 

court ultimately concluded that even if the employee could 

prove he had been infected with a variant of leptospirosis that 

was present in the United States and associated with livestock, 

he had not proved an occupational disease within the meaning 

of § 48-151 because there was “no evidence in the record that 

leptospirosis or any of its [variants] are characteristic of or 

peculiar to the meat-packing industry or the particular work 

31 See § 48-151(3).

32 See, e.g., Osteen v. A. C. and S., Inc., 209 Neb. 282, 287, 307 N.W.2d 

514, 518 (1981) (describing medical evidence and concluding there was 

“sufficient competent medical evidence to support the . . . finding that 

peritoneal mesothelioma is a compensable occupational disease”). Accord 

Fairfax County Fire and Rescue v. Mottram, 263 Va. 365, 559 S.E.2d 698 

(2002) (observing that question whether disease is ordinary disease of life 

is medical issue to be determined based on evidence presented.)

33 Brown v. Armour & Co., 168 Neb. 835, 97 N.W.2d 342 (1959).

34 Id. at 837, 97 N.W.2d at 343.
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in which plaintiff was engaged.” 35 Presumably because the 

plaintiff failed to satisfy the first clause of the definition, the 

opinion in Brown did not address whether leptospirosis was an 

ordinary disease of life.

In Riggs v. Gooch Milling & Elevator Co.,

 36 the employee 

worked for years in a grain elevator where he “inhal[ed] . . . 

wheat dust in large quantities over a large period of time.” 

He developed severe shortness of breath, was diagnosed with 

emphysema, and sought workers’ compensation benefits, alleging that emphysema was an occupational disease acquired in 

the course of his employment. We discussed the medical evidence adduced by the parties and concluded emphysema was a 

compensable occupational disease, reasoning:

It is clear from the record that plaintiff worked in 

wheat dust in unusual amounts during the 15 years he was 

employed by the defendant. Wheat dust is characteristic 

of the operations of a grain elevator and is peculiar to it 

within the meaning of the act. Any disease or condition 

arising from working continuously in wheat dust is not 

an ordinary disease of life to which the general public is 

exposed within the contemplation of the statute. 37

In Ritter v. Hawkeye-Security Ins. Co.,

 38 the claimant was 

employed for 2 years as a restaurant dishwasher where he 

used a variety of commercial detergents, scouring powders, 

and bleaching agents. He developed a rash on his hands and 

was diagnosed with severe contact dermatitis; it was undisputed that he acquired the condition at work. Although the 

Ritter opinion described evidence that contact dermatitis “is 

a condition that occurs frequently and is common among 

35 Id. at 840, 97 N.W.2d at 345.

36 Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 75, 112 N.W.2d 531, 

534 (1961).

37 Id. at 73-74, 112 N.W.2d at 533.

38 Ritter, supra note 25.
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housewives,” 39 the opinion did not find the employee’s dermatitis to be an ordinary disease of life. When explaining why, 

the court appeared to conflate the first and second clauses of 

the definition, reasoning:

The evidence in this case does not establish that the 

plaintiff’s disease is an ordinary disease of life. The evidence is that contact dermatitis results from the use of 

a sensitizing or irritating agent and that detergents and 

cleansing chemicals are common causes of the disease. 

The evidence establishes that the cause and conditions 

of the disease are characteristic of and peculiar to the 

occupation of dishwashing and that dishwashing involves 

a hazard which is greater than that which occurs in 

employment generally. 40

To the extent Ritter can be read to suggest that if a disease 

is characteristic of or peculiar to the employment it is, ipso

facto, not an ordinary disease of life, such reasoning would 

effectively read the exclusionary clause out of the statutory 

definition altogether, and thus would contravene settled principles of statutory construction. 41 Although the language Ritter

used was imprecise, it appears the court was attempting to 

distinguish the employee’s disease from ordinary diseases of 

life by focusing on evidence that regular exposure to the harsh 

detergents and chemicals used in the occupation of dishwashing presented a unique hazard that was greater than occurred 

in everyday life.

