Recently Asked Questions in Nebraska Workers' Compensation
From Issues Addressed in Recent Nebraska Cases

RECENTLY ASKED QUESTIONS

 

FROM ISSUES ADDRESSED IN RECENT NEBRASKA CASES

 

Supreme Court

 

Q: Is evidence that employee was prescribed medications at the time of trial and that doctors were recommending future procedures sufficient for the Court to award an employee the right to future medical care.

 

A:  No. In Tchikobava v. Albatross Express 293 Neb. 223 (2016), the Supreme Court determined that evidence that doctors were prescribing medications to employee and recommending future procedures is insufficient to support an award of future medical care.

 

In Tchikobava, evidence at trial established that the employee was prescribed ongoing medications by his doctors that were related to the accident at the time of trial. There were also multiple doctors who recommended that employee undergo a bariatric procedure. The Trial Court concluded that employee was not entitled to future medical care because there was no evidence in the record that employee would need the prescriptions and the future. The Court also concluded that there was no causal connection between the need for the bariatric procedure and work accident. The employee appealed and the Supreme Court affirmed the Trial Court’s decision.

 

Q: Is the employee’s testimony sufficient evidence on its own to support an award of temporary disability compensation absent treating records over the same period in question?

 

A: Maybe. In Tchikobava, the Supreme Court determined that employee’s testimony by itself could support an award of temporary disability benefits on its own absent medical records of treatment during the same period.

 

In Tchikobava, the employee was injured on August 9, 2010. He sought care immediately after the accident. Medical records available to the Trial Court at trial suggest that the employee treated consistently from August 9, 2010 until December 8, 2010 and then did not treat again until April 30, 2014. He was placed at maximum medical improvement on May 2, 2014.

 

The only evidence at trial of any treatment or employee’s ability to work between December 8, 2010 and May 2, 2014 was employee’s own testimony. He testified that he sought consistent treatment with his primary care physician during that period of time and that the primary care physician was consistently refilling his prescriptions. The treatment records from the primary care physician were not offered in to evidence at trial.

 

The Trial Court awarded temporary total disability compensation from August 10, 2010 to December 8, 2010. It refused to award employee temporary total disability compensation from December 9, 2010 to May 1, 2014 because there were no medical records of any treatment employee received during that period.

 

The Supreme Court reversed the Trial Court’s decision in regards to the Trial Court’s refusal to award temporary total disability compensation from a December 9, 2010 to May 1, 2014 and remanded it for further consideration. The Supreme Court reasoned that medical records are helpful in making the determination of and employee’s disability but that the Trial Court can also use the testimony of the employee absent medical records. The Supreme Court instructed the Trial Court to weigh the substance and credibility of employee’s testimony in order come to a conclusion on whether employee was temporarily and totally disabled from December 9, 2010 to May 1, 2014.

 

 

Q: Does an injury stemming from a non-mandatory work-related dinner arise out of and in the course of an employee’s employment?

 

A: Maybe. In Jacobitz v. Aurora Cooperative, 291 Neb. 349 (2015), the Supreme Court determined that an injury that occurs at a non-mandatory work-related activity may be an accident arising out of and in the course of the employee’s employment if the employer received a substantial and direct benefit from the employee’s attendance at the event.

 

In Jacobitz, the employer held a dinner for some of the company’s clients on the date of the accident and injury. There were only a select few of the employer’s employees who were invited to attend the event including the injured employee. Evidence at trial conflicted whether the injured employee was required to attend the event.

 

The employee attended the event. Near the end of the event, the employee helped some of the supervisors for the employer move a smoker used at the dinner event to a storage facility. The employee decided to ride in the bed of his manager’s pick-up truck. For reasons unknown to either the employee or the manager, the employee fell out of the bed of the pick-up truck sustaining injury.

 

The Trial Court determined that, regardless of whether the employee felt it was required to attend the event, the employee’s injury arose out of and in the course of his employment because the employee’s assistance during the dinner was a “substantial benefit” to the employer. The Supreme Court reversed the decision concluding that it was not sufficient that the alleged benefit be “substantial,” and that it must be “substantial and direct” before the injury would arise out of and in the course of the employee’s employment.  The court referred to both standard and law dictionary definitions of “direct”, and then remanded the matter to the trial court for a determination of whether the benefit derived by the employer was both “substantial and direct.”

 

Q: Whether the Trial Court can consider new evidence of the employee’s current psychiatric treatment in a Further Award hearing after the Trial Court determined that the employee had reached maximum medical improvement in the Court’s initial Award?

 

A: Yes. In Gardner v. International Paper Destr. & Recycl., 291 Neb. 415 (2015), the Supreme Court determined that the Trial Court could consider evidence of the employee’s current psychiatric treatment in a Further Award hearing after the Trial Court concluded that the employee reached maximum medical improvement for psychiatric care in the Court’s initial Award.

 

In Gardner, the employee sustained both physical and psychiatric injuries arising out of and in the course of his employment. The case originally went to trial and the Trial Court determined that the employee aggravated a preexisting psychiatric condition during the accident but that the employee had returned to preexisting baseline at the time of trial and had reached maximum medical improvement.

 

The employer filed for a modification of the Award alleging that employee suffered from decreased impairment or disability compared to disability suffered at the time of the Award. At the hearing on the Further Award, the employee offered medical reports from two doctors that discussed employee’s ongoing psychiatric care after the initial Award. The employer objected to those reports arguing that the nature and extent of employee’s disability for his psychiatric injury had already been determined in the previous Award and could not be re-litigated.

