873 N.W.2d 435
Neb. Ct. App.2015Background
- June 3, 2008: Debra Yost sustained a work-related lower back injury.
- November 25, 2009: Compensation Court awarded MMI for low back with 35% permanent impairment; Davita ordered to pay medical expenses.
- May 26, 2010: Yost sought modification; parties stipulated that incapacity increase due to work injury and temporary total disability for back surgery; depression also connected.
- January 2011: Yost underwent L4-5 and L5-S1 fusion; later received trial and permanent spinal cord stimulator (April 2013).
- May 2011–2013: Depression diagnosed; treating psychiatrist linked depression to work injury; Davita petitioned for modification while Yost sought continued/expanded benefits, including stimulator costs.
- February 13, 2015: Compensation Court held Yost reached MMI for back (Oct. 19, 2012) and psychological injury (June 18, 2014); Davita denied stimulator costs; Davita sought to reopen evidence; appeals consolidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Spinal stimulator cost: is Davita liable? | Yost | Davita | Not liable; stimulator not a reasonable, necessary service under §48-120(1)(a). |
| Increase in incapacity due solely to work injury | Yost | Davita | Affirmed: increase due solely to original accident; Yost at MMI for psychological injury affirmed. |
| Authority to reopen evidence; motion treated as new trial | Yost | Davita | Court had §48-180 authority to modify before appeal; denial of reopening evidence was proper as a new-trial issue. |
| Motion to make an offer of proof | Yost | Davita | Not addressed on appeal; unnecessary to resolve given reopening ruling. |
| MMI determination for psychological injury | Yost | Davita | affirmed: court’s finding of MMI for depression supported by medical opinions and functional capacity evaluation. |
Key Cases Cited
- Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400 (Neb. 2011) (three-factor test for §48-120(1)(a) compliance; relief of symptoms not sole criterion)
- Sands v. School Dist. Of City of Lincoln, 581 N.W.2d 894 (Neb. App. 1998) (increase in disability due solely to original injury; credibility of medical proof)
- Hohnstein v. W.C. Frank, 237 Neb. 974 (Neb. 1991) (causal connection must be definite and certain for medical testimony to support award)
- Damme v. Pike Enters., 289 Neb. 620 (Neb. 2014) (court is sole judge of credibility/weight of medical opinions)
- Woodhouse Ford v. Laflan, 268 Neb. 722 (Neb. 2004) (postjudgment motions; distinction between new trial and other motions)
- Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488 (Neb. App. 2013) (change in incapacity requires impairment and disability changes; standard of review)
- Rader v. Speer Auto, 287 Neb. 116 (Neb. 2013) (appellate review of factual findings under jury-verdict standard)
- Manchester v. Drivers Mgmt., 775 N.W.2d 179 (Neb. 2009) (standard of review for workers’ compensation findings)