39 Id. at 794, 135 N.W.2d at 471.

40 Id. at 795, 135 N.W.2d at 472.

41 See, e.g., SID No. 596 v. THG Development, 315 Neb. 926, 942, 2 N.W.3d 

602, 616 (2024) (“[t]o give effect to all parts of a statute, an appellate 

court will attempt to reconcile different provisions so they are consistent, 

harmonious, and sensible, and will avoid rejecting as superfluous or 

meaningless any word, clause, or sentence”); Porter v. Knife River, Inc., 

310 Neb. 946, 970 N.W.2d 104 (2022) (same).
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Our opinion in Osteen v. A. C. and S., Inc.,

 42 contains 

perhaps the most comprehensive discussion of the type of 

medical evidence that will support a finding that a particular 

disease is not an ordinary disease of life to which the general 

public is exposed. In Osteen, the employee worked as an 

insulator for more than 30 years and was regularly exposed 

to asbestos. He died from peritoneal mesothelioma, described 

as “a rare form of abdominal cancer caused by exposure to 

asbestos particles,” 43 and his widow sought workers’ compensation benefits, alleging that his death was caused by an 

occupational disease. There was medical evidence to support the conclusion that mesothelioma was a disease caused 

by conditions that were peculiar to asbestos workers, in that 

approximately 60 to 80 percent of the workers who died of 

mesothelioma had a history of prolonged exposure to asbestos 

in their employment. There was also medical evidence supporting the conclusion that mesothelioma was not an ordinary 

disease of life, because “the incidence of peritoneal mesothelioma is almost negligible in the population at large, but 

approaches 7 percent in asbestos workers.” 44 We concluded 

this was “sufficient competent medical evidence to support 

the [trial court’s] finding that peritoneal mesothelioma is a 

compensable occupational disease.” 45

These cases illustrate two important principles in our occupational disease jurisprudence. First, even when the evidence 

shows that a disease was acquired at work, it will not be 

considered an occupational disease unless there is competent 

medical evidence showing the disease was acquired due to 

causes or conditions that are characteristic of and peculiar 

to the specific employment. 46 Second, a disease acquired 

42 Osteen, supra note 32.

43 Id. at 284, 307 N.W.2d at 517.

44 Id. at 286-87, 307 N.W.2d at 518.

45 Id. at 287, 307 N.W.2d at 518.

46 See, e.g., Brown, supra note 33.
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at work is not necessarily excluded from the definition of 

occupational disease merely because the disease can also 

be acquired outside the work environment. Instead, if there 

is competent medical evidence showing the conditions or 

hazards that caused the disease in the work environment are 

meaningfully different from the conditions or hazards that 

cause the disease in everyday life, the disease may be found 

to be occupational and not an ordinary disease of life. 47

In the sections that follow, I apply the statutes and principles discussed above to the medical evidence in the record 

to explain why I think the trial court’s summary judgment 

ruling was correct and should be affirmed. Before doing so, it 

is necessary to supplement the plurality’s discussion of both 

the evidence adduced by the parties and the reasoning of the 

Workers’ Compensation Court.

SUMMARY JUDGMENT

Employer’s Medical Evidence

The employer, Select Specialty Hospital, offered a report 

from Dr. Todd Sauer describing the general nature of the 

COVID-19 virus, including how it is acquired, how it spreads, 

and the range of symptoms that can be experienced. Sauer 

stated that “Coronovirus disease,” also called COVID-19, is 

a respiratory virus caused by “SARS-CoV-2, a virus from the 

coronavirus family.” He explained that COVID-19 is spread

through contact with a surface that has viral particles or 

through the air when an infected person coughs, sneezes, 

talks or breathes. It infects people of all ages, genders, 

and races. The range of illness it produces is very wide. 

47 See, e.g., Riggs, supra note 36; Ritter, supra note 25; Osteen, supra note 

32. See, also, 4 Larson et al., supra note 3, § 52.03[3][a] and [b] at 52-11, 

52-13 (explaining that ordinary diseases of life can be distinguished from 

occupational diseases “[i]f the employment is attended with unusual 

germs, poisons, chemicals, fumes, dust, spores, or similar conditions” or 

when “familiar harmful elements are present to unusual degree” in the 

work environment).
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Infected people can be asymptomatic and are not even 

aware they have the infection. Other people have a mild, 

cold-like illness. And yet others can get extremely ill, 

and many people have died from the infection.