 

The Trial Court overruled employer’s objection and permitted the psychiatric reports into evidence. The Trial Court used employee’s psychiatric treatment, in combination with treatment for plaintiff’s physical injuries, to conclude that employee was permanently and totally disabled as a result of the accident.

 

The employer appealed arguing that the nature and extent of employee’s psychiatric disability had been determined in the initial Award. The Supreme Court disagreed. The Supreme Court recognized that there are many issues that could not be re-litigated in a modification hearing like compensability of the injury, employer/employment relationship, notice, etc. but that the purpose of modification of an award was to determine whether the employee’s disability had increased or decreased after the initial Award was entered.  The Further Award of permanent total disability was affirmed.

 

Court of Appeals

 

Q: Does an assault by a co-employee at work arise out of and in the course of the employee’s employment when the sole reason for the assault was unrelated to work?

 

A: No. In McDaniel v. Western Sugar Cooperative, 23 Neb. App. 35 (2015), the Court of Appeals determined that the employee’s injuries caused by an assault by a co-employee, did not arise out of and in the course of employment because the reason for the assault did not relate to work-related duties.

 

In McDaniel, the employee was working for the employer when he was approached by a co-employee. The Co-employee referred to the employee as child molester and began assaulting him. The employee sustained injuries as a result of the assault.

 

The assault was precipitated by co-employee receiving knowledge of the employee’s criminal history. The employee and co-employee did not know each other outside of their shared employment.

 

The Trial Court determined that the injuries did not arise out of and in the course of the employee’s employment because the reason for the assault was not related to work. The Court of Appeals affirmed recognizing that that the employee and co-employee did not have a relationship outside of work and that the co-employee could have realistically carried out the assault anywhere including outside of work.

 

 

Q: Whether a treating doctor’s failure to provide recommendations on future medical care amounts to fraud so as to allow the Court to set aside approved settlement documents and dismissal of the injured workers’ claim?

 

A: No. In Hunt v. Pick’s Pack-Haulers, Inc., 23 Neb. App. 278 (2015), the Court of Appeals determined that a treating doctor’s failure to provide recommendations on the need for future medical care was not fraud, and thus there was no basis to set aside a prior settlement which closed future medical benefits in workers compensation.

 

In Hunt, the employee suffered a compensable right arm injury on August 30, 2000. He eventually underwent surgery and was released to maximum medical improvement with permanent impairment. His treating physicians did not comment on employee’s need for future medical care after being released to maximum medical improvement.

 

The employee entered into a lump sum settlement agreement with the employer that paid plaintiff the total value of the permanent partial disability compensation the employee was owed plus $1,000.00 of additional consideration. The settlement agreement signed by the employee intended to waive all future right to indemnity and medical benefits related to the employee’s work accident.

 

It was determined, nearly ten (10) years later, that the employee was in need of surgery that may be related to the accident and injury. The employee filed a motion to set aside the prior settlement agreement arguing that the treating doctors committed constructive fraud by not advising him of the need for future surgery at the time he was released to maximum medical improvement.

 

The Trial Court granted the employer’s motion for summary judgment concluding that the treating physician did not commit fraud by failing to advise the employee on the possible need for future medical care after he reached maximum medical improvement. The Court of Appeals affirmed the Trial Court’s granting of the summary judgment motion.

 

 

Q:  Is the employer responsible for the cost of medical treatment provided by attending doctors which provides only partial relief of the employee’s symptoms?

 

A:  Maybe not.  In Yost v. Davita, Inc., 23 Neb. App. 482 (2015), a trial resulted in an Award with a  finding that the employee had reached maximum medical improvement for a back injury, had sustained a 35% loss of earning capacity, and was entitled to future medical treatment for the back injury.  The employee continued to obtain medical treatment for the back injury which eventually led an attending physician to recommend a spinal cord stimulator trial.  That trial was not authorized by the employer, but was pursed by the employee and ultimately a spinal cord stimulator was implanted by her attending physicians.  A second trial was conducted on an Application for modification of the original Award, with one of the issues presented being whether the employer should be required to pay for the spinal cord stimulator.

 

There was conflicting evidence from doctors regarding whether claimant’s injuries and back condition warranted a spinal cord stimulator.  The court cited three medical opinions to the effect that a spinal cord stimulator was not reasonable treatment for the employee.  There was also evidence from the doctors who recommended and implanted the spinal cord stimulator to the effect that it was reasonable treatment.  Plaintiff testified that the spinal cord stimulator provided relief of leg pain and numbness, but it had not resulted in relief of her primary complaint of back pain. 

 

The trial court was persuaded by the testimony of those doctors who felt a spinal cord stimulator was not reasonable treatment for the employee’s injuries.  The trial court was also persuaded by the limited relief of symptoms attributed to the spinal cord stimulator.  The trial court concluded that it “[did] not believe that for the cost incurred the spinal cord stimulator was reasonable treatment in light of the limited benefit it provided.”

 

The Nebraska Court of Appeals affirmed that finding and the employer was not required to pay for the spinal cord stimulator.  The appellate court noted that three factors must be established before payment for a medical service is required: that the service (1) is reasonable, (2) is required by the work injury, and (3) will relieve pain or promote or hasten the employee’s restoration to health and employment.  The appellate court noted that whether medical treatment is reasonable or necessary to treat an employee’s injuries is a question of fact, and that the appellate court will not substitute its judgment for that of the trial judge on questions of fact.  As there was evidence to support the finding of the trial judge, that finding was affirmed on appeal.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.