909 N.W.2d 373
Neb. Ct. App.2018Background
- Escobar, a beef tenderloin puller for JBS, injured his lower back lifting at work on June 25, 2015; he treated with company nurse, physicians, physical therapy, and specialists, and underwent MRI showing L4-5 annular tear with disc bulge.
- He was hospitalized at UNMC from February 23–25, 2016, with complaints of severe back pain and radicular symptoms; UNMC generated substantial itemized charges.
- Workers’ Compensation Court found (1) Escobar sustained a work-related low-back injury, (2) he reached maximum medical improvement (MMI) on April 21, 2016, (3) he was entitled to temporary total disability (TTD) from Feb 17–Mar 15, 2016, (4) JBS must pay certain UNMC charges totaling $16,840.18, and (5) Escobar is entitled to future medical care and a 15% loss of earning capacity.
- JBS appealed the inclusion of particular UNMC hospitalization charges and the TTD award for Feb 17–Mar 15; Escobar cross-appealed seeking temporary partial/total benefits from June 28, 2015 to MMI and attorney fees.
- The Court of Appeals affirmed the TTD award for Feb 17–Mar 15 and affirmed the denial of temporary partial benefits from June 28–Apr 21, but reversed and remanded the hospital-billing award for further itemized findings and remanded to have the compensation court separately identify charges related to the work injury.
Issues
| Issue | Plaintiff's Argument (Escobar) | Defendant's Argument (JBS) | Held |
|---|---|---|---|
| Whether UNMC hospitalization charges (Feb 23–25, 2016) are payable by employer | Hospital records and treatment during admission related to work injury; prima facie case for reasonableness and relatedness | No expert tie of specific charges to work injury; many charges relate to other ailments; employer should not be forced to pay unfamiliar/undocumented charges | Remanded: employee bears prima facie burden; court must itemize which charges are related and JBS pays only those; reversed award of $16,840.18 pending further findings |
| Whether Escobar entitled to temporary total disability from Feb 17–Mar 15, 2016 | Treating physician (Dr. Anderson) took him off work and hospitalization supports period of incapacity | Employer’s IME (Dr. Bozarth) said no off-work needed; hospitalization mainly for other conditions | Affirmed: tribunal credited treating physician, awarded TTD for that period |
| Whether Escobar entitled to temporary partial/total disability from June 28, 2015 to MMI (Apr 21, 2016) | After injury Escobar bid to lower-paying light jobs and performed different work—entitled to temporary partial benefits | Change of position was voluntary and not compensable temporary disability | Affirmed: tribunal found job change voluntary; no temporary partial benefits awarded |
| Entitlement to attorney fees on appeal | Successful party entitled to fees | Procedural rules require formal request under appellate rules | Not addressed substantively; request rejected for noncompliance with appellate fee procedure; remand on medical charges prevents ruling now |
Key Cases Cited
- Tchikobava v. Albatross Express, 293 Neb. 223 (standard for appellate review of Workers’ Compensation Court)
- Gardner v. International Paper Destr. & Recycl., 291 Neb. 415 (factual findings of compensation court not disturbed unless clearly wrong)
- Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526 (prima facie proof of medical expenses shifts burden to employer)
- Lounnaphanh v. Monfort, Inc., 7 Neb. App. 452 (medical records can establish causal link without outside expert testimony)
- Yost v. Davita, Inc., 23 Neb. App. 482 (reasonableness/necessity of medical treatment is a question of fact)
- Visoso v. Cargill Meat Solutions, 18 Neb. App. 202 (clinic/medical records that tie visits to work injury suffice to shift burden to employer)
- Kim v. Gen-X Clothing, 287 Neb. 927 (definition and elements of temporary and total disability)
- Zwiener v. Becton Dickinson–East, 285 Neb. 735 (benefit of inferences and credibility in testing sufficiency of evidence)
- Hynes v. Good Samaritan Hosp., 291 Neb. 757 (Workers’ Compensation Court sole judge of witness credibility)
- Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237 (when nature/effect of injury not apparent, expert testimony required to show causation)
- Lovelace v. City of Lincoln, 283 Neb. 12 (appellate court reviews questions of law de novo)