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Simmons v. Precast Haulers, Inc.

Supreme Court of Nebraska

July 3, 2014

MICHAEL SIMMONS, APPELLEE AND CROSS-APPELLANT,
v.
PRECAST HAULERS, INC., AND CHEROKEE INSURANCE COMPANY, ITS WORKERS' COMPENSATION INSURER, APPELLANTS AND CROSS-APPELLEES

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Appeal from the Workers' Compensation Court: LAUREEN K. VAN NORMAN, Judge.

AFFIRMED.

Gregory D. Worth, of McAnany, Van Cleave & Phillips, P.A., for appellants.

Travis Allan Spier, of Atwood, Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., for appellee.

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

OPINION

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[288 Neb. 481] McCormack, J.

NATURE OF CASE

Michael Simmons, while employed by Precast Haulers, Inc., sustained extensive injuries when he was run over by a fully loaded tractor-trailer. Precast Haulers concedes that the injuries and the related medical bills are compensable, but on appeal, Precast Haulers challenges the trial court's order requiring it to provide a wheelchair-accessible van; to pay for the in-home care provided by Michael's wife, Courtney Simmons; and to pay for Michael's attorney fees under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012). Michael cross-appeals for additional attorney fees.

BACKGROUND

The parties stipulated that Michael was employed by Precast Haulers on October 14, 2011, when he sustained compensable injuries to his whole body during the course of his employment. At the time of the accident, Michael was attempting to activate a hydraulic lever on a tractor-trailer when he slipped and fell to the ground. The tires of the fully loaded tractor-trailer ran over Michael's body, crushing him.

Michael suffered extensive crush injuries from the accident. His injuries included the following: complex pelvic fractures; bowel and bladder dysfunction; lumbar spine fracture; SI joint crush injury; retroperitoneal hemorrhage; urethral injury; fractures to his hands, arms, feet, ankles, and legs; Chopart's amputation of his right foot; left upper arm degloving injury; skin grafting; ileus; traumatic neuropathy; buttocks pressure [288 Neb. 482] wounds; scrotal injury; rectal injury; abdominal wall wounds; splenic injury; bladder rupture; depression; anxiety; adjustment disorder; posttraumatic stress disorder; and cognitive defects. Michael's right foot was amputated. Michael's left foot required multiple grafting surgeries.

Due to his injuries, Michael was hospitalized from October 14 to December 23, 2011. Complications from his injuries required him to be in and out of inpatient care for several more months after December 23.

When Michael did return home, he required 24-hour in-home nursing to allow him to continue his outpatient recovery and rehabilitation. The uncontested evidence at trial establishes that Michael cannot care for himself without assistance. He needs assistance with everything from preparing food to bathing. Michael requires assistance to change his catheter and colostomy bags. Michael's wounds require bandages to be changed and for the wounds to be packed.

Additionally, Michael has limited mobility and needs assistance moving. When he first returned home, Michael was unable to stand and required