Sweeney v. Kerstens & Lee, Inc.

Decision Date22 October 2004
Docket NumberNo. S-03-525.,S-03-525.
CourtNebraska Supreme Court
PartiesROBERT SWEENEY, APPELLANT, v. KERSTENS & LEE, INC., AND ROYAL & SUNALLIANCE INSURANCE COMPANY, APPELLEES.

Dirk V. Block, Jerylyn R. Bridgeford, and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellant.

Mark J. Peterson and Joseph M. Colaiano, of Koley Jessen, P.C., L.L.O., for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

The plaintiff, Robert Sweeney, was injured in an accident that arose out of and was in the course of his employment, and was awarded workers' compensation benefits. Sweeney became clinically depressed, however, after his vocational rehabilitation counselor concluded that Sweeney's loss of earning capacity was only 55 to 60 percent. The question presented in this appeal is whether Sweeney's depression, which resulted from a disappointing vocational rehabilitation report, was proximately caused by Sweeney's original accident.

BACKGROUND

Sweeney was injured in 1997 in an accident that the parties agree arose out of and was in the course of Sweeney's employment with the defendant, Kerstens & Lee, Inc. Sweeney had another accident in 1998, and the Workers' Compensation Court found that this accident also arose out of and was in the course of Sweeney's employment. Sweeney suffered from numbness and pain in his neck and arms as a result of his accidents. In March 2000, the single judge of the Workers' Compensation Court entered an award for temporary total disability benefits, permanent partial disability benefits, and payment of medical expenses. Because Sweeney had not yet reached maximum medical improvement, the single judge reserved ruling on Sweeney's entitlement to vocational rehabilitation.

In December 2000, Kerstens & Lee applied for modification of the award, alleging that Sweeney had reached maximum medical improvement. In response, Sweeney sought continued disability benefits and vocational rehabilitation. However, that motion for modification was dismissed without prejudice, and the parties agreed that Sweeney would be evaluated by Michael Newman, a vocational rehabilitation counselor. Sweeney participated in vocational rehabilitation, with little success. Newman eventually authored a loss of earning capacity report, dated January 20, 2002, that concluded Sweeney's future loss of earning power would "range from 55% to 60%."

Sweeney became severely depressed, and in the spring of 2002, he attempted suicide. Sweeney's neurosurgeon referred him to Dr. William Marcil, a psychiatrist, who diagnosed Sweeney with "Major Depression, single episode and Anxiety disorder, not otherwise specified." Marcil opined that the depression was "due to the significant degree of stress and loss that has evolved since his injury to his neck approximately three years ago." Marcil stated that Sweeney "has become demoralized, angry and threatened that he will not get the financial assistance that he feels is due to him given the residuals of his physical condition." Marcil concluded that "Sweeney is not capable of gainful employment at this time due to his psychiatric problems and his inability to handle any additional stress that may be imposed on him within a work environment." Based on Marcil's opinion, Newman stated that "my opinion concerning . . . Sweeney's earning capacity would now change to a loss of 100%."

At Kerstens & Lee's request, Sweeney was evaluated by Dr. Bruce Gutnik, another psychiatrist. Gutnik opined that at the time of his evaluation of Sweeney, his diagnosis was "Major Depressive Disorder, single episode, in partial remission." Gutnik stated that "Sweeney's depressive episode was triggered by a court ruling in approximately May 2002 that his disability rating was `58%' and his understanding that this meant his benefits would be time limited." (Although Gutnik's opinion refers to a "court ruling" in "May 2002," it is apparent from the record that Gutnik intended to refer to Newman's January 20 loss of earning capacity report, and the parties have argued on that basis.) Gutnik further opined that Sweeney's "single episode of Major Depressive Disorder was not triggered, in my opinion, with a reasonable degree of medical certainty by pain or disability, but rather, by unhappiness with a court ruling."

