IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

ALLEN V. BOONE BROTHERS ROOFING

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MARK W. ALLEN, APPELLANT,

V.

BOONE BROTHERS ROOFING, APPELLEE.

Filed December 27, 2016. No. A-16-529.

Appeal from the Workers’ Compensation Court: JULIE A. MARTIN, Judge. Affirmed.

Jon Rehm, of Rehm, Bennett & Moore, P.C., L.L.O., for appellant.

Kelsey J. Paumer, of Prentiss Grant, L.L.C., for appellee.

RIEDMANN and BISHOP, Judges, and MCCORMACK, Retired Justice.

RIEDMANN, Judge.

INTRODUCTION

The workers’ compensation court entered summary judgment in favor of Boone Brothers 

Roofing (Boone Brothers) after finding that Mark W. Allen’s claim for workers’ compensation 

benefits was barred by the statute of limitations. Allen appeals, arguing that an exception to the 

limitations period applies. We disagree and therefore affirm.

BACKGROUND

Allen presented to the emergency room on June 8, 2013, complaining of coughing, 

congestion, shortness of breath, fever, and chills. He reported that over the previous 3 days he had 

been working on a roof breathing in particulate matter from the tar and fumes and had not been 

wearing a mask. He was prescribed an inhaler. He sought follow up treatment on June 10 and 12, 

- 1 -
when he was admitted to the hospital, and was ultimately diagnosed with acute bronchospasm, 

acute bronchitis, hypoxia, and reactive airway disease.

Over the next few months, Allen returned to the hospital on multiple occasions with similar 

complaints of shortness of breath, coughing, and difficulty breathing. He was repeatedly diagnosed 

with reactive airway disease, and various medications and inhalers were prescribed to alleviate his 

symptoms. During these visits, various courses of treatment were also recommended for unrelated 

medical issues including diabetes, high blood pressure, depression, and sleep apnea. On November

25, 2013, Allen presented to a hospital for follow-up care, continuing to complain of shortness of 

breath and coughing. The medical notes explain that he had been diagnosed with reactive airway 

disease in June 2013, and that diagnosis was reiterated on November 25. The notes advise that 

Allen had previously undergone a sleep study related to possible sleep apnea, which recommended 

that he use CPAP and wear oxygen while sleeping.

Allen initially commenced a workers’ compensation action on October 30, 2013. His 

petition alleged that he sustained an injury to his lungs arising out of and in the course of his 

employment with Boone Brothers on June 8, 2013. He claimed that the nature and extent of his 

injury was lung damage. In August 2014, Allen moved to dismiss his complaint without prejudice, 

and the compensation court granted the motion.

On September 8, 2015, Allen refiled his petition, which contained identical allegations as 

his original complaint. Boone Brothers’ answer denied Allen’s allegations and affirmatively 

alleged that the claim was barred by the statute of limitations. Boone Brothers then moved for 

summary judgment. After holding a hearing, the compensation court determined that the statute of 

limitations applied to bar Allen’s claim and granted Boone Brothers’ motion for summary 

judgment. Allen timely appeals to this court.

ASSIGNMENTS OF ERROR

Allen assigns that the compensation court erred in entering summary judgment in favor of 

Boone Brothers.

STANDARD OF REVIEW

We affirm 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. Rice v. Poppe, 293 Neb. 467, 881 N.W.2d 162 (2016). In reviewing a summary judgment, we 

view the evidence in the light most favorable to the party against whom the judgment was granted, 

and give that party the benefit of all reasonable inferences deducible from the evidence. Id.

ANALYSIS

Allen argues that the compensation court erred in concluding that the statute of limitations 

barred his action. We find no merit to this argument.

Regarding questions of law, an appellate court in workers’ compensation cases is obligated 

to make its own decisions. Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 

623 (2014). Statutory interpretation presents a question of law. Id. Determining when the statute 

of limitations starts under Neb. Rev. Stat. § 48-137 (Reissue 2010) presents a question of law. Id.

- 2 -
Section § 48-137 provides in relevant part:

In case of personal injury, all claims for compensation shall be forever barred unless, within 

two years after the accident, the parties shall have agreed upon the compensation payable 

under the Nebraska Workers’ Compensation Act, or unless, within two years after the 

accident, one of the parties shall have filed a petition as provided in section 48-173. . . . 

When payments of compensation have been made in any case, such limitation shall not 

take effect until the expiration of two years from the time of the making of the last payment.

The 2-year limitation period began to run when the last medical payment was made by 

Boone Brothers on July 2, 2013. The operative complaint was not filed until September 8, 2015. 

Therefore, this case is time barred unless it is found to be within an exception that tolls the statute 

of limitations.