Sauer further explained the COVID-19 virus was first identified in Wuhan, China, in “late 2019” and then became a 

global pandemic “spread[ing] around the world [and] infecting hundreds of millions of people.” Sauer stated that the 

virus was spreading throughout the entire United Stated by 

late March 2020 and that “as of today,” the virus had infected 

more than 88,066,096 people in the United States, the virus 

had caused more than 1 million deaths, and “most people in 

the United States have been exposed to the virus.” He predicted that COVID-19 would continue to infect people in the 

United States for years to come, eventually becoming endemic 

“like influenza.” Observing that the COVID-19 virus “spread 

in waves across our entire Nation through restaurants, stores, 

schools, and all social, public activities,” Sauer opined that 

COVID-19 “is an ordinary disease of life to which the general 

public is exposed and will continue to be in the years ahead.”

Thiele’s Medical Evidence

Thiele offered medical reports from Drs. Sehr Haroon, 

Marco Gonzalez-Castellon, and Karen Wilson, all of whom 

addressed the risk of COVID-19 infection among frontline 

health care workers early in the pandemic. Haroon cited studies finding that health care workers who were exposed to 

COVID-19 patients “had [an] increased risk of covid [compared to] the general population early on in the pandemic, 

given their profession” and that “[f]rontline healthcare workers had a significantly increased risk of symptomatic covid 

infection, which was highest among healthcare workers with 

inadequate access to personal protective equipment who cared 

for [COVID-19] patients.” The record contains no evidence 

that Thiele cared for COVID-19 patients, but Haroon stated 

that Thiele “did not need direct patient contact” to become 
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infected and opined that she “likely was exposed at work . . . 

via the work room where she was unmasked while an asymptomatic shedder was in that same space.”

Gonzalez-Castellon and Wilson both stated that Thiele 

“was exposed to a higher risk of contracting [COVID-19] 

at her employment, a hospital/medical facility, than other 

employments or the general public.” And both opined that 

Thiele more likely than not acquired her COVID-19 infection 

“at her workplace.”

Neither Haroon, Gonzalez-Castellon, nor Wilson offered a 

medical opinion that COVID-19 is not an ordinary disease of 

life to which the general public is exposed. But Haroon was 

asked whether she disagreed with any of Sauer’s statements or 

opinions, to which she replied:

I agree that currently, covid is in the community. 

However, the argument at hand is not about today. It is 

about what the situation was when . . . Thiele contracted 

covid back in April 2020. At that time, covid19 was a 

more virulent variant[,] vaccines were not available, and 

treatment options we now rely on were not yet known. 

As a medical community, the science was evolving, 

which made it an interesting albeit traumatic time in 

modern medicine.

Evidence of Local Community 

Spread in Early 2020

The record also contains several exhibits describing and 

documenting the community spread of COVID-19 throughout 

Nebraska, and the Omaha, Nebraska, area, prior to the date 

on which Thiele became infected. As relevant to the issues on 

appeal, this evidence showed that on March 19, 2020, a directed 

health measure was issued by the Nebraska Department of 

Health and Human Services (DHHS), stating that many areas 

of the United States were “experiencing ‘community spread’ 

of the virus that causes COVID-19” and that there were “confirmed cases” of community spread in the areas subject to 
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the directed health measure, which included Douglas County. 

Noting the “exposure is wide-spread and poses a significant 

risk of harm to people in the general population,” DHHS 

implemented immediate restrictions on public gatherings in 

many indoor spaces “to minimize in-person interaction, which 

is the main means of transmission of COVID-19” and to “prevent, limit, or slow the spread of COVID-19.” A press release 

dated March 29, 2020, reported that COVID-19 was spreading among long-term care residents in Douglas County. A 

news release dated April 6, 2020, reported that more than 400 

COVID-19 cases had been reported statewide in Nebraska at 

that point. And an article published in April 2020 documented 

the community spread of COVID-19 among workers in meat 

and poultry processing facilities across the country, including 

in Nebraska.

