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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

Jose Martinez, appellee, v. International Paper 

Company, a foreign corporation, 

and Old Republic Insurance 

Company, appellants.

___ N.W.2d ___

Filed January 7, 2020. No. A-19-409.

1. Workers’ Compensation: Appeal and Error. A judgment, order, or 

award of the Workers’ Compensation court may be modified, reversed, 

or set aside only upon the grounds that (1) the compensation court acted 

without or in excess of its powers; (2) the judgment, order, or award was 

procured by fraud; (3) there is not sufficient competent evidence in the 

record to warrant the making of the order, judgment, or award; or (4) 

the findings of fact by the compensation court do not support the order 

or award.

2. ____: ____. Determinations by a trial judge of the compensation court 

will not be disturbed on appeal unless they are contrary to law or depend 

on findings of fact which are clearly wrong in light of the evidence.

3. ____: ____. On appellate review, the factual findings made by the trial 

judge of the compensation court have the effect of a jury verdict and 

will not be disturbed unless clearly wrong.

4. ____: ____. An appellate court is obligated in compensation court cases 

to make its own determinations as to questions of law.

5. Courts: Appeal and Error. Under the doctrine of stare decisis, lower 

courts must follow the precedent of higher appellate courts.

6. Workers’ Compensation: Proof. Under Neb. Rev. Stat. § 48-151(2) 

(Reissue 2010), an injured worker must satisfy three elements to prove 

an injury is the result of an accident: (1) The injury must be unexpected 

or unforeseen, (2) the accident must happen suddenly and violently, 

and (3) the accident must produce at the time objective symptoms 

of injury.

7. Workers’ Compensation: Time: Proof: Words and Phrases. Under 

Neb. Rev. Stat. § 48-151(2) (Reissue 2010), “suddenly and violently” 

Nebraska Supreme Court Online Library

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

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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

does not mean instantaneously and with force; instead, the element is 

satisfied if the injury occurs at an identifiable point in time, requiring 

the employee to discontinue employment and seek medical treatment. 

The time of an accident is sufficiently definite if either the cause is 

reasonably limited in time or the result materializes at an identifiable point.

8. Workers’ Compensation: Time: Proof. An employee establishes an 

identifiable point in time when a repetitive trauma injury occurs if the 

employee discontinues work and seeks medical treatment; it does not 

matter how long the discontinuation of employment lasts.

9. Workers’ Compensation. As the trier of fact, the compensation court is 

the sole judge of the credibility of witnesses and the weight to be given 

their testimony.

Appeal from the Workers’ Compensation Court: Daniel R. 

Fridrich, Judge. Affirmed.

Timothy E. Clarke and Eric J. Sutton, of Baylor Evnen, 

L.L.P., for appellants.

Jamie Gaylene Scholz, of Law Offices of Jamie G. Scholz, 

P.C., L.L.O., for appellee.

Pirtle, Riedmann, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

International Paper Company and Old Republic Insurance 

Company (collectively International Paper) appeal the 

Nebraska Workers’ Compensation Court’s award, finding that 

Jose Martinez suffered a repetitive trauma injury and awarding 

him benefits. Based on our review of the record, we affirm.

BACKGROUND

In February 2018, Martinez filed a petition in the compensation court seeking benefits from International Paper under 

the Nebraska Workers’ Compensation Act. Martinez alleged 

that he sustained an injury to his right shoulder by performing 

“repetitive use-type activities” and that he “suffered an acute 

episode of pain in his right shoulder a few weeks prior to 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

interrupting his employment and seeking medical treatment on 

November 9, 2017.” A hearing was held on Martinez’ petition 

in February 2019.

At the hearing, Martinez testified that he was currently 

employed at International Paper Company and had worked 

for the company for more than 19 years. He indicated that he 

developed shoulder pain in 2008, but he did not miss work 

due to the pain—although the pain was consistent and worsening from 2008 until 2017. On November 8, 2017, Martinez 

felt a sharp pain in his right shoulder, his right arm “locked,” 

and he could not move it. He indicated that the pain he experienced was worse than previous pain and that it prevented 

him from even lying on his shoulder that night. Martinez testified that his shoulder had locked in place before November 

8, but it always loosened up; however, on that occasion, it 

did not.

