Nichols v. Fairway Bldg. Prods.
294 Neb. 657
| Neb. | 2016Background
- On June 18, 2012, Dennis "DJ" Nichols experienced a sudden 8-inch drop while operating a forklift at work and developed persistent low-back pain that later radiated to his legs and caused urinary symptoms.
- Imaging and successive treatment (including MRIs) revealed multiple bulging/ruptured discs; Nichols underwent three spinal surgeries between November 2012 and March 2014 and reached maximum medical improvement July 17, 2014 with permanent work restrictions.
- Nichols filed a workers’ compensation claim alleging his lumbar and psychological injuries were caused or permanently aggravated by the June 18, 2012 workplace incident; parties stipulated certain periods of temporary total and temporary partial disability.
- Competing medical experts: Dr. Daniel Ripa (for Nichols) opined injuries were more likely than not caused/aggravated by the work incident; Dr. Dennis Bozarth (for Fairway) gave varying opinions and ultimately could not link the injuries to the accident to a reasonable degree of medical certainty.
- The Workers’ Compensation Court credited Ripa, found the injury compensable, awarded temporary disability (but miscalculated the total weeks), permanent total disability benefits of $440.27/week, and past and future medical benefits.
- On appeal Fairway contested sufficiency/foundation of medical opinion; Nichols cross-appealed the miscalculation and sought penalties under Neb. Rev. Stat. § 48-125 for an unreasonable appeal.
Issues
| Issue | Plaintiff's Argument (Nichols) | Defendant's Argument (Fairway) | Held |
|---|---|---|---|
| Causation — whether Nichols’ lumbar injuries were caused or permanently aggravated by the June 18, 2012 accident | Ripa: injuries more likely than not caused/permanently aggravated by work accident | Bozarth: cannot state to reasonable medical certainty that accident caused lasting damage; prior incidents suggest nonwork origin | Court credited Ripa, found compensable work-related injury; no clear error in weighing conflicting medical testimony |
| Foundation of Ripa’s opinion — whether Ripa’s opinion is unreliable because Nichols failed to disclose prior back injuries | Nichols: Ripa’s opinion stands and was admitted into evidence | Fairway: Ripa’s opinion unreliable because based on incomplete/false history (prior injuries) | Fairway failed to preserve foundational objection (no timely objection to exhibits); court did not reverse on this ground |
| Calculation of temporary total disability weeks — whether court miscalculated stipulated weeks | Nichols: court miscalculated 55.4286 weeks but parties stipulated 81.857 weeks; requests modification | Fairway: concedes miscalculation but contends moot because it already paid ~82.2 weeks | Court agreed miscalculation existed and modified award to reflect 81.857 weeks |
| Waiting-time penalty under § 48-125 — whether Fairway’s appeal was objectively unreasonable | Nichols: Fairway’s appeal lacked basis; penalty warranted | Fairway: a reasonable controversy existed based on expert opinions, so no penalty | Court held Bozarth’s opinion established a reasonable controversy and declined to award the 50% waiting-time penalty |
Key Cases Cited
- Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (standard of review for Workers’ Compensation Court findings)
- Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (court is sole judge of witness credibility; conflicting medical evidence upheld)
- Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (employer subject to waiting-time penalty if appeal lacks any basis in law or fact)
- Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (conflicting medical testimony can create reasonable controversy)