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Smith v. Nebraska Medical Center

Court of Appeals of Nebraska

November 26, 2013

Grace Smith, appellee,
v.
Nebraska Medical Center, employer, and Safety National Casualty Corporation, Insurance Carrier, appellants.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: James R. Coe, Judge.

William J. Birkel and Noah M. Priluck, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellants.

Sheldon Gallner, Laura L. Pattermann, and Adam C. Tabor, of Gallner & Pattermann, P.C., for appellee.

Moore, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

INTRODUCTION

Nebraska Medical Center and Safety National Casualty Corporation (collectively Appellants) appeal the order of the Nebraska Workers' Compensation Court that awarded benefits to Grace Smith. Appellants challenge the award of future medical benefits and the compensation court's finding that Smith had incurred a compensable mental health injury which resulted in the continuation of her temporary total disability benefits. For the reasons stated below, we affirm the compensation court's award.

PROCEDURAL BACKGROUND

On January 13, 2011, Smith was employed as a certified nurse's assistant for Nebraska Medical Center when she suffered injuries to her cervical spine and right arm after attempting to lift a patient from a wheelchair. She experienced pain in her neck and reported it to her supervisor. Smith received treatment, including two surgeries; and on September 1, she petitioned for workers' compensation benefits. Trial was held October 17, 2012. The parties did not dispute Smith's average weekly wage or that she was injured in an accident arising out of and in the course and scope of her employment. The contested issues concerned the nature and extent of Smith's injuries. The trial court awarded future medical benefits, as well as continuing temporary total disability benefits due to its finding that Smith suffered a compensable mental health injury for which she had not yet reached maximum medical improvement (MMI). Appellants timely appeal. We recount additional relevant facts in the analysis portion of this opinion.

ASSIGNMENTS OF ERROR

Appellants assign that the compensation court erred in (1) awarding future medical care from nonauthorized treating physicians, (2) finding that Smith was entitled to future medical care in the form of a spinal stimulator, (3) finding that Smith had suffered a compensable mental health injury, and (4) finding that Smith was not at MMI and was therefore entitled to a continuation of temporary total disability payments.

STANDARD OF REVIEW

The judgment made by the compensation court shall have the same force and effect as a jury verdict in a civil case. Neb. Rev. Stat. § 48-185 (Cum. Supp. 2012). A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. § 48-185; Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).

On appellate review, the findings of fact made by the trial judge of the Workers' Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. If the record contains evidence to substantiate the factual conclusions reached by the trial judge in workers' compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court. Id.

With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.

ANALYSIS

Nonauthorized Treating Physicians.

Appellants assign that the compensation court erred in awarding future medical care from nonauthorized treating physicians. Although Appellants assign this error, it is not separately discussed in Appellants' brief. A claimed prejudicial error must not only be assigned, but must also be discussed in the brief of the asserting party, and an appellate court will not consider assignments of error which are not discussed in the brief. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003); Henriksen v. Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002); Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001). In its reply brief, Appellants engage in some discussion on this issue, so we address it here because it has some bearing on the spinal stimulator matter discussed next.

Pursuant to Neb. Rev. Stat § 48-120(2)(a) (Cum. Supp. 2012), the employee has the right to select a physician who has treated the employee prior to the work-related injury. Section 48-120(2)(a) further provides, "The employer shall notify the employee following an injury of such right of selection in a form and manner and within a timeframe established by the compensation court." If the employee does not exercise such right of selection, then the employer has the right to select the physician. Under Workers' Comp. Ct. R. of Proc. 50(A)(5) (2009), "[t]he employee may choose the physician to do surgery when the injury involves . . . a major surgical operation." (Emphasis omitted.) According to rule 50(D), the primary treating physician may refer the employee for specialized medical services.

Immediately following her injury on January 13, 2011, Smith completed a "Choice or Change of Doctor Form" pursuant to the Nebraska Workers' Compensation Act. She did not designate or choose a treating physician. The form stated that in such event, Smith's employer had the right to choose the doctor to treat her. Smith testified at trial that she did not realize what she was signing at the time and did not specifically remember signing the form.

Upon referral by the workers' compensation provider, Dean K. Wampler, M.D., evaluated Smith on February 2, 2011. Dr. Wampler changed her medications, advised restricted work duty, and ...


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