Compensation Court’s Ruling 

on Summary Judgment

The plurality’s lead opinion sets out some, but not all, of 

the undisputed facts identified by the Workers’ Compensation 

Court based on the evidence presented by the parties. To provide context for the compensation court’s analysis, I list some 

of the other facts the trial court found to be undisputed:

• COVID-19 is caused by a virus from the coronavirus family; 

it is a respiratory virus that is easily transmitted from person 

to person through close contact with an infected person, and it 

spreads easily throughout communities.

• The virus that causes COVID-19 is airborne and can infect 

people of all ages, races, and genders; the virus spreads when 

an infected person coughs, sneezes, talks, or breathes.

• COVID-19 was first identified in Wuhan, China, in late 2019, 

and the virus then spread around the world, infecting hundreds 

of millions of people.

• On March 6, 2020, the first COVID-19 infection was reported 

in Douglas County. On March 19, DHHS issued a directed 

health measure that prohibited public gatherings of more 
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than 10 persons in Douglas County. By April 6, 412 cases of 

COVID-19 had been reported in Nebraska, and there were 

“lockdowns” in the Omaha community.

• Thiele began experiencing symptoms of COVID-19 on April 6, 

2020, and tested positive for the virus on April 10.

• COVID-19 has spread in waves across the United States 

through restaurants, stores, schools, and all social and public 

activities. At this point, most people in the United States have 

been exposed to COVID-19.

• COVID-19 is an ordinary disease of life to which the general 

public is exposed and will continue to be exposed in the years 

to come.

The compensation court began its summary judgment analysis by noting the employer did not contest that Thiele contracted COVID-19 while “working for Select.” Therefore, 

the court did not address causation and focused instead on 

whether there was a genuine dispute as to whether COVID-19 

is an occupational disease under § 48-151(3).

In doing so, the court primarily addressed the statutory 

exclusion under § 48-151(3) for “all ordinary diseases of life 

to which the general public is exposed.” But it also briefly 

addressed the requirement that an occupational disease must 

be one that is “due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, 

process, or employment.” In that regard, the court noted that 

unlike the disease of emphysema considered in Riggs that 

was acquired after years of exposure to wheat dust in grain 

elevators, the contact dermatitis considered in Ritter that was 

acquired after years of exposure to harsh cleaning agents, or 

the mesothelioma considered in Osteen that was acquired after 

years of exposure to asbestos, COVID-19 is acquired the same 

way in all work environments and in the community at large. 

The court reasoned:

While each of these diseases (mesothelioma, emphysema and contact dermatitis) can be contracted outside of 

work, they were commonly associated with some sort of 
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substance unique to the injured worker’s occupation. This 

is not true of [Thiele’s] occupation or of COVID-19.

COVID-19 is not caused by a [work-related] substance 

like wheat dust or a product like Ajax or a mineral like 

asbestos. Instead, [it] is caused by a virus, SARS-CoV-2, 

which is from the same family of viruses that causes 

the common cold. COVID-19 is spread by close contact 

with an infected person. . . . It is, like other respiratory viruses, easily transmitted from person to person 

throughout communities. . . . COVID-19 spreads when 

an infected person coughs, sneezes, talks, or breathes. . 

. . While COVID-19 is more prevalent in the health care 

field, it is not characteristic or peculiar to healthcare 

workers. It is characteristic and peculiar to people, and 

people are found in every workplace.

The court ultimately concluded that due to the nature of 

COVID-19, it is “not related to an occupation” at all.

The court then considered the statutory exclusion for ordinary diseases of life. In that regard, it noted Sauer’s unrefuted opinion that COVID-19 is an ordinary disease of life to 

which the general public is exposed, and it found that opinion 

was supported by evidence of how the virus is transmitted 

from person to person, and how quickly the disease spread 

through communities around the world, including Nebraska. 

