State News : Nebraska

An award of future medical treatment can include procedures not contemplated at the time of the award but the claimant must still prove they are related to the compensable accident and injury.  It is a factual determination that will be upheld if there is evidence in the record to support the decision.  The claimant had longstanding knee problems aggravated by a work accident.  In 2008, the Court awarded future medical for the right knee.  At the time a total knee replacement was not contemplated.  When it was recommended, the employer disputed that it was included in the award and that it was reasonable and necessary as a result of the aggravation.  Initially the trial court denied the surgery and that was appealed and remanded because while the surgery was not contemplated at the time of the 2008 award, the trial court did award future medical treatment.  On remand the trial court held that the surgery was not related to the work aggravation, which was supported by an expert report and other medical records, and the decision was affirmed. 

Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568 (2013).

The Nebraska Court of Appeals confirmed that an award of vocational rehabilitation was premature absent a finding the claimant was at MMI.  The Court also held the trial court implicitly found claimant did not abandon his job when he refused to take a position he believed was outside his temporary restrictions.  Claimant testified he could not perform the position and the employer testified claimant was terminated for refusing to perform the position pending evaluation of whether it was within his restrictions.  The testimony provided a factual basis for the trial court to find claimant did not abandon his employment and the award of temporary disability was supported.  The Court also reversed the offset of claimant’s temporary benefits with his unemployment compensation as that is contrary to Nebraska law.

Hernandez v. JBS, 20 Neb. App. 634 (2013). 

The Nebraska Court of Appeals affirmed the trial court’s finding of a recurrence as there was no evidence of a second accident, just continued flare-ups from the original injury.  The trial court found that claimant originally sustained a 20% loss of earning capacity.  A small portion of the permanent partial disability benefits were paid late and underpaid, and the trial court awarded a small penalty with interest and attorney’s fees.  While the trial court did find that the recurrence resulted in a 40% loss of earning power it declined to award additional permanent disability.  The Court of Appeals reversed, indicating that the permanent disability weeks should be paid at 40% with credit for the 20% paid.  It also reversed the award of penalties, interest, and fees, finding that the action was not a modification (there was no prior settlement or award) and that the two opinions of 20% and 40% created a reasonable controversy that insulated the employer from penalties.

Tuttle v. Bunge Milling, 20 Neb. App. 615 (2013).