Thiele v. Select Med. Corp.

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Nebraska Supreme Court Advance Sheets
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 occu-
pational disease arising out of and occurring in the course of employ-
ment 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 employ-
ment 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 dis-
ease 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/
10/14/2026 08:45 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
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 character-
istics 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, alleg-
ing 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 suf-
fered 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
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 non-
compensable 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 nor-
mally 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 individu-
als could go to very few locations. Under these directed health
measures designed to minimize inperson interaction, gather-
ings were prohibited and schools, daycare facilities, gymnasi-
ums, 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
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 individu-
als in Thiele’s home resided in the basement, and Thiele had
little or no direct contact with them. Thiele was the only per-
son 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 confirm-
ing 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 COVID-
19 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 addi-
tion 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. Gonzalez-
Castellon 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 physi-
cians, 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 dif-
ferent 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 contract-
ing 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 COVID-
19 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 dis-
ease and preventable morbidity in health care workers. In par-
ticular, 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 employ-
ments 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 “[COVID-
19] 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 con-
solidated facts that it considered undisputed, including:
12. According to [Drs.] Haroon and . . . Gonzalez-
Castellon, 	[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 gen-
eral 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 COVID-
19 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
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 com-
pensable “[o]ccupational disease” and excludes therefrom non-
compensable “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 pan-
demic 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 inci-
dence of COVID-19 in the community at the time of the hear-
ing 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
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 sum-
mary 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 occu-
pational 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 judg-
ment, 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 COVID-
19 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 hear-
ing 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
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 noncompen-
sable 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 occu-
pational 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 employ-
ment). 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, occupa-
tion, process, or employment and excludes all ordinary dis-
eases 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 con-
ditions 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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THIELE v. SELECT MED. CORP.
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 employ-
ment 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 deter-
mine 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’ compensa-
tion 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 “ordi-
nary 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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Nebraska Supreme Court Advance Sheets
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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 dis-
ease because the worker’s particular trade, occupation, proc-
ess, 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 exami-
nation gloves suffered occupational disease); Osteen v. A. C.
and S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981) (determin-
ing that asbestos worker who contracted peritoneal mesotheli-
oma 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 occu-
pational 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 suf-
fered occupational disease).
Diseases that exist in the larger population, such as tuber-
culosis and malaria, can be considered occupational diseases.
Focusing on infectious disease, courts have found numerous
conditions in workplaces support the award of compensa-
tion as occupational diseases, especially in hospital or inti-
mate 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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THIELE v. SELECT MED. CORP.
Cite as 316 Neb. 338
(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 employ-
ment 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 impedi-
ment to Thiele’s request for compensation due to COVID-
19 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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THIELE v. SELECT MED. CORP.
Cite as 316 Neb. 338
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 COVID-
19 virus “is anywhere people are” and “it is a disease of ordi-
nary life,” and that therefore, recovery for Thiele’s injury suf-
fered 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 work-
ers 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 gener-
ally in the period of March and April 2020. Accordingly, at
this stage, we do not comment further on the foregoing ele-
ments 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 analy-
sis, 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 consider-
ation. 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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THIELE v. SELECT MED. CORP.
Cite as 316 Neb. 338
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 ordi-
nary 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 deter-
mine 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 work-
ers . . . 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 com-
munity, 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 gener-
ally. 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 employ-
ment, 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 infec-
tion 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 evi-
dence in a light most favorable to Thiele and giving her the
benefit of all reasonable inferences deducible from the evi-
dence presented at the summary judgment hearing, we deter-
mine there is a genuine issue of material fact whether Thiele’s
COVID-19 infection contracted in early 2020 was a compen-
sable 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 proce-
dure 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]ccu-
pational 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 occupa-
tional disease when she became infected with the COVID-
19 virus in April of 2020, and she alleges that acute post-
COVID-19 symptoms have prevented her from returning to
work. Nebraska appellate courts have not previously consid-
ered 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 rea-
soning 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 occu-
pational disease, nor is there consensus on the proper frame-
work for determining when a contagious disease falls within
the statutory exclusion for ordinary diseases of life.