The court also addressed Thiele’s contention, which she repeats 

on appeal, that even if COVID-19 is generally considered an 

ordinary disease of life now, it was not an ordinary disease 

of life in April 2020 when she contracted it. The Workers’ 

Compensation Court “gave careful consideration to this argument,” but ultimately rejected it, reasoning:

The fact that there were only 412 cases in Nebraska [in 

April 2020] does not change the nature of COVID-19. 

While it was more virulent early on, COVID-19 was 

then, and remains today, a disease caused by a virus. 

It did not morph into something else once it spread to 

more and more people. Even though COVID-19 mutated 
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into milder variants over time, it remains at its core 

a disease caused by a virus. . . . As Dr. Sauer stated, 

COVID-19 started in China and spread across two continents infecting millions of people, and by March 2020, 

it was spreading throughout the United States. It was 

something everyone was susceptible [to] contracting, 

and that is why so many businesses were closed.

. . . .

. . . Dr. Sauer stated COVID-19 is a disease of ordinary life. The manner in which COVID-19 traveled from 

China to England to the United States and ultimately to 

Nebraska, supports that conclusion. Importantly, none 

of [Thiele’s] experts refuted Dr. Sauer’s opinion that 

COVID-19 is an ordinary disease of life. While early on 

in the pandemic, healthcare workers were more likely to 

catch COVID-19, that fact does not change the nature 

of what COVID-19 is. It remains a disease caused by 

a virus. That virus is anywhere people are. That is how 

[the disease] spread from one continent to another. It is 

not an occupational disease. Rather, it is a disease of 

ordinary life.

SUMMARY JUDGMENT SHOULD 

BE AFFIRMED

When analyzing the compensation court’s ruling, the plurality correctly recites the basic summary judgment standard, 

but does not mention our de novo standard of review or the 

shifting burden of proof. An appellate court reviews the district court’s grant of summary judgment de novo, viewing 

the record in the light most favorable to the nonmoving party 

and drawing all reasonable inferences in that party’s favor. 48

Regarding the burden of proof, it is well settled that the party 

moving for summary judgment must make a prima facie case 

48 Griffith v. LG Chem America, 315 Neb. 892, 1 N.W.3d 899 (2024).
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by producing enough evidence to show the movant would 

be entitled to judgment if the evidence were uncontroverted 

at trial. 49 If the moving party makes a prima facie case, the 

burden then shifts to the nonmovant to produce evidence 

showing the existence of a material issue of fact that prevents 

judgment as a matter of law. 50

Viewing the evidence de novo in the light most favorable 

to Thiele and drawing all reasonable inferences in her favor, 

I conclude the employer presented a prima facie case that 

COVID-19 is an ordinary disease of life through Sauer’s opinions and other exhibits documenting the spread of COVID-19 

throughout Nebraska in March and April 2020. Those exhibits 

showed that prior to Thiele’s infection, COVID-19 outbreaks 

were being reported among residents in long-term care facilities in Nebraska and among workers in animal processing 

plants in Nebraska. And concerns of widespread exposure to 

COVID-19 in the general population prompted DHHS, on 

March 19, 2020, to prohibit public gatherings of more than 10 

people in schools, daycares, gyms, salons, stadiums, conference rooms, theaters, libraries, and other confined spaces in 

Douglas County.

Sauer’s report referred to the cumulative number of confirmed COVID-19 infections in the United States when he 

stated that “as of today,” the virus had infected more than 

88,066,096 people in the United States, the virus had caused 

more than 1 million deaths, and “most people in the United 

States have been exposed to the virus.” But I see nothing in 

Sauer’s opinion suggesting he was addressing only the current status of the disease when he described COVID-19 as an 

ordinary disease of life. To the contrary, his report addressed 

the nature and spread of COVID-19 on a comprehensive 

timeline that spanned from late 2019 up through the present, 

49 Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).

50 Id.
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and his medical opinion that COVID-19 is an ordinary disease of life was not limited to any particular point on that 

pandemic timeline.