Martinez informed his supervisor before his shift the next 

day that he could not work, and he was taken to see a doctor 

on November 9, 2017. He underwent an MRI that same day, 

and it was discovered that he had a tear of his right rotator 

cuff. Following this, he returned to work at International Paper 

Company, but was placed on “lighter-duty work.” Martinez 

met with Dr. Scott Reynolds in December, and it was decided 

that Martinez would undergo surgery to repair his rotator 

cuff. Reynolds performed the surgery in January 2018, and 

then Martinez underwent physical therapy, returning to work 

in April.

On cross-examination, Martinez testified that he started 

feeling pain in his shoulder in 2008 and that his pain continued to get worse until he saw Reynolds in November 2017. 

He testified that he had felt locking and limitations in movement in his arm prior to the incident on November 8, but the 

pain was severe enough on that date that he needed to see 

a doctor. Martinez admitted to seeing his family physician 

in September 2017 for his annual physical. At that appointment, he informed his doctor that he was having pain in his 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

shoulder. Martinez was also questioned regarding prior intake 

forms he filled out in November and December, as well as 

prior to his physical therapy in January 2018. On each form, 

he indicated that he had been having shoulder pain for a long 

period of time and that there was not a specific injury that 

occurred prior to his visits.

Following the hearing, the compensation court issued a 

detailed order awarding Martinez temporary and permanent 

disability benefits for his shoulder injury. The court noted 

that Martinez advanced two alternate theories of recovery 

during trial, one alleging that an acute accident happened on 

November 8, 2017, and one alleging that his shoulder injury 

was the result of repetitive job duties, which manifested itself 

on November 9. The court found that Martinez did not suffer 

an acute accident on November 8; however, it did find that 

Martinez suffered a repetitive trauma accident on November 

9. Prior to analyzing Martinez’ repetitive trauma injury, the 

court explained the relevant case law for that type of injury 

and analyzed Martinez’ injury under the test enunciated in 

Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 

N.W.2d 167 (2003), disapproved on other grounds, Kimminau 

v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005). 

The court also noted that there were discrepancies between 

Reynolds’ causation report, which was offered into evidence 

at the hearing, and Martinez’ testimony; however, the court 

remained persuaded by the report and issued an award in favor 

of Martinez. International Paper timely appealed.

ASSIGNMENTS OF ERROR

International Paper assigns, restated and reordered, that 

the compensation court erred (1) as a matter of law in applying the test enunciated in Dawes v. Wittrock Sandblasting 

& Painting, supra, rather than the limited test provided in 

Maxson v. Michael Todd & Co., 238 Neb. 209, 469 N.W.2d 

542 (1991), disapproved, Jordan v. Morrill County, 258 Neb. 

380, 603 N.W.2d 411 (1999), and Vencil v. Valmont Indus., 

239 Neb. 31, 473 N.W.2d 409 (1991), disapproved, Jordan 
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Cite as 27 Neb. App. 933

v. Morrill County, supra; (2) in concluding that Martinez suffered a compensable repetitive trauma injury arising out of 

and in the course and scope of his employment; and (3) in 

relying on Reynolds’ causation opinion.

STANDARD OF REVIEW

[1] A judgment, order, or award of the compensation court 

may be modified, reversed, or set aside only upon the grounds 

that (1) the compensation court acted without or in excess of 

its powers; (2) the judgment, order, or award was procured 

by fraud; (3) there is not sufficient competent evidence in the 

record to warrant the making of the order, judgment, or award; 

or (4) the findings of fact by the compensation court do not 

support the order or award. Potter v. McCulla, 288 Neb. 741, 

851 N.W.2d 94 (2014).

[2,3] Determinations by a trial judge of the compensation 

court will not be disturbed on appeal unless they are contrary 

to law or depend on findings of fact which are clearly wrong 

in light of the evidence. Kaiser v. Metropolitan Util. Dist., 26 

Neb. App. 38, 916 N.W.2d 448 (2018). On appellate review, 

the factual findings made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id.

[4] An appellate court is obligated in compensation court 

cases to make its own determinations as to questions of law. 

Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 

(2002).

ANALYSIS

Appropriate Test for Repetitive 

Trauma Injuries.

