Mischo v. Chief School Bus Serv.
A-16-997
Neb. Ct. App.Sep 26, 2017Background
- James Mischo, a school bus driver, suffered a compensable cervical injury from an April 11, 2011 work-related fall; he underwent anterior cervical discectomy and fusion (C4-5, C5-6) in January 2012 and was placed at MMI April 16, 2012 with permanent restrictions and a 20% loss of earning capacity in a December 2012 Further Award.
- Neither the May 9, 2012 Award nor the December 5, 2012 Further Award provided for future medical benefits. Parties stipulated to that fact at the later proceeding.
- Beginning in 2013 Mischo reported ongoing left-sided neck pain; imaging showed solid fusion C4–6 but severe left C6–7 foraminal stenosis. In August–November 2013 and again in 2015 Dr. McClellan recommended a C6–7 fusion.
- In August 2015 Dr. McClellan completed a workers’ compensation form indicating the C6–7 fusion was related to the 2011 injury and that future care was needed; he equivocated when asked whether this recommendation represented a material and substantial change since MMI.
- Mischo petitioned in 2016 to modify the prior award under Neb. Rev. Stat. § 48‑141 (and § 48‑162.01(7)) to obtain future medical care (surgery) and temporary total disability; the compensation court dismissed the petition for failure to prove a material and substantial increase in incapacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for modifying an award to obtain future medical care under § 48‑141 | § 48‑141 applies but should not require proof of change in earning capacity when surgery is needed post‑award | § 48‑141 is the correct standard; plaintiff must prove material and substantial change in incapacity due solely to the original injury | Court applied § 48‑141 and required proof of both medical impairment change and change in disability (earning capacity) |
| Whether Mischo showed a material and substantial change in condition since Further Award | Ongoing/worsening symptoms and physician recommendation for new fusion show a material/substantial change | Mischo’s condition and restrictions remained essentially the same; physician equivocated; no new impairment or increased loss of earning capacity shown | Court found no material and substantial change; dismissal affirmed |
| Whether earlier awards implicitly entitled Mischo to future medical care | May 9, 2012’s statement that MMI had not been reached implies entitlement to future care | Prior awards were final and silent regarding future medical benefits; silence equals denial; any future care requires § 48‑141 compliance | Issue not preserved (stipulation) and, on law, silence does not imply future-care entitlement; claims barred absent § 48‑141 showing |
| Entitlement to temporary total disability, attorney fees, and waiting-time penalties | TTD from Dec 17, 2015 onward and attendant fees/penalties because Chief refused to pay recommended care | No modification proven and no obligation to pay; reasonable controversy existed so no penalties or fees | No TTD awarded; no attorney fees or penalties because reasonable controversy existed and no past award for future care |
Key Cases Cited
- Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (appellate standard and § 48‑141 requirements)
- Thornton v. Grand Island Contract Carriers, 262 Neb. 740, 634 N.W.2d 794 (final awards silent as to future medical benefits bar later claims absent § 48‑141 relief)
- D'Quaix v. Chadron State College, 272 Neb. 859, 725 N.W.2d 558 (silent final orders construed as denials when intended as final adjudications)
- Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (trier of fact may accept or reject expert testimony)
- Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (standards for waiting-time penalties and attorney fees under § 48‑125)