Once the employer established this prima facie case, the 

burden shifted to Thiele to produce evidence showing the existence of a material issue of fact that would prevent judgment 

as a matter of law. 51 But Thiele’s medical evidence focused 

primarily on issues of causation, referencing studies showing 

that health care workers had an increased risk of contracting 

symptomatic COVID-19 early in the pandemic and offering 

medical opinions that she likely acquired COVID-19 at work. 

None of Thiele’s medical experts opined that COVID-19 is 

not an ordinary disease of life to which the general public is 

exposed. Nor did Thiele present medical evidence suggesting 

that the manner in which she contracted COVID-19 at work 

was somehow different from the manner in which COVID-19 

is contracted in the general community. 52

And although Thiele argued to the court that COVID-19 

was not yet a disease of ordinary life when she acquired it 

in April 2020, no medical expert offered such an opinion. 

Instead, Haroon stated, “I agree that currently, covid is in 

the community,” and then Haroon referenced Thiele’s argument directly when stating, “However, the argument at hand 

is not about today. It is about what the situation was when 

. . . Thiele contracted covid back in April 2020.” But Haroon 

did not go on to opine that in April 2020, COVID-19 was not 

an ordinary disease of life or that the general public was not 

exposed to the disease. Instead, she stated that in April 2020, 

the disease was more virulent and medical science had not yet 

developed vaccines or discovered effective therapies. Even 

affording Thiele all reasonable inferences from this statement, 

51 See id.

52 Compare, e.g., Riggs, supra note 36; Ritter, supra note 25; Osteen, supra

note 32. See, also, 4 Larson et al., supra note 3, § 52.03[3][a] and [b].
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it merely shows that the medical community’s response to 

COVID-19 was still evolving in April 2020; it does not 

change the nature of the disease or contradict the medical 

evidence showing that in March and April 2020, COVID19 was spreading rapidly through communities around the 

world, including Omaha, and had become a global pandemic 

to which the general public was exposed. In other words, 

Haroon’s statements that COVID-19 was not well understood 

by the medical community early in the pandemic did not contradict Sauer’s opinion that COVID-19 is an ordinary disease 

of life to which the general public is exposed. On this record, 

Thiele’s evidence failed to show a genuine issue of fact 

regarding whether COVID-19 is an ordinary disease of life.

As noted earlier, to satisfy the statutory definition of occupational disease under Nebraska law, one must show both 

that “‘the cause and conditions of the disease [are] characteristic of and peculiar to the employment and that the disease 

[is] other than an ordinary disease of life.’” 53 Proving that 

COVID-19 is not an ordinary disease of life was an essential 

element of Thiele’s occupational disease claim, and a failure 

of proof on an essential element of the nonmoving party’s 

claim necessarily renders all other facts immaterial on a 

motion for summary judgment. 54

On this record, the evidence was undisputed that COVID-19 

is an ordinary disease of life, and consequently, Thiele cannot 

prevail on her claim that COVID-19 is an occupational disease. 

The employer was entitled to summary judgment as a matter 

of law, and it is unnecessary to consider whether there was 

a genuine factual dispute about whether Thiele’s COVID-19 

infection was due to causes or conditions characteristic of and 

peculiar to her employment as a nurse liaison.

53 Miller, supra note 26, 239 Neb. 1023, 480 N.W.2d at 169. See, Abbott,

supra note 26; Ritter, supra note 25.

54 Clark, supra note 49.
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PLURALITY’S ENDORSEMENT OF 

TEMPORAL REQUIREMENT

The plurality concludes that the compensation court’s ruling must be reversed because of its “reliance on the situation 

in 2022” rather than “the period of March and April 2020.” 

In finding this amounted to error, the plurality endorses a 

new proposition of law that “in cases claiming occupational 

disease, the proper focus is on the period of exposure prior 

to contraction or onset of symptoms to determine whether the 

illness was an ordinary disease of life at those times.” As I 

explain, this temporal requirement is not found in the plain 

text of Nebraska’s occupational disease statute, and I am not 

persuaded it finds support in either the case law or the occupational disease literature generally.