Sweeney's case came before the single judge on another application by Kerstens & Lee to modify the award. The single judge found that Sweeney had reached maximum medical improvement and had suffered a total earning power loss of 60 percent, 55 percent of which was attributable to his 1998 accident and injury. The single judge ordered cessation of Sweeney's temporary total disability benefits and awarded permanent partial disability benefits. However, the single judge rejected Sweeney's claim that his depression rendered him totally disabled and disallowed Sweeney's claim for payment of psychiatric care expenses. The single judge reasoned:

The Court finds the opinion expressed by Dr. Gutnik to be persuasive. Dr. Marcil speaks of how the plaintiff has been progressively concerned over his lack of returning to baseline physically and being unable to resume the work level that he previously enjoyed. Dr. Marcil was of the opinion that the plaintiff's self concept in general has been greatly transformed due to his lack of productivity and his perceived inadequacies compared with how he performed before the injury. However, the Court has noted that in the previous spring, Mr. Newman reported that Mr. Sweeney had been fully cooperative and compliant in working with Mr. Newman to develop a vocational plan. Mr. Newman reported that the plaintiff consistently responded in a positive manner and demonstrated a strong commitment for returning to work. This positive attitude which Mr. Newman noted in the plaintiff suggests to me that it was indeed Mr. Newman's opinion and not the losses suffered by the plaintiff as a result of his accident and injury that caused the plaintiff to suffer the depression and anxiety.

The review panel of the Workers' Compensation Court affirmed the decision of the single judge, without comment.

The Nebraska Court of Appeals reversed the judgment of the Workers' Compensation Court review panel. Sweeney v. Kerstens & Lee, Inc., 12 Neb. App. 314, 672 N.W.2d 257 (2003). The Court of Appeals stated, "[E]ven if we assume that Sweeney's depression resulted from Newman's initial opinion, Sweeney's psychiatric injuries are nevertheless still compensable. The Nebraska Supreme Court has stated that when an injury arises out of a person's employment, every natural consequence that flows from the injury likewise arises out of the employment." Id. at 319-20, 672 N.W.2d at 262. The court concluded that "without Sweeney's injury, there would have been no loss of earning capacity and thus no depression resulting from that loss." Id. at 320, 672 N.W.2d at 262. Consequently, the Court of Appeals concluded that the Workers' Compensation Court had erred in finding that Sweeney's depression and medical bills for treatment of depression were not compensable. Id. We granted Kerstens & Lee's petition for further review.

ASSIGNMENTS OF ERROR

Kerstens & Lee assigns that the Court of Appeals erred in (1) finding that the single judge committed clear error in adopting the expert opinion of Gutnik and finding that Sweeney's depressive disorder and the medical bills resulting from the treatment of said disorder were not related to accidents and resulting injuries sustained while Sweeney was employed by Kerstens & Lee and (2) awarding attorney fees.

STANDARD OF REVIEW

[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2002), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370 (2004).

ANALYSIS

[2,3] We note, initially, that the parties have premised their arguments on appeal as if Gutnik's opinion regarding the causation of Sweeney's depression is controlling. When the record in a workers' compensation case presents conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court. U S West Communications v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998). It is the role of the Nebraska Workers' Compensation Court as the trier of fact to determine which, if any, expert witnesses to believe. Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004). In this case, the compensation court found Gutnik's opinion to be more credible or persuasive. The Court of Appeals concluded that even assuming Gutnik's opinion was correct, Sweeney's depression was nonetheless compensable. Sweeney v. Kerstens & Lee, Inc., 12 Neb. App. 314, 672 N.W.2d 257 (2003). Because we do not substitute our judgment regarding the credibility of expert witnesses for that of the compensation court, and because the parties have recognized that principle, the issue before us is whether Gutnik's opinion supports the Court of Appeals' determination that Sweeney's depression was proximately caused by his original work-related injury.

[4,5] It is well settled in Nebraska workers' compensation law that a worker is entitled to recover compensation for a mental illness if it is a proximate result of the worker's injury and results in disability. Kraft v. Paul Reed Constr. & Supply, 239 Neb. 257, 475 N.W.2d 513 (1991); Johnston v. State, 219 Neb. 457, 364 N.W.2d 1 (1985); Davis v. Western Electric, 210 Neb. 771, 317 N.W.2d 68 (1982); Cardenas v. Peterson...

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