There are two exceptions to the statute of limitations: (1) where a “latent and progressive”

injury is not discovered within 2 years of the accident which caused the injury and (2) where a 

material change in condition occurs which necessitates additional medical care and from which an 

employee suffers increased disability. Wissing v. Walgreen Company, 20 Neb. App. 332, 823 

N.W.2d 710 (2012).

Allen first claims that he suffered a latent and progressive injury which became 

increasingly disabling in September 2013. The 2-year limitations period contained in § 48-137 is 

tolled when a claimant suffers a latent and progressive injury. Wissing v. Walgreen Company, 

supra. The statute will not begin to run until it becomes, or should have become, reasonably 

apparent to the claimant that a compensable disability was present. Id. If an employee suffers an 

injury which appears to be slight but which is progressive in its course, and which several 

physicians are unable to correctly diagnose, the worker’s failure to file a claim or bring suit in time 

will not defeat his right to recovery, if he gave notice and commenced the action within the 

statutory period after he learned that a compensable disability resulted from the original accident. 

Id. The mere fact that the employee does not know the full extent of his injury from a medical 

standpoint does not make it latent so as to toll the running of the limitations period, particularly 

where medical facts were reasonably discoverable, and the burden of proving the injury to have 

been latent and progressive is upon the employee. Id. Where an injury is latent and progressive, 

the period of limitation begins to run when the true nature thereof is first discovered by the 

claimant. Id.

In the case at bar, Allen’s injury was not latent nor progressive. He sought compensation 

for the same injury, with the exact same allegations, in both his 2013 complaint and his 2015 

complaint. He first sought medical treatment due to a lung injury as a result of inhaling particulate 

matter from the tar and fumes on his worksite in June 2013. According to his medical records, he 

was initially diagnosed with reactive airway disease at that time, and although varying courses of 

treatment were recommended, Allen’s diagnosis never changed. There is no evidence that 

physicians were unable to correctly diagnose Allen’s condition. Allen points to the November 

2013 recommendation that he wear oxygen at night in support of his argument that his condition 

was latent and progressive. This recommendation, however, was the result of a sleep study he 

underwent relating to sleep apnea, not as a recommended course of treatment for reactive airway 

disease that was progressing in nature.

- 3 -
The injury for which Allen now seeks compensation is the same injury for which he sought 

compensation in his 2013 complaint. The allegations of the two complaints are identical, so Allen 

knew in 2013 that he had a compensable injury. The fact that he did not know the full extent of his 

injury does not excuse his failure to timely file a complaint or continue his then existing action. 

As a result, the first exception to the 2-year limitations period does not apply.

The second exception to the statute of limitations occurs when there is a material increase 

in disability. See Lenz v. Central Parking System of Neb., 288 Neb. 453, 848 N.W.2d 623 (2014). 

In that situation, a petition must be filed within 2 years from the time the employee knows or is 

chargeable with knowledge that the employee’s condition has materially changed, and there has 

been such a substantial increase in disability as to entitle the employee to additional compensation. 

Id. Stated another way, the question is whether the employee’s petition was filed within 2 years of 

a change in condition that (1) was material and (2) resulted in a substantial increase in disability 

as to entitle him to additional compensation. See id.

This situation arises, however, when there is no dispute about the compensable nature of 

the injury which the worker sustained, the employer has voluntarily paid compensation to the 

injured worker, and the employee is now seeking additional compensation in the event of a material 

increase in disability resulting from the injury. See White v. Sears, Roebuck & Co., 230 Neb. 369, 

431 N.W.2d 641 (1988). Those are not the circumstances in the present case.

Here, Boone Brothers disputes Allen’s claim that his lung injuries are compensable. 

Although Boone Brothers made a single payment for Allen’s initial visit to the emergency room, 

it did not make any additional payments for Allen’s subsequent medical treatment. As a result, 

Allen filed his initial complaint on October 30, 2013. We do not interpret the payment of the single 

medical bill as indication that there was no dispute about the compensable nature of Allen’s injury, 

especially since Allen filed suit four months later. Voluntary payments of workers’ compensation 

benefits do not constitute an admission of liability by an employer. McBee v. Goodyear Tire & 

Rubber Co., 255 Neb. 903, 587 N.W.2d 687 (1999).

More importantly, Allen is not seeking additional compensation due to an increase in 

disability; rather, he is seeking compensation related to his original injury of June 8, 2013, as 

evidenced by the allegations contained in the operative complaint. Not only does Allen not assert 

an increase in disability in his complaint, but the record, itself, is void of any evidence from either 

Allen or a medical provider that he has suffered a substantial increase in disability. Consequently, 

we find that this exception to the 2-year statute of limitations does not apply, and Allen’s claim is 

therefore time barred.

CONCLUSION

We conclude that the compensation court did not err in holding that the statute of 

limitations bars Allen’s claim for compensation benefits and granting summary judgment in favor 

of Boone Brothers. We therefore affirm.

AFFIRMED.

- 4 -