The plurality’s lead opinion states:

As we read § 48-151(3), to be compensable as an occupational disease, a claimant must demonstrate that the 

disease stemmed from an identifiable period of time, and 

it logically follows that the claimant must establish that 

the exposure was not an ordinary disease of life during 

that same time period as ordinary disease of life is used 

in the statute.

I see no support for this construction either in the plain text 

of the statutory definition or in Nebraska case law. To the 

contrary, I see tension between the new temporal requirement 

endorsed by the plurality and our settled case law determining 

the date of injury in occupational disease cases.

Because occupational diseases typically develop over long 

periods of exposure to a particular work-related hazard, we 

have recognized the difficulty of identifying a precise date of 

injury for purposes of determining when an occupational disease claim accrues and the limitations period begins to run. 55

To bring clarity to that issue, this court has adopted the rule in 

occupational disease cases that the date of injury is understood 

55 See, e.g., Hauff v Kimball, 163 Neb. 55, 77 N.W.2d 683 (1956).
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to be the date on which the employee becomes partially or 

totally disabled by the disease, 56 not the date when symptoms 

first appeared 57 or the disease was first diagnosed. 58 Because 

the plurality’s new temporal requirement would define diseases 

of ordinary life using the date on which an employee’s symptoms first appear, rather than the date on which the alleged 

occupational disease manifests into a disability, it is not clear 

to me how courts in Nebraska would reconcile these competing rules in future cases. Moreover, because Thiele’s operative complaint alleges that her disability is due to “[a]cute 

postCovid symptoms,” including “cardiovascular issues, neurological issues, [and] cognitive impairments,” it is not clear to 

me whether the plurality’s new rule would require the compensation court to focus on the time period just before the onset of 

Thiele’s COVID-19 infection or the time period just before the 

onset of the post-COVID-19 symptoms she alleges prevent her 

from returning to work.

Nor do I find support for the new proposition of law in the 

extrajurisdictional cases cited in the plurality’s lead opinion. 

The plurality cites several opinions from New York, some of 

them unpublished, for the rule that “in cases claiming occupational disease, the proper focus is on the period of exposure prior to contraction or onset of symptoms to determine 

56 See, e.g., Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 

N.W.2d 517 (2004) (occupational disease causes injury within meaning of 

act at point when disease has resulted in disability); Hull v. Aetna Ins. Co., 

247 Neb. 713, 719, 529 N.W.2d 783, 789 (1995) (in occupational disease 

case, date of injury is “the date that the employee becomes disabled from 

rendering further service”); Hauff, supra note 55 (in occupational disease 

case, date of injury is date when employee first experiences disability).

57 See, e.g., Hauff, supra note 55, 163 Neb. at 61, 77 N.W.2d at 687 (claim 

for occupational disease accrues when injury to employee culminates 

in disability “‘not from the time the employee has knowledge of the 

disease’”).

58 Hull, supra note 56 (holding dentist’s contact dermatitis manifested 

into compensable disability when physician recommended dentist cease 

practicing, not when contact dermatitis was first diagnosed).
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whether the illness was an ordinary disease of life at those 

times.” But those New York cases address the compensability 

of COVID-19 under a theory of accidental injury, not occupational disease. 59 And the unpublished opinions from Virginia 

and Delaware, which the plurality cites for the proposition that 

“in COVID-19 cases, the factual focus for an ordinary disease 

of life analysis is at the time of onset, rather than in subsequent 

years,” do not discuss such a rule. 60

But there is a more fundamental reason to be cautious about 

relying on cases from other states regarding the compensability 

of COVID-19 claims. In addition to defining occupational disease differently than Nebraska, a number of states responded 

to the COVID-19 pandemic by issuing executive orders or 

enacting legislation that created a presumption of compensability for certain employees who contracted the disease at work. 61

No such presumption exists in Nebraska, 62 and this court 

59 See, Aungst v. Family Dollar, 221 A.D.3d 1222, 199 N.Y.S.3d 291 (2023) 

(addressing compensability of COVID-19 as work-related accidental 

injury); Employer: Long Island DDSO, No. G233 5526, 2022 WL 

594590 (N.Y. Work. Comp. Bd. Feb. 16, 2022) (addressing presumption 

of compensability in accidental injury cases); Employer: Manhattan 

Psychiatric Center, Nos. G281 3814, G280 2169, 2021 WL 5748736 (N.Y. 