International Paper argues that the compensation court 

erred in analyzing Martinez’ repetitive trauma injury under 

the test enunciated by the Nebraska Supreme Court in Dawes 

v. Wittrock Sandblasting & Painting, supra. International 

Paper alleges Martinez’ injury should have been analyzed 

under the test prior to Dawes, which was provided in Maxson 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

v. Michael Todd & Co., supra, and Vencil v. Valmont Indus., 

supra. We disagree.

To adequately address International Paper’s argument, we 

will first briefly describe the relevant case law surrounding 

repetitive trauma injuries and lay out how the Supreme Court 

has addressed such complaints.

In 1991, the Supreme Court decided Maxson v. Michael 

Todd & Co., supra, and Vencil v. Valmont Indus., supra, both 

of which addressed repetitive trauma injuries. In Maxson, a 

divided Supreme Court affirmed the trial court’s finding that 

an employee was not entitled to workers’ compensation benefits for his injury. The court analyzed the employee’s ongoing 

shoulder pain under the statutory definition of an accident, 

which is defined as an “‘unexpected or unforeseen injury 

happening suddenly and violently, with or without human 

fault, and producing at the time objective symptoms of an 

injury.’” Maxson v. Michael Todd & Co., 238 Neb. 209, 211, 

469 N.W.2d 542, 544 (1991), disapproved, Jordan v. Morrill 

County, 258 Neb. 380, 603 N.W.2d 411 (1999). The court then 

cited to its rule from Sandel v. Packaging Co. of America, 211 

Neb. 149, 317 N.W.2d 910 (1982), stating that an accident is 

“sudden and violent” if the injury occurs at an identifiable 

point in time requiring the employee to discontinue employment and seek medical treatment. Maxson, 238 Neb. at 212, 

469 N.W.2d at 544. The court held, however, that the compensation court correctly concluded that “the cumulative effects 

of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within 

a reasonably limited period of time, medical attention and 

the interruption or discontinuance of employment are not the 

product of an accidental injury.” Id. at 213, 469 N.W.2d at 545 

(emphasis supplied).

In Vencil v. Valmont Indus., 239 Neb. 31, 473 N.W.2d 

409 (1991), disapproved, Jordan v. Morrill County, supra, 

a divided Supreme Court once again affirmed the compensation court’s denial of an employee’s claim for workers’ 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

compensation benefits for his back pain. The court conducted 

the same analysis as was done in Maxson v. Michael Todd 

& Co., supra, and again held that “[t]he cumulative effects 

of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within 

a reasonably limited period of time, medical attention and 

the interruption or discontinuance of employment are not the 

product of an accidental injury . . . .” Vencil v. Valmont Indus., 

239 Neb. at 32, 473 N.W.2d at 411.

In 1999, the Supreme Court again addressed repetitive 

trauma injuries in Jordan v. Morrill County, supra. In Jordan, 

the compensation court awarded the employee benefits, finding 

that he suffered a repetitive trauma injury. The compensation 

court review panel reversed the single judge’s decision, finding 

that the employee did not interrupt or discontinue his employment to seek medical treatment. Id. Although the Supreme 

Court affirmed the review panel’s decision, it did so because 

the employee did not interrupt his employment when he sought 

medical treatment. Id. The Supreme Court clarified that “[f]or 

purposes of the Nebraska Workers’ Compensation Act, ‘suddenly and violently’ does not mean instantaneously and with 

force, but, rather, the element is satisfied if the injury occurs 

at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment.” Jordan v. 

Morrill County, 258 Neb. at 389, 603 N.W.2d at 419. The court 

concluded by specifically disapproving Maxson v. Michael 

Todd & Co., supra, and Vencil v. Valmont Indus., supra, on the 

grounds that “interruption of employment” means only discontinuation of employment. Jordan v. Morrill County, 258 Neb. 

at 390, 603 N.W.2d at 419.

