Recent Case Law

Nebraska Workers' Compensation Decisions of Note

 

Sweeney v. Kerstens & Lee, Inc., 2004 WL 2364820 (Neb.) (October 22, 2004)

 
Facts:   Plaintiff suffered a work injury in 1997 which resulted in an injury to his neck and arms.  The matter proceeded to hearing and in March of 2000 the trial judge entered an award for temporary and permanent benefits and payment of medical expenses.  The trial judge further found that plaintiff had not reached maximum medical improvement and reserved ruling on plaintiff's entitlement to vocational rehabilitation.  In December of 2000, the parties agreed upon a vocational counselor.  In January of 2002, the counselor concluded that plaintiff suffered a loss of earning power which ranged from 55-60 percent.  In the spring of 2002, plaintiff became severely depressed and attempted suicide.  Plaintiff treated with a psychiatrist who opined that his depression was due to the stress and loss that had evolved since his work injury and further opined that he was unable to work due to his depression.  Based upon the findings of this psychiatrist, the vocational counselor concluded that plaintiff's loss of earning power would be 100%.  Plaintiff was seen by a psychiatrist for the defense who concluded that plaintiff's depressive disorder was triggered by a court ruling and his understanding that his benefits were time limited under the ruling.  At hearing, the trial court found that plaintiff suffered a 55% loss of earning power which was attributable to his work accident and rejected plaintiff's claim that his depression rendered him totally disabled.  Plaintiff appealed and the Review Panel affirmed the decision.  The Nebraska Court of Appeals then reversed the judgment of the Review Panel and the employer appealed.

 
Issue:  Whether plaintiff's depression was proximately caused by his original work-related injury.

 
Rule:  A psychological injury resulting solely from the process of compensation or litigation is not proximately caused by the underlying accident.

 
Holding/Reasoning:  The Court recited the general rule that "[w]here the evidence is sufficient to permit the trier of fact to find that a psychological injury is directly related to the accident and the employee is unable to work, the employee is entitled to be compensated."  The Court further noted that "[a] cause of an injury may be a proximate cause, notwithstanding that it acted through successive instruments of a series of events, if the instruments or events were combined in one continuous chain through which the force of the cause operated to produce the disaster."  The Court went on to review comparable case law of other jurisdictions which held that a psychological injury resulting solely from the process of compensation or litigation is not proximately caused by the underlying accident.  In applying the above rationale, the Court concluded that plaintiff's litigation stress was an intervening event that broke the causal connection between his depression and the original work-related accident.  The Court went on to note that while the Court of Appeals correctly reasoned that plaintiff's depression would not have occurred without his work-related accident, the court erred in concluding that his depression was a natural, as opposed to extraordinary, result of the accident.

 
Rule:  1)  Conforming the pleadings to the proof involves an actual amendment by the moving party.  2)  A plaintiff's failure to specifically plead that his injury resulted from repetitive trauma instead of from a single incident is not dispositive of his claim.

 
Holding/Reasoning:  1)  The Court reviewed Neb.Rev.Stat. 25-852 and applicable case law and legislative history.  The Court concluded that a motion to "conform the pleadings to the proof" requires an actual amendment by the moving party.  Thus, the trial court did not err in denying plaintiff's motion based upon his failure to provide an actual amendment.  2)  The Court noted that the defendant had not been misled by plaintiff's pleading that he was injured due to a single incident in light of medical evidence indicating that the injury was the result of repetitive trauma.  The Court went on to note that formal procedural and pleading rules do not apply in the Workers' Compensation Court and noted that prior case law did not support that a specific election was required between cumulative trauma and specific injury.  Accordingly, the Court held that the trial court erred in failing to consider that the injury was the result of cumulative trauma as requested by plaintiff.