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Kim v. Gen-X Clothing, Inc.

Supreme Court of Nebraska

April 11, 2014

MATTHEW KIM, APPELLEE,
v.
GEN-X CLOTHING, INC., AND FARMER'S TRUCK INSURANCE EXCHANGE (FARMERS), APPELLANTS

Page 266

Appeal from the Workers' Compensation Court: JAMES R. COE, Judge.

Stacy L. Morris, of Lamson, Dugan & Murray, L.L.P., for appellants.

Dirk V. Block and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 267

[287 Neb. 928] Heavican, C.J.

INTRODUCTION

Matthew Kim was employed by Gen-X Clothing, Inc., a retail clothing store. While he was working, the store was robbed. The perpetrators later returned and shot Kim multiple times. Kim was thereafter diagnosed with both posttraumatic stress disorder (PTSD) and chemical dependency. Kim filed for workers' compensation benefits.

Page 268

Following a hearing, the Workers' Compensation Court found that Kim had not yet reached maximum medical improvement (MMI) and was entitled to temporary total disability (TTD) benefits. In addition, the compensation court found Kim's inpatient treatment for chemical dependency, as well as an [287 Neb. 929] October 2, 2011, emergency room visit, compensable. Finally, the compensation court credited Gen-X Clothing and its insurance carrier, Farmer's Truck Insurance Exchange (Farmers) (hereinafter collectively Gen-X), for prior medical expenses paid and found that Kim was entitled to payment of future medical expenses. Gen-X appeals. We affirm.

FACTUAL BACKGROUND

Kim was employed as a manager by Gen-X Clothing, a retail clothing store located in Omaha, Nebraska. He was working on June 28, 2011, when he suffered multiple gunshot wounds. The shooting was revenge for the reporting of an earlier robbery at the store. After the shooting, the perpetrators made telephone calls to Kim, further threatening him, his mother, and his son.

In September 2011, Kim began seeing Peter Cusumano, a licensed mental health practitioner and a licensed alcohol and drug counselor. Cusumano evaluated Kim, diagnosed him with PTSD and chemical dependency, and determined that he would benefit from outpatient treatment. Prior to the shooting, Kim drank alcohol and was a recreational drug user. But Kim testified that around the time he began treatment with Cusumano, his use of alcohol and drugs began to increase. Kim testified that he used the alcohol and drugs to help him sleep and to cope with the shooting.

On October 2, 2011, Kim visited the emergency room after waking from a nightmare and suffering a panic attack. Right around the time of this visit, the record shows that Kim's medical providers began recommending inpatient treatment for Kim, because they did not believe he could safely detoxify without experiencing significant, possibly fatal, withdrawal. Kim was eventually admitted to inpatient drug and alcohol treatment on February 13, 2012.

At trial, Kim testified to his life since the shooting. He indicated that he suffered from anxiety and mostly stayed at home, especially at night. Kim testified that he attended church and his son's school functions. When he did go out, he would do so " way out in West Omaha," because he was afraid to be in his own neighborhood. Kim testified that about two [287 Neb. 930] to three times per week, he has nightmares about his family's being harmed. Kim testified that he bought a gun and carries a pocketknife with him. Kim also testified that the threatening telephone calls led the family to move out of his mother's home for a period of time.

Cusumano testified at trial. He was cross-examined about Kim's prior drug use and indicated that such use would not have required inpatient rehabilitation if Kim had not been shot. Cusumano agreed that he had opined Kim needed " rehab," regardless of the shooting, but denied that he meant inpatient treatment when he used that term.

Dr. Brian Lubberstedt was Kim's treating psychiatrist. Lubberstedt was also extensively questioned about Kim's prior drug use. Lubberstedt testified by deposition that Kim's prior use was recreational and that the prior use did not meet any of the criteria for alcohol or chemical dependency. Lubberstedt and counsel for Gen-X had the following exchange:

[Gen-X counsel:] And you indicated also that you couldn't tell for sure

Page 269

whether . . . Kim had alcohol and drug dependency prior to the shooting because you hadn't seen him prior to the shooting?
[Lubberstedt:] Correct.
Q. Isn't it also true that you can't say for sure whether the rehab, inpatient rehab that he went through was a result of solely the shooting or whether it was something that he would ...

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