The court next addressed the issue in 2003 in its wideranging opinion in Dawes v. Wittrock Sandblasting & Painting,

266 Neb. 526, 667 N.W.2d 167 (2003), disapproved on other 

grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 

N.W.2d 229 (2005). The court cited to the rule iterated above 

in Jordan v. Morrill County, supra, that an accident occurs 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

“‘suddenly and violently’” if the injury occurs at an identifiable point. Dawes v. Wittrock Sandblasting & Painting, 266 

Neb. at 555, 667 N.W.2d at 192. The court expanded on the 

rule, stating, “We have stated that most jurisdictions regard 

the time of an accident as sufficiently definite, for purposes of 

proving [suddenly and violently], ‘if either the cause is reasonably limited in time or the result materializes at an identifiable 

point. . . .’” Id. at 556, 667 N.W.2d at 193 (emphasis in original). The court then found that the record supported the finding that the employee’s injury occurred at an identifiable point 

in time and, thus, was compensable under Jordan v. Morrill 

County, 258 Neb. 380, 603 N.W.2d 411 (1999).

The Supreme Court applied the rule enunciated in Dawes

numerous times in the following years. In Swoboda v. Volkman 

Plumbing, 269 Neb. 20, 29, 690 N.W.2d 166, 173 (2004), the 

court addressed the employee’s repetitive trauma injury under 

the “disjunctive” test provided for in Dawes and found that 

the employee’s injury materialized at an identifiable point in 

time, which occurred when he sought medical treatment for his 

injured shoulders and then discontinued his employment. The 

disjunctive test was also applied in Risor v. Nebraska Boiler, 

277 Neb. 679, 765 N.W.2d 170 (2009), where the court found 

that the employee’s hearing loss materialized at an identifiable 

point in time.

Finally, in Potter v. McCulla, 288 Neb. 741, 748, 851 

N.W.2d 94, 100 (2014), the parties agreed that the employee’s 

injury happened “‘suddenly and violently’” and the only question was which of several successive employers were liable. 

The court focused on defining the identifiable point at which 

an injury manifests itself, and in doing so, it refused to adopt 

tests used by other jurisdictions regarding repetitive trauma 

injuries. It reaffirmed its prior holdings that a repetitive trauma 

injury manifests on the date that the employee has both sought 

medical treatment and missed work due to the injury.

[5] After considering the above case law, it is clear that the 

Supreme Court considers whether a repetitive trauma injury 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

is compensable under the test described in Dawes v. Wittrock 

Sandblasting & Painting, supra, and its progeny, and not the 

limited test provided for in Maxson v. Michael Todd & Co., 

238 Neb. 209, 469 N.W.2d 542 (1991), disapproved, Jordan v. 

Morrill County, supra, and Vencil v. Valmont Indus., 239 Neb. 

31, 473 N.W.2d 409 (1991), disapproved, Jordan v. Morrill 

County, supra. International Paper argues that the facts of the 

present case are more similar to the facts of Maxson and Vencil

and that it is better public policy to deploy the test enunciated in Maxson and Vencil. However, under the doctrine of 

stare decisis, lower courts must follow the precedent of higher 

appellate courts. See Sanford v. Clear Channel Broadcasting, 

14 Neb. App. 908, 719 N.W.2d 312 (2006) (vertical stare 

decisis compels lower courts to follow strictly decisions rendered by courts of higher rank within the same judicial system). Accordingly, we find that the compensation court did 

not err as a matter of law in analyzing Martinez’ repetitive 

trauma injury under the test enunciated in Dawes v. Wittrock 

Sandblasting & Painting, supra, and its progeny.

Martinez’ Repetitive 

Trauma Injury.

Having concluded that the compensation court used the correct test to analyze Martinez’ injury, we find that the court did 

not err in determining that he suffered a compensable repetitive 

trauma injury.

[6] The Nebraska Workers’ Compensation Act defines an 

accident as “an unexpected or unforeseen injury happening 

suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” Neb. Rev. 

Stat. § 48-151(2) (Reissue 2010). Accord Risor v. Nebraska 

Boiler, supra. Under § 48-151(2), an injured worker must 

satisfy three elements to prove an injury is the result of an 

accident: (1) The injury must be unexpected or unforeseen, 

(2) the accident must happen suddenly and violently, and (3) 

the accident must produce at the time objective symptoms of 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

injury. Risor v. Nebraska Boiler, supra. Only the second element is in dispute in this appeal.