Because I disagree with the analytical framework pro-
posed 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 statu-
tory definitions of the term vary widely from state to state. 4
Some statutes contain elaborate definitions, others more gen-
eral 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 occu-
pations, while others combine a list-type schedule with a more
general definition. 6 Some statutory schemes include presump-
tions 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 preponder-
ance of the evidence, that either an “accident” or an “occupa-
tional 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 employ-
ment 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 dis-
eases in a few select industries, 16 but retained a blanket exclu-
sion for any contagious or infectious diseases. 17
In 1943, the Legislature amended the workers’ compensa-
tion act to allow broader recovery for injuries caused by occu-
pational 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 dis-
ease which is due to causes and conditions which are
characteristic of and peculiar to a particular trade, occu-
pation, process or employment and to exclude all ordi-
nary 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 disable-
ment 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 previ-
ous 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 defini-
tion 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 subse-
quent 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 read-
ily 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 consider-
ing 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 occupa-
tional 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 articu-
lated 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 leptospiro-
sis 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, alleg-
ing that emphysema was an occupational disease acquired in
the course of his employment. We discussed the medical evi-
dence 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 undis-
puted 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 derma-
titis 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 evi-
dence 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 prin-
ciples 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 dishwash-
ing 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’ com-
pensation benefits, alleging that his death was caused by an
occupational disease. There was medical evidence to sup-
port 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 sup-
porting the conclusion that mesothelioma was not an ordinary
disease of life, because “the incidence of peritoneal meso-
thelioma 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 occu-
pational 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 prin-
ciples 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 iden-
tified in Wuhan, China, in “late 2019” and then became a
global pandemic “spread[ing] around the world [and] infect-
ing 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 pre-
dicted 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 stud-
ies finding that health care workers who were exposed to
COVID-19 patients “had [an] increased risk of covid [com-
pared to] the general population early on in the pandemic,
given their profession” and that “[f]rontline healthcare work-
ers 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 asymp-
tomatic 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 “con-
firmed 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 “pre-
vent, limit, or slow the spread of COVID-19.” A press release
dated March 29, 2020, reported that COVID-19 was spread-
ing 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 pro-
vide 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 analy-
sis by noting the employer did not contest that Thiele con-
tracted 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 char-
acteristic 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, emphy-
sema 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 respira-
tory 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 ordi-
nary diseases of life. In that regard, it noted Sauer’s unre-
futed 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 argu-
ment,” 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 con-
tinents 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 ordi-
nary 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 plu-
rality 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 dis-
trict 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 opin-
ions 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 facili-
ties 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, confer-
ence rooms, theaters, libraries, and other confined spaces in
Douglas County.
Sauer’s report referred to the cumulative number of con-
firmed 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 cur-
rent 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 dis-
ease 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 exis-
tence 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 argu-
ment 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, COVID-
19 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 con-
tradict 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 occu-
pational disease under Nebraska law, one must show both
that “‘the cause and conditions of the disease [are] character-
istic 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 rul-
ing 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 occupa-
tional disease literature generally.
The plurality’s lead opinion states:
As we read § 48-151(3), to be compensable as an occu-
pational 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 dis-
ease 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 symp-
toms 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 compet-
ing rules in future cases. Moreover, because Thiele’s opera-
tive complaint alleges that her disability is due to “[a]cute
postCovid symptoms,” including “cardiovascular issues, neu-
rological issues, [and] cognitive impairments,” it is not clear to
me whether the plurality’s new rule would require the compen-
sation 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 occu-
pational disease, the proper focus is on the period of expo-
sure 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 occupa-
tional 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 dis-
ease 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 compensabil-
ity 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 COVID-
19 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 occupa-
tional disease supports the plurality’s new temporal require-
ment 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 ordi-
nary 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 com-
mon 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 expo-
sure 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 compre-
hensive timeline that included the period just before Thiele
contracted the disease, and his medical opinion that COVID-
19 is an ordinary disease of life was not limited to any par-
ticular 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 errone-
ously 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.