Tchikobava v. Albatross Express
293 Neb. 223
| Neb. | 2016Background
- On August 9, 2010, claimant Andrei Tchikobava, a truck driver for Albatross Express, was injured when his trailer was rear-ended while he slept; he sought treatment for rib, back, and neurologic complaints and weighed ~400 pounds at the time.
- Medical records include ER visits (Aug 2010), neurology and pain-management records (Dr. Berenblit and Dr. Reyfman), EMG showing L5-S1 radiculopathy (Dec 8, 2010), and later exams and imaging in 2014 showing chronic lumbar and cervical radiculopathies and lumbar stenosis; Dr. Reyfman placed claimant at MMI and with <sedentary capacity on May 2, 2014.
- Claim alleged temporary and permanent disability, past and future medical expenses, and penalties/fees; employer denied causation and claimed preexisting conditions.
- At the February 2015 Workers’ Compensation Court hearing, claimant offered Dr. Reyfman’s deposition taken in a separate negligence suit; the court excluded it for due-process/hearsay reasons but received Reyfman’s medical records.
- The compensation court awarded temporary total disability (TTD) from Aug 10–Dec 8, 2010, and permanent total disability (PTD) from May 2, 2014 onward; it denied TTD for Dec 9, 2010–May 1, 2014 and denied future medical expenses, penalties, attorney fees, and interest.
- Claimant appealed, contesting (1) exclusion of Reyfman’s deposition, (2) denial of future medical expenses, and (3) denial of TTD for Dec 9, 2010–May 1, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Reyfman’s out-of-case deposition | Deposition admissible under WC Ct. R. 10 and Neb. Rev. Stat. §27-804(2)(a); employer had notice and opportunity to cross in the other case; declarant unavailable | Court properly excluded deposition for due-process concerns because employer’s WC counsel lacked opportunity to cross-examine at that deposition | Even if exclusion was error, it was not reversible: substantially similar medical records were admitted and deposition contained no material new evidence, so exclusion was not prejudicial |
| Award of future medical expenses | Claimant argued ongoing need (pain medication, bariatric surgery recommendations to enable future spine care) makes future treatment reasonably necessary | Employer argued claimant failed to prove future treatment reasonably necessary; no stipulation and insufficient medical evidence of future need | Affirmed: claimant failed to present explicit evidence that future treatment is reasonably necessary to relieve effects of the work injury; pain-medication history alone is insufficient |
| Temporary total disability for Dec 9, 2010–May 1, 2014 | Claimant testified he treated with his family physician and was unable to work during that period; testimony was only evidence covering that time | Employer relied on absence of medical records for 2011–2013 and that no doctor took him off work in those years; argued claimant failed proof | Reversed and remanded: compensation court’s award did not explain weight given to claimant’s uncontradicted testimony; court must redecide on existing record and state reasons for accepting or rejecting claimant’s testimony |
| Standard of review / evidentiary discretion | N/A (procedural) | N/A | Court reiterated that WC Court has broad evidentiary discretion subject to due process; appellate reversal requires prejudice or lack of competent evidence |
Key Cases Cited
- Hynes v. Good Samaritan Hosp., 291 Neb. 757 (2015) (standard of appellate review in workers’ compensation matters)
- Zwiener v. Becton Dickinson-East, 285 Neb. 735 (2013) (WC Court not bound by usual rules of evidence but subject to due-process limits)
- Foote v. O’Neill Packing, 262 Neb. 467 (2001) (future medical care requires stipulation or evidentiary showing of reasonable necessity)
- Sellers v. Reefer Systems, 283 Neb. 760 (2012) (future medical benefits require evidence future treatment is reasonably necessary)
- Adams v. Cargill Meat Solutions, 17 Neb. App. 708 (2009) (current use of pain medication, without evidence of future need, insufficient to support award of future medical expenses)
- Kim v. Gen-X Clothing, 287 Neb. 927 (2014) (total disability is a question of fact; claimant benefits from every reasonable inference when testing sufficiency of evidence)