Damme v. Pike Enters., Inc.

• Citation: 856 N.W.2d 422
• Decision Date: 05 December 2014
• Docket Number: No. S-14-304,S-14-304
• Parties: Patricia M. Damme, appellee, v. Pike Enterprises, Inc., appellant.
• Court: Nebraska Supreme Court

856 N.W.2d 422

Patricia M. Damme, appellee

v.Pike Enterprises, Inc., appellant.

No. S-14-304

Supreme Court of Nebraska.

Filed December 5, 2014.

Christopher A. Sievers, of Timmermier, Gross & Prentiss, for appellant.

Elaine A. Waggoner, of Waggoner Law Office, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error.A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. Workers' Compensation: Evidence: Appeal and Error.In testing the sufficiency of the evidence to support the Workers' Compensation Court's findings, an appellate court considers the evidence in the light most favorable to the successful party. The appellate court resolves every controverted fact in the successful party's favor and gives that party the benefit of every inference that is reasonably deducible from the evidence.

3. Workers' Compensation: Appeal and Error.The Workers' Compensation Court's factual findings have the effect of a jury verdict, and an appellate court will not disturb them unless they are clearly wrong.

4. Workers' Compensation: Appeal and Error.An appellate court independently reviews questions of law decided by a lower court.

5. Workers' Compensation.Whether to recognize a nonstatutory defense in a workers' compensation case presents a question of law.

6. Workers' Compensation: Proof.In a workers' compensation case involving a preexisting condition, the claimant must prove by a preponderance of evidence that the claimed injury or disability was caused by the claimant's employment and is not merely the progression of a condition present before the employment-related incident alleged as the cause of the disability.

7. Workers' Compensation.A workers' compensation claimant can recover benefits when an injury, arising out of and in the course of employment, combines with a preexisting condition to produce disability, even if no disability would have occurred absent the preexisting condition. The “lighting up” or acceleration of a preexisting condition by an accident is a compensable injury.

8. Workers' Compensation.Causation of an injury or disability presents an issue of fact.

9. Workers' Compensation: Expert Witnesses.Unless an injury's nature and effect are plainly apparent, a workers' compensation claimant must establish the causal relationship between the employment and the injury or disability by expert opinion.

10. Workers' Compensation: Expert Witnesses.Although a claimant's medical expert does not have to couch his or her opinion in the magic words “reasonable medical certainty” or “reasonable probability,” the opinion must be sufficient to establish the crucial causal link between the claimant's injuries and the accident occurring in the course and scope of the claimant's employment.

11. Expert Witnesses: Physicians and Surgeons: Appeal and Error.An appellate court examines the sufficiency of a medical expert's statements from the expert's entire opinion and the record as a whole.

12. Workers' Compensation: Expert Witnesses: Physicians and Surgeons.The Workers' Compensation Court is the sole judge of the credibility and weight to be given medical opinions, even when the health care providers do not give live testimony.

13. Workers' Compensation: Expert Witnesses: Physicians and Surgeons.Resolving conflicts within a health care provider's opinion rests with the Workers' Compensation Court, as the trier of fact.

14. Workers' Compensation: Appeal and Error.When the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the Workers' Compensation Court.

15. Workers' Compensation.Under the Nebraska Workers' Compensation Act, both temporary and total disability benefits are awarded for diminished employability or impaired earning capacity and do not depend on a finding that the claimant cannot be placed with the same employer or a different one.

16. Workers' Compensation.The level of a worker's disability depends on the extent of diminished employability or impairment of earning capacity, and does not directly correlate to current wages.

17. Workers' Compensation: Torts.The Nebraska Workers' Compensation Act constitutes a compromise between the rights of employers and employees. Under the act, employees give up the right to complete compensation that they might recover under tort law in exchange for no-fault benefits that they quickly receive for most economic losses from work-related injuries.