[7,8] Under § 48-151(2), “suddenly and violently” does 

not mean instantaneously and with force; instead, the element is satisfied if the injury occurs at an identifiable point in 

time, requiring the employee to discontinue employment and 

seek medical treatment. Risor v. Nebraska Boiler, supra. The 

time of an accident is sufficiently definite if either the cause 

is reasonably limited in time or the result materializes at an 

identifiable point. Id. An employee establishes an identifiable point in time when a repetitive trauma injury occurs if 

the employee discontinues work and seeks medical treatment; 

it does not matter how long the discontinuation of employment lasts. See Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 

N.W.2d 405 (2001).

Here, Martinez suffered a repetitive trauma injury that materialized at an identifiable point. Martinez testified that he felt 

a sharp pain in his shoulder and that his shoulder then locked 

up on November 8, 2017. When he returned to work the next 

day, he informed his supervisor that he could not work, and 

he was taken to see the doctor. Following his doctor visit on 

November 9, Martinez was placed on light duty at work and 

did not use his right arm. Martinez then missed work following his surgery to repair his shoulder. Because Martinez discontinued his employment and sought medical treatment for 

his right shoulder on November 9, his repetitive trauma injury 

materialized at an identifiable point in time.

On appeal, International Paper asserts that November 9, 

2017, was not a significant date; instead, it was an “arbitrarily 

chosen date concocted as an alternative theory of recovery.” 

Brief for appellants at 21. International Paper further asserts 

that Martinez experienced no new symptoms on November 9 

and that his shoulder pain had been present since 2008. While 

Martinez did testify that his shoulder pain began in 2008 and 

continued until 2017, his testimony indicated that the only 

time that he had to miss work to seek medical treatment 
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MARTINEZ v. INTERNATIONAL PAPER CO.

Cite as 27 Neb. App. 933

for his shoulder was on November 9. Therefore, contrary 

to International Paper’s assertion otherwise, November 9 

was a significant date because it is the date that Martinez 

disrupted his employment to seek medical treatment for 

his shoulder.

International Paper also alleges that Martinez sought medical attention for his shoulder prior to November 9, 2017, and 

that he indicated to his medical providers his pain was constant and worsening from 2008 to 2017. Martinez testified 

that he saw his family physician in September for his annual 

physical and that he mentioned he was experiencing shoulder 

pain at that time. He denied that he saw his doctor because of 

his shoulder pain. Further, there is no indication in the record 

that Martinez disrupted his work to see his family physician 

in September. Moreover, as iterated above, Martinez sought 

medical treatment for his shoulder pain on November 9, when 

his pain became unbearable. Accordingly, under the appropriate test for repetitive trauma injuries, Martinez’ injury materialized on November 9.

Based on the record, the compensation court’s determination that Martinez suffered a compensable repetitive trauma 

injury was not clearly wrong.

Reynolds’ Report.

International Paper also argues that the compensation court 

erred in relying on Reynolds’ causation report because it contained errors which made it unreliable. We disagree.

International Paper asserts that Reynolds’ report was not 

credible because it contained the incorrect date of Martinez’ 

injury and incorrectly identified his injury as an acute injury, 

which was contrary to Martinez’ testimony. In his causation 

report, Reynolds stated:

[Martinez] mentioned he had had some occasional soreness off and on over the years with a lot of repetitive 

use-type activities at work. However, he had an acute 

episode roughly six weeks earlier, which does correspond 
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to the November 9, 2017, date when all of the sudden he 

had an increase in pain from an activity at work.

[9] At the hearing, Martinez testified that he had continuous and worsening pain in his shoulder dating back to 2008. 

Martinez also testified that he felt a sharp pain in his shoulder 

on November 8, 2017. Thus, International Paper is correct 

that Reynolds’ report is inconsistent with Martinez’ testimony. 

However, the compensation court noted the discrepancies in 

Reynolds’ report and still found the report persuasive enough 

to carry Martinez’ burden of proof and persuasion. As the trier 

of fact, the compensation court is the sole judge of the credibility of witnesses and the weight to be given their testimony. 

Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 

125 (2002). We defer to the court’s determination and find no 

error in its reliance on Reynolds’ causation report.

CONCLUSION

After reviewing the record, we conclude that the compensation court applied the appropriate test in analyzing Martinez’ 

repetitive trauma injury. The court did not err in finding that 

Martinez suffered a repetitive trauma injury, and it did not err 

in relying on Reynolds’ causation report. We therefore affirm 

the award of the compensation court.

Affirmed.