Work Comp. Bd. Nov. 29, 2021) (same).

60 See, Taylor v. Posey, No. 1042-22-4, 2023 WL 5021240 (Va. App. Aug. 

8, 2023) (addressing whether workers’ compensation exclusivity provision 

barred wrongful death action against employer alleging negligence resulted 

in employee’s COVID-19 infection); Fowler v. Perdue Farm, Inc., No. CV 

K21A-01-002 NEP, 2022 WL 807327 (Del. Super. Mar. 16, 2022) (holding 

tribunal erred by rejecting unrebutted expert testimony on causation of 

COVID-19 infection and substituting its own purported expertise and 

extrajudicial knowledge regarding spread of disease).

61 See 4 Larson et al., supra note 3, § 51.06[2] (identifying multiple 

states, including Virginia, that enacted legislation or issued emergency 

executive orders establishing presumption of compensability for COVID19 infections).

62 See, e.g., Neb. Rev. Stat. § 25-3604(3) (Cum. Supp. 2022) (providing 

Nebraska’s COVID-19 Liability Act shall not be construed to affect rights 

under Nebraska Workers’ Compensation Act).
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should avoid importing the public policy decisions of other 

states into our occupational disease jurisprudence.

I am not persuaded that the academic literature on occupational disease supports the plurality’s new temporal requirement either. Instead, when addressing the compensability of 

COVID-19 as an occupational disease, at least one treatise 

equates COVID-19 with other contagious diseases of ordinary life:

Generally speaking, COVID-19 cannot be considered 

an occupational disease under most state acts. That is 

because the disease is not peculiar to a particular trade or 

industry. To be sure, health care workers are particularly 

susceptible to the contagious disease; they are, however, 

susceptible to a host of other diseases, including the common cold. Those diseases of ordinary life are generally 

outside the definition of occupational disease. 63

Finally, setting aside the merits of the plurality’s new 

requirement that courts must focus “on the period of exposure prior to contraction or onset of symptoms to determine 

whether the illness was an ordinary disease of life,” I think 

such a requirement was met on this record. Sauer’s report 

described how the contagious virus that causes COVID-19 

is transmitted from person to person through close contact, 

and his report described the global community spread of 

COVID-19 in late 2019, in March and April 2020 just prior to 

Thiele’s infection, in 2022, and into the future. Sauer’s report 

addressed the community spread of COVID-19 on a comprehensive timeline that included the period just before Thiele 

contracted the disease, and his medical opinion that COVID19 is an ordinary disease of life was not limited to any particular point on that pandemic timeline; rather, it encompassed 

them all. Moreover, the compensation court expressly focused 

on the timeframe when Thiele contracted the virus when it 

explained why, after careful consideration, it was rejecting 

63 4 Larson et al., supra note 3, § 51.06[2] at 51-13.
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Thiele’s contention that in April 2020, COVID-19 was not yet 

an ordinary disease of life to which the general public was 

exposed. On this record, I cannot agree with the plurality’s 

conclusion that the Workers’ Compensation Court erroneously focused on the wrong timeframe when it concluded that 

Thiele’s COVID-19 infection was an ordinary disease of life 

under § 48-151(3).

CONCLUSION

Section 48-151(3) expressly excludes from the definition of 

occupational disease “all ordinary diseases of life to which the 

general public is exposed.” The employer presented competent 

medical evidence that COVID-19 is an ordinary disease of life 

to which the general public is exposed not just currently, but 

also when Thiele contracted the disease in April 2020. Because 

that medical evidence was unrefuted, Thiele cannot prevail on 

her occupational disease claim, and the employer was entitled 

to summary judgment as a matter of law. I would affirm the 

judgment of the Workers’ Compensation Court.

Heavican, C.J., and Funke, J., join.