18. Workers' Compensation: Legislature: Public Policy.Because the Nebraska Workers' Compensation Act reflects a legislative balancing of rights, defenses that defeat a worker's right to seek or receive disability benefits for a work-related injury are a matter of public policy that the Legislature should decide.

19. Workers' Compensation: Prisoners: Proof.If a workers' compensation claimant can prove a loss of earning capacity, his or her incarceration after sustaining a compensable injury is not an event that bars the claimant's receipt of disability benefits, absent a statute requiring that result.

20. Workers' Compensation.Total disability exists when a workers' compensation claimant is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the claimant's mentality and attainments could perform.

21. Workers' Compensation: Testimony.Although medical restrictions or impairment ratings are relevant in determining a claimant's disability, the Workers' Compensation Court can rely on a claimant's testimony regarding his or her own limitations to determine the extent of the claimant's disability.

CONNOLLY, J.

SUMMARY

This workers' compensation case presents an issue of first impression in Nebraska: whether a claimant's incarceration after sustaining a compensable injury should bar the claimant from recovering temporary total disability benefits while she is incarcerated. The appellant, Pike Enterprises, Inc. (Pike), also argues that the court erred in finding a causal connection between the appellee's alleged injury in October 2009 and her back surgery in January 2013, and in awarding future medical benefits.

We agree with the court that after a claimant sustains a compensable injury resulting in total disability, her later incarceration does not bar her receipt of benefits. The evidence sufficiently supported the court's conclusion that Pike sustained

a new injury that aggravated an existing back condition and caused her symptoms of constant pain and that her surgery in January 2013 was necessary to treat the injury. We affirm the trial court's award.

BACKGROUND

Historical Facts

The appellee, Patricia M. Damme, has a history of degenerative disk disease. It started in 1995, when her lower back problems required a lumbar laminectomy (removal of the spongy material between the disks) at the L4–5 level. She also has a history of mental health issues and illicit drug use, for which she has been regularly treated by a psychiatrist.

In 2001, boxes fell on her while working on a job, injuring her back and neck. This injury required a cervical diskectomy and fusion at the C5–6 level. In a lump-sum settlement, the employer agreed to pay her for an 8–percent whole-body permanent partial disability. In 2002, she began receiving disability benefits from Social Security because of her psychiatric problems. She said she continued to work because keeping busy helped her deal with her psychiatric problems.

In January 2004, a semitrailer truck hit her vehicle. At the hospital, she reported mild tenderness in her lower quadrant. The hospital physician reported mild degenerative disk disease above and below her C5–6 fusion but no complications from the accident.

In 2006, after a fall at a store, Damme experienced increased neck pain and pain in her lower back that radiated into her left thigh. An MRI of her cervical and lumbar spine showed that the cervical fusion was intact and that her lumbar spine had some degenerative disk disease, but that the spacing between the disks was within the normal range. The physician did not recommend surgical intervention but referred her to a physical therapist.

In 2008, while working for her previous employer, she tripped and fell against a wall, experiencing neck pain. About a month later, while reaching up, she experienced severe neck pain, which improved with time but remained constant and variable in intensity. The cause of her neck and shoulder pain

was not clear, and she was referred to a physical therapist and released to return to work with some restrictions. In 2009, her physician determined that she had sustained a 5–percent impairment of her right upper extremity.

In June 2009, Damme began working for Pike, which owns a McDonald's restaurant. On October 15, she hurt her back at the restaurant while carrying bags. When she bent over to put the bags on a table, she felt a pop in her back and a searing pain. At first, she could not stand up. She said she had never experienced pain like that with any of her previous back problems. She went home to apply ice to her back and went to the hospital later that night with burning pain. The hospital physician assessed her with a likely lumbosacral sprain. She was given an anti-inflammatory shot and prescribed a muscle relaxant and pain medication.

A few days later, Damme called her nurse practitioner about severe back pain and was prescribed hydrocodone. An x ray of her lumbar spine showed mild degenerative changes and a...