Baylor, Evnen Attorney Tim Clarke Obtains Favorable Reversal of Modification Award

In Williams v. EGS Appleton, the Nebraska Court of Appeals reiterated that “a medical opinion which only states that previous injuries more than likely contributed to an increase in incapacity cannot be permitted under a standard which requires the increase or decrease in incapacity to be solely due to the injury resulting from the original accident.” Williams v. EGS Appleton, No. A-14-705, 2015 WL 1593150 (Neb. Ct. App. Apr. 7, 2015). It is well established that in order to modify an award of the Workers’ Compensation Court under Neb. Rev. Stat. § 48-141, an applicant must prove that any increase or decrease in incapacity was due solely to the injury of the original work related accident.

The Claimant in Williams suffered a low back injury in 2004 and a right foot injury in 2006 while employed with the appellant. Williams, supra. The compensation court awarded him benefits for these injuries. Id.  In 2011, the Claimant filed a petition for modification of his award to include benefits for depression and increased pain in his back and foot, and also subsequently amended his petition to seek additional benefits for a shoulder injury. Id. Claimant alleged that in 2013, his cane clipped on a patch of grass, causing him to fall and injure his shoulder. Id. The Claimant alleged that the shoulder injury and resulting disability was due solely to his original work related injuries, because he did not need a cane for ambulation until after his 2004 and 2006 work injuries. Id. The compensation court agreed and awarded him additional benefits for the shoulder injury. Id.

On appeal, the Nebraska Court of Appeals analyzed whether the causation opinion offered in support of Claimant’s shoulder injury met the standard to modify set out in Neb. Rev. Stat. § 48-141. Id. The Claimant’s treating physician stated, “[M]ore than likely, the slip and fall that resulted in an injury to [Claimant’s] left shoulder … was contributed to by his prior right foot and low back injury.” Id. The Court of Appeals reversed the trial court and determined this opinion did not meet the modification standard. Id. Simply because a Claimant’s original injury may have contributed to his change in incapacity is not sufficient enough to satisfy the standard set forth in Neb. Rev. Stat. § 48-141. See Hubbart v. Hormel Foods Corp., 15 Neb. App. 129, 723 N.W.2d 350 (2006) (reversing the compensation court’s finding that employee’s depression was compensable because her previous injuries “significantly contributed” to her later-developed depression).

It also is important to note that the court recognized that medical testimony will often include phrases like “probably due to” rather than making unequivocal diagnoses. Id.  Despite this, causation opinions must still provide the court with sufficient evidence to conclude that the change in the employee’s incapacity is in fact due solely to the employee’s original injury. Id. For questions or additional information on this topic, please contact Nebraska Workers’ Compensation attorney Tim Clarke at TClarke@baylorevnen.com or Emily R. Motto at EMotto@baylorevnen.com. Feel free to call us at 402.475.1075.