Fentress v. Westin, Inc.
304 Neb. 619
| Neb. | 2019Background
- In Oct 2014 Fentress suffered work-related hip and mental-health injuries; she received temporary partial benefits in a 2017 Workers’ Compensation Court award.
- Westin (employer/insurer) later moved to terminate indemnity benefits and to determine maximum medical improvement (MMI); an evidentiary hearing on MMI occurred Oct 22, 2018.
- Fentress admitted a May 2, 2018 audio recording of her visit with treating physician Dr. Aviles; an FCE (May 22, 2018) found valid effort and recommended lifting restrictions (41 lb).
- Westin introduced Dr. Aviles’ later October 2018 statement calling Fentress a "malingerer" and argued a June 30, 2018 stumble was an independent intervening event.
- Fentress sought and saw Dr. Christopher Nelson (pain management/orthopedics); Nelson’s diagnostic injection relieved groin pain and he recommended revision hip surgery; Westin denied coverage for Nelson.
- The compensation court (Jan 15, 2019) found MMI reached for mental-health issues but not for the hip, admitted the recording, ordered authorized care with Dr. Nelson, awarded temporary total disability and $2,500 in attorney fees; Westin appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of Westin's motion to withdraw its motion to determine MMI | Westin should not be allowed to withdraw after hearing; Fentress argued withdrawal would delay benefits | Westin asked to withdraw post-hearing to allow more discovery and avoid ruling | Court upheld denial: withdrawal governed by §48-162.03 motion practice; denial supported to avoid prejudice/delay |
| Admission of surreptitious audio recording of Dr. Aviles | Recording shows physician’s statements; Fentress laid foundation and used it to refresh/establish evidence | Westin objected (foundation, hearsay, surreptitious nature; best evidence) and argued chilling effect on physicians | Admissible: compensation court has broad evidentiary latitude under §48‑168; admitting recording not an abuse of discretion |
| Compensability of Dr. Nelson’s treatment (chain-of-referral) | After Westin denied compensability/authorized care, Fentress properly sought independent care; later treatment with Nelson is compensable | Westin contended Nelson was a forbidden change under rule 50(A)(6) and not compensable | Compensable: employer’s denial excuses chain-of-referral; Nelson’s care ordered paid |
| Award of temporary total disability (work restrictions) | Fentress argued FCE, worsening symptoms, Dr. Nelson’s opinions and need for cane/support show inability to work | Westin relied on Dr. Aviles’ opinion that Fentress could work full duty and disputed FCE restrictions | Court found facts for temporary total disability supported by valid FCE and other evidence; Aviles’ contrary later opinion was rejected |
| Independent intervening event (June 30 stumble) | Fentress said the stumble caused only a brief different pain episode; no records show new disabling injury | Westin argued the stumble broke causation and relieved employer of liability | Rejected: Westin failed to prove permanent damage from the stumble by competent medical testimony; mere possibility insufficient |
| Attorney fees awarded ($2,500) | Fentress sought fees for Westin’s failure to timely pay medical bills and showed counsel’s efforts | Westin argued the amount was unreasonable and the court failed to explain calculation | Affirmed: fee determination is case-by-case; court heard testimony and explained award at hearing, award not erroneous |
Key Cases Cited
- In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (appellate cross-appeal procedure)
- Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (Workers’ Compensation Court not bound by usual evidence rules)
- Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (admission of evidence reviewed for abuse of discretion)
- Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (§48‑177 voluntary dismissal removes case from docket)
- Cruz‑Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (§48‑162.03 grants court broad authority over motions)
- Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (employer’s denial of compensability allows employee to seek independent medical care)
- Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (surveillance evidence admissible in workers’ compensation cases)
- Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (defendant bears burden to prove independent intervening cause)
- Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (attorney‑fee awards under §48‑125 are case‑by‑case)
- Interiano‑Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 (standards for reviewing Workers’ Compensation Court findings)