852 N.W.2d 339
Neb. Ct. App.2014Background
- Contreras, employed as a certified tire technician for Haas, injured his back on August 23, 2010 while working on a skid steer.
- Injury required March 2011 back surgery; he has not returned to work for Haas since August 24, 2010, with only a brief 2012 newspaper-delivery job otherwise.
- Post-injury medical treatment included MRI, pain medications, physical therapy, and later evaluations diagnosing persistent back problems, including degenerative disease and disc herniation.
- Dr. Jimenez recommended more aggressive treatment, including potential spinal fusion; Contreras elected not to undergo the fusion after a second opinion.
- Contreras continued to report significant pain post-surgery and underwent a functional capacity evaluation by Sexson; Dr. McKeag agreed with the evaluation's restrictions.
- The Workers’ Compensation Court found permanent total disability after September 2011, plus past and future medical benefits; Haas appealed the verdict and evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of exhibits 22 and 23 | Contreras argues Exhibit 22/23 were properly admissible as relevant medical evidence. | Haas contends the exhibits or parts were inadmissible or improperly admitted. | Exhibits 22 and 23 properly admitted and considered. |
| Causal connection post-surgery | Contreras asserts post-surgery condition is causally connected to the 2010 injury. | Haas disputes ongoing post-surgery restrictions causally linked to the 2010 injury. | Sufficient evidence supports a causal link between post-surgery condition and the 2010 workplace accident. |
| Support for permanent total disability | Contreras contends the medical evidence supports PTD given restrictions and education/conviction factors. | Haas argues the evidence shows partial work capacity; only loss of earning capacity of 20–25% demonstrated. | Record supports permanent total disability based on physical restrictions and overall evidence. |
Key Cases Cited
- Veatch v. American Tool, 267 Neb. 711 (Neb. 2004) (court may prescribe its own rules of evidence; expert testimony must be helpful and based on medical certainty or probability)
- Schlup v. Auburn Needleworks, 239 Neb. 854 (Neb. 1992) (causation and preponderance standard in workers’ comp)
- Owen v. American Hydraulics, 254 Neb. 685 (Neb. 1998) (claimant must prove causal connection between injury, employment, and disability by competent medical testimony)
- Zessin v. Shanahan Mechanical & Elec., 251 Neb. 651 (Neb. 1997) (WC Court credibility determinations are for the trial court; appellate review respects conflicting medical opinions)
- Money v. Tyrrell Flowers, 275 Neb. 602 (Neb. 2008) (evidence of significant impairment plus limited education can support total disability)
- Olivotto v. DeMarco Bros. Co., 273 Neb. 672 (Neb. 2007) (factors for evaluating permanent disability in workers’ comp cases)
- Lowe v. Drivers Mgmt., Inc., 274 Neb. 732 (Neb. 2007) (appellate deference to WC Court credibility determinations; no substitution of judgment for conflicting medical testimony)