Fentress v. Westin, Inc.
304 Neb. 619
Neb.2019Background
- Fentress suffered compensable work-related hip and mental-health injuries in October 2014 and received a 2017 award for temporary partial benefits.
- Westin later filed motions (2018) to terminate indemnity and to determine maximum medical improvement (MMI); an evidentiary hearing on MMI occurred October 22, 2018.
- Fentress recorded a May 2, 2018 office visit with treating physician Dr. Aviles (admitted as exhibit 85); a May 22, 2018 functional capacity evaluation (FCE) supported lifting restrictions.
- Fentress later saw Dr. Nelson (pain specialist) after Westin declined to authorize further care; Dr. Nelson recommended additional injections and possible revision hip surgery and tied symptoms to the work injury.
- After Westin filed a posthearing withdrawal of its motion to determine MMI, the compensation court refused to allow withdrawal, found MMI for mental-health issues but not for the hip, ordered continued treatment with Dr. Nelson, awarded temporary total disability, and assessed $2,500 in attorney fees for delayed payment of medical bills.
- Westin appealed multiple rulings; Fentress filed a defective cross-appeal that the Supreme Court declined to consider.
Issues
| Issue | Plaintiff's Argument (Fentress) | Defendant's Argument (Westin) | Held |
|---|---|---|---|
| Denial of Westin’s motion to withdraw its motion to determine MMI | Court should decide MMI now; withdrawal would prejudice Fentress and delay benefits | Withdrawal was proper after hearing and court should not rule after withdrawal; § 48‑177 applies | Denial affirmed: withdrawal governed by general motion practice (§ 48‑162.03); court did not abuse discretion in refusing withdrawal |
| Admission of audio recording of Dr. Aviles (exhibit 85) | Recording was properly authenticated by Fentress and relevant; Westin could rebut content | Recording was surreptitious, hearsay, not best evidence, and should be excluded | Admitted: Workers’ Comp. Court has broad evidentiary discretion; no abuse of discretion in admission |
| Compensability of Dr. Nelson’s treatment (change of physician) | Employer denied compensability and refused authorization; employee may seek independent care and later recover | Treatment was an impermissible change outside rule‑50 chain and not compensable | Compensable: when employer denies care, employee may obtain independent treatment and seek reimbursement; award for Dr. Nelson affirmed |
| Temporary total disability award | Fentress remained symptomatic, FCE and Dr. Nelson supported restrictions and need for further care | Dr. Aviles released Fentress to full duty and called her a malingerer; no sufficient restrictions | Award affirmed: factual findings supported by FCE and Dr. Nelson; court reasonably discredited Dr. Aviles’ later statement |
| Independent intervening event (June 30 stumble) breaking causation | Ongoing symptoms remained tied to original work injury; no competent proof of a causal break | Stumble at park constituted an intervening cause that relieved Westin of liability | Rejected: Westin failed to produce competent medical evidence proving a break in causation; court’s causation findings supported by record |
| Attorney fees ($2,500) for delayed payments | Fees reasonable based on counsel’s efforts and hearing recollection | Amount unreasonable; court failed to explain basis in written order | Affirmed: fee determination is factual; court’s hearing statements and evidence support award |
Key Cases Cited
- In re Estate of Graham, 301 Neb. 594 (Neb. 2018) (cross-appeal and briefing requirements)
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (Neb. 2016) (standards for appellate review in workers’ comp cases)
- Tchikobava v. Albatross Express, 293 Neb. 223 (Neb. 2016) (admission of evidence reviewed for abuse of discretion)
- Bower v. Eaton Corp., 301 Neb. 311 (Neb. 2018) (Workers’ Compensation Court not bound by ordinary evidence rules)
- Knapp v. Village of Beaver City, 273 Neb. 156 (Neb. 2007) (§ 48‑177 construed as voluntary dismissal removing case from docket)
- Cruz-Morales v. Swift Beef Co., 275 Neb. 407 (Neb. 2008) (§ 48‑162.03 grants broad authority over motions)
- Clark v. Alegent Health Neb., 285 Neb. 60 (Neb. 2013) (employee may obtain independent treatment when employer denies compensability)
- Brock v. Dunning, 288 Neb. 909 (Neb. 2014) (surveillance evidence admissible in workers’ compensation cases)
- Simmons v. Precast Haulers, 288 Neb. 480 (Neb. 2014) (attorney‑fee awards under § 48‑125 are fact‑specific)
- Mendoza v. Omaha Meat Processors, 225 Neb. 771 (Neb. 1986) (defendant bears burden to prove independent intervening cause)