856 N.W.2d 422
Neb.2014Background
- Patricia Damme had long-standing degenerative disc disease with prior surgeries and intermittent symptoms before starting work for Pike Enterprises in June 2009.
- On October 15, 2009, Damme experienced an acute back event at work (felt a pop and severe pain while lifting), was treated conservatively, and imaging showed marked loss of L4-5 disc height compared with earlier films.
- Multiple physicians (including Drs. Mayer and O’Neil) concluded the October 2009 event aggravated preexisting lumbar disease; opinions varied on permanence and apportionment of symptoms.
- Damme’s treatment was complicated by psychiatric issues and heavy narcotic use; surgery was deferred until after periods of interrupted care and a referral to Dr. Woodward in 2012.
- Woodward performed a successful L4-5 fusion in January 2013, after which Damme’s pain largely resolved and she was released to work in June 2013.
- The Workers’ Compensation Court awarded temporary total disability from Nov. 9, 2009 to June 17, 2013, and future medical benefits; Pike appealed, arguing lack of causation, unreasonableness of surgery, and that incarceration barred benefits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation: Did the Oct. 2009 event cause the need for the Jan. 2013 surgery? | Damme: Oct. 2009 aggravated preexisting L4-5 disease; surgeons’ records and diskogram link injury to pathology and need for fusion. | Pike: Event was only a temporary symptom aggravation or natural progression; expert opinions don’t establish the required causal link or permanence. | Court affirmed: evidence (Mayer, O’Neil, Woodward, imaging) sufficiently showed the 2009 event was a contributing cause and surgery was reasonable/necessary. |
| Reasonableness of surgery | Damme: Nonsurgical care failed; diskogram and Woodward’s assessment supported fusion as necessary. | Pike: Surgery was sought to obtain narcotics; prior physicians refused surgery due to psychiatric/narcotic issues. | Court affirmed: trier of fact credited Woodward’s conclusions and Damme’s post-op recovery; surgery reasonably necessary. |
| Temporary total disability period | Damme: She lost earning capacity and could not obtain work; testimony and work releases support total disability until surgeon’s release. | Pike: No work restrictions after Dec. 2009 and incarceration should bar benefits; benefits are wage replacement. | Court affirmed: disability measured by loss of earning capacity (not current wages); record supports total disability through June 17, 2013; incarceration does not bar benefits absent statute. |
| Future medical benefits | Damme: Future care required under statute. | Pike: Contests necessity/scope. | Court affirmed: future medical benefits properly awarded; Pike’s arguments lacked merit. |
Key Cases Cited
- Potter v. McCulla, 288 Neb. 741 (standard for appellate review of Workers’ Compensation Court decisions)
- Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568 (viewing evidence in light most favorable to successful party)
- Moyera v. Quality Pork Internat., 284 Neb. 963 (illegal work status and disability benefits; statutory control of defenses)
- Bassinger v. Nebraska Heart Hosp., 282 Neb. 835 (refusal to recognize nonstatutory defenses in workers’ comp)
- Swanson v. Park Place Automotive, 267 Neb. 133 ("lighting up" preexisting condition compensable)
- Frank v. A & L Insulation, 256 Neb. 898 (medical opinion sufficiency and review)
- Owen v. American Hydraulics, 258 Neb. 881 (medical expert causation requirements)
- Cox v. Fagen Inc., 249 Neb. 677 (employment as contributing cause; compensability principles)
- Zwiener v. Becton Dickinson-East, 285 Neb. 735 (temporary disability and purpose of healing benefits)
- Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237 (use of vocational evidence to assess loss of earning capacity)