Kim v. Gen-X Clothing
287 Neb. 927
Neb.2014Background
- Matthew Kim, a manager at Gen-X Clothing, was shot multiple times during a robbery and subsequently received threats; he developed PTSD and escalating alcohol/drug use.
- Kim sought treatment beginning September 2011 (outpatient), had an ER visit on October 2, 2011 for a panic attack, and entered inpatient chemical dependency treatment on February 13, 2012.
- Treating providers (Lubberstedt and Cusumano) diagnosed PTSD and chemical dependency and testified inpatient treatment and continued care were related to the shooting; Gen-X’s expert (Chesen) disputed causation and MMI.
- The Workers’ Compensation Court found Kim had not reached maximum medical improvement (MMI), awarded temporary total disability (TTD) benefits, ordered payment for the October 2 ER visit and inpatient rehab (with credits), and awarded future medical expenses.
- Gen-X and its insurer appealed, challenging (1) the TTD award, (2) compensability of the October 2 ER visit, (3) compensability of inpatient rehab, and (4) entitlement to future medical expenses.
- The Nebraska Supreme Court affirmed, deferring to the compensation court’s credibility determinations and finding sufficient evidence supporting all awards.
Issues
| Issue | Plaintiff's Argument (Kim) | Defendant's Argument (Gen-X) | Held |
|---|---|---|---|
| Entitlement to TTD benefits | Kim cannot work due to PTSD/substance issues and is not at MMI | Gen-X contends medical opinion shows Kim ready to return to work or could work from home | Affirmed: Court credited treating providers; Kim temporariliy totally disabled and not at MMI |
| Compensability of Oct. 2, 2011 ER visit | ER visit was a panic attack caused by shooting-related PTSD | Gen-X says no medical causal link to shooting | Affirmed: medical records and Kim’s testimony linked the visit to the shooting |
| Compensability of inpatient chemical dependency treatment | Inpatient rehab was necessary and caused by shooting-induced PTSD escalation | Gen-X argues Kim was lifelong drug user and would have needed rehab regardless | Affirmed: court credited treating experts over defense expert and found inpatient treatment compensable |
| Award of future medical expenses | Continued treatment is reasonably necessary; Kim not at MMI | Gen-X argues insufficient basis to award future treatment | Affirmed: treating psychiatrist testified ongoing/alternative treatments were reasonably necessary |
Key Cases Cited
- Hynes v. Good Samaritan Hosp., 285 Neb. 985 (discussing standard for appellate review of Workers’ Compensation Court findings)
- Zwiener v. Becton Dickinson-East, 285 Neb. 735 (appellate deference to Workers’ Compensation Court factfinding and conflicting medical testimony)
- Swanson v. Park Place Automotive, 267 Neb. 133 (Workers’ Compensation Court as sole judge of witness credibility)