916 N.W.2d 437
Neb. Ct. App.2018Background
- In Jan 2012 Carr, an employee of Ganz, suffered work-related pelvic fractures, hernia, urinary incontinence, and erectile dysfunction; parties stipulated to an award requiring Ganz to pay future medical care under Neb. Rev. Stat. § 48-120.
- Carr sought a penile prosthesis to treat erectile dysfunction; a preoperative heart catheterization revealed coronary disease and Carr subsequently underwent coronary artery bypass grafting (CABG).
- Carr filed a motion to compel Ganz to pay for the CABG as necessary precondition to the compensable penile prosthesis; Ganz objected to evidence beyond the narrow motion scope.
- The Workers’ Compensation Court denied the motion on Dec. 23, 2016; on Dec. 30 the court entered a nunc pro tunc/modifying order reserving unresolved issues (medical expenses, mileage, attorney fees) for further hearing.
- After a Jan. 19, 2017 hearing the court resolved the reserved issues and declared the case final; Carr timely appealed from the Jan. 19 order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is CABG compensable under § 48‑120 when it is not caused by the work injury but is necessary to make the plaintiff a candidate for compensable treatment (penile prosthesis)? | Carr: CABG is compensable if medically reasonable and necessary to relieve effects of the work injury or to permit compensable treatment. | Ganz: § 48‑120 limits compensation to treatments "required by the nature of the injury," i.e., those causally related to the work injury; CABG is unrelated. | Court of Appeals: Reversed. Applied Rodriguez/Sellers framework — CABG may be compensable if shown medically reasonable and necessary to treat the compensable injury; remand for further proceedings. |
| Was the Dec. 23, 2016 order final and appealable? | Carr: Dec. 30 nunc pro tunc reserved issues, so Dec. 23 was not final; appeal from Jan. 19 is timely. | Ganz: (implicit) Dec. 23 denial was a final ruling on the motion to compel. | Court: Dec. 30 modification was within § 48‑180 and reserved issues, making Dec. 23 interlocutory; Jan. 19 started the 30‑day appeal clock. |
Key Cases Cited
- Damme v. Pike Enters., 289 Neb. 620 (Neb. 2014) (standards for modifying/reversing workers’ comp court orders)
- Guinn v. Murray, 286 Neb. 584 (Neb. 2013) (appellate review of legal questions)
- Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757 (Neb. 2005) (medical treatment for non‑causal condition may be compensable if necessary to treat compensable injury)
- Sellers v. Reefer Systems, 283 Neb. 760 (Neb. 2012) (an exclusion of a surgery at present does not bar later showing that surgery is reasonably necessary)
- Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526 (Neb. 2003) (interlocutory orders when some issues reserved)
- Zitterkopf v. Aulick Indus., 16 Neb. App. 829 (Neb. Ct. App. 2008) (treatment for an unrelated condition compensable when also necessary to treat compensable injury)