Frans v. Waldinger Corp.
| Decision Date | 28 January 2020 |
| Docket Number | No. A-19-482.,A-19-482. |
| Parties | ERIC M. FRANS, APPELLEE, v. WALDINGER CORPORATION AND EMC INSURANCE CO., APPELLANTS. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the Workers' Compensation Court: DANIEL R. FRIDRICH, Judge. Reversed and remanded with directions.
Caroline M. Westerhold and Jenna M. Christensen, of Baylor Evnen, L.L.P., for appellants.
Maynard H. Weinberg, of Weinberg & Weinberg, P.C., for appellee.
Waldinger Corporation (Waldinger) and its workers' compensation insurance carrier EMC Insurance Company (collectively the Appellants) appeal from the order of the Nebraska Workers' Compensation Court, which awarded Waldinger's former employee Eric M. Frans ongoing future medical care for an injury he suffered in an accident arising out of and in the course of his employment with Waldinger. For the reasons set forth herein, we reverse, and remand with directions to dismiss Frans' amended complaint.
On October 30, 2002, Frans suffered an injury in an accident arising out of and in the course of his employment with Waldinger. Frans was injured when a garage door came down and struck him on the top of his head. Frans initially complained of neck, head, and low-back pain. After Frans' neck pain resolved, his treatment then focused on his low-back injury. Frans returned to light duty work with Waldinger after the accident and continued in that capacity until he was laid off in 2005.
On June 30, 2008, Frans filed a petition (2008 petition) in the compensation court, alleging he injured his head, neck, midback, and lower back in the October 2002 work-related accident.
On November 25, 2008, the parties filed an application to approve a lump-sum settlement agreement leaving medical liability open (settlement agreement). Therein, the parties agreed that "the type of injury/illness is to [Frans'] lower back." And, the parties agreed "to resolve, on a final basis, all issues except [Frans'] entitlement to receive reasonable and necessary medical treatment as a result of [his] low back condition, the cost of which [was] to be paid by [the Appellants] pursuant to Neb. Rev. Stat. § 48-120." The settlement agreement stated that Frans understood he would "continue to receive future workers' compensation medical, hospital or miscellaneous expenses as a proximate result of the accident on 10/30/02." It also stated his understanding that "upon paying the court approved amount of $149,000.00, [the Appellants] are fully discharged from all further liability except for future reasonable and necessary medical care . . . on account of the accident and injury(s) of 10/30/02, whether now known or to become known in the future, whether physical or mental, unless the settlement was procured by fraud . . ." (Emphasis supplied.)
On December 11, 2008, the compensation court entered an order approving the settlement agreement and dismissing Frans' petition. The court approved the settlement, ordered the Appellants to pay Frans the lump sum of $149,000, and found that Frans sustained an accident as alleged on October 30, 2002, which arose out of and in the course of his employment with Waldinger "for which he shall be entitled to future medical treatment." The court then dismissed Frans' 2008 petition.
On October 4, 2018, Frans filed a petition (2018 petition) in the compensation court, claiming he injured his head, neck, and low back in the October 2002 accident. He requested "CONTINUING MEDICAL TREATMENT ONLY."
On December 11, 2018, the Appellants filed a motion for summary judgment, alleging that under the settlement agreement, Frans waived all rights and benefits related to the October 2002 accident, "except his entitlement to future medical causally related to his low back condition" and that he was precluded under the settlement agreement from seeking benefits for his head and neck. They also alleged that all benefits related to the low-back injury to date had been paid and that they were unaware of any current disputes associated with Frans' low-back condition.
On January 16, 2019, the compensation court entered an order overruling the Appellants' motion for summary judgment. The court found that the Appellants were liable "only for the medical treatment for [Frans'] low back injury and any other medical care that was caused by his low back injury." The court stated further that if Frans hoped to prevail at trial, "he must show that his head and neck injuries are somehow causally related to his low back injury."
On February 22, 2019, Frans filed an amended petition (2019 amended petition), again claiming he injured his head, neck and lower back in the October 2002 accident. In the 2019 amended petition, he requested "continuing medical treatment including but not limited to treatment for depression arising as a result of the 10/30/02 back injury as well as other treatment related to the back injury."
Trial was held before the compensation court on April 2, 2019. The court received various medical records and reports, copies of the settlement agreement and certain pleadings, and other documentary evidence. Testimony was heard from Frans; his wife; a physical therapist who treated Frans' back; and Holli A. Schifferns, a licensed mental health practitioner who began treating Frans for "major depressive disorder" in March 2018. A colleague of Schifferns treated Frans prior to Schifferns taking over his case. Given the issues on appeal, we have only recounted the medical evidence relating to Frans' anxiety and depression.
Frans testified about the October 2002 accident and the subsequent medical treatment of his physical injuries, including the treatment he was receiving for his back at the time of trial. Frans testified about his depression and anxiety, indicating that in the first couple of years after the accident, he "was in a lot of pain everywhere," "was in deep depression," and "was having thoughts of suicide" although he did not tell anyone. He indicated that the narcotic drugs he was receiving for his pain helped somewhat, but that the pain was "always there" and "never stopped." According to Frans, he never had depression or received treatment for it prior to the October 2002 accident, but he indicated that he had seen a doctor before the accident "for approximately ten months for stress." At that time, Frans was treated with Paxil and Xanax; he testified that he stopped taking Paxil on September 9, 2002, and that he believed he stopped taking Xanax "in the same month." After the accident, Frans described his depression as "a roller coaster ride" that increased or decreased with his level of pain. At the time of trial, Frans was undergoing therapy with Schifferns and receiving management of his psychiatric medications from another individual. On cross-examination, Frans confirmed that his issues with depression developed approximately within a year of the accident, that he had thoughts of suicide, and that he did not tell his wife about these issues until sometime later. He agreed that he and his wife communicated with one of his medical doctors about his depression in 2004 and that he had been stressed "[a] little bit" by some recent health issues experienced by his wife.
Frans' wife testified that she was unaware of any medical treatment of Frans for major depressive disorder prior to October 30, 2002.
The medical records admitted into evidence at trial show that Frans had a history of anxiety preceding the October 2002 accident and injury. In December 2001, Frans was treated by a medical provider for panic attacks caused by stress at work. He was given the medications Paxil and Xanax. By April 2002, Frans had been diagnosed with generalized anxiety disorder and panic attacks. An office note from April 10 states that Frans had no depression. He was doing "exceptionally well on Paxil" and rarely taking Xanax, but because he was concerned about weight gain, his medical provider was stopping the Paxil and providing samples of Celexa for him to try. By September 9, Frans had stopped taking both Celexa and Paxil (which he resumed for a period after trying Celexa). Frans was doing "extremely well" after being off of Paxil for about a month and was only using Xanax "once a week on average."
According to the medical history Frans provided to psychiatrist Dr. Bruce Gutnik in 2019 at the time of a psychiatric diagnostic evaluation, Frans saw a mental health professional twice in 2003 who told him that "'shit happens.'" On May 4, 2006, Dr. Consuelo Lorenzo, who was seeing Frans for a followup visit after he had completed a program of physical therapy, noted that Frans was taking Celexa and Xanax as needed. Her office note primarily addressed his physical conditionand further treatment of his back and does not mention anything about him suffering from or being treated by her for depression and/or anxiety. In a deposition taken in January 2007, Frans testified that he was taking Celexa for depression and anxiety and noted that his family members thought it helped him. Neither Lorenzo's May 2006 office note nor the portion of the 2007 deposition admitted into evidence reveal who was prescribing this medication for Frans. In an office note from September 2011, Lorenzo noted that Frans was taking Celexa. On January 24, 2013, Frans saw Dr. Chris Criscuolo for a followup visit on his "chronic back pain." The list of "Chronic Problems" from which Frans was suffering identified in Criscuolo's office note from that visit included "Panic Attack" and "Depression with anxiety."
The first office note documenting treatment specifically for mental health matters in the record came from Molly Peterson, APRN, at InRoads to Recovery. On June 9, 2015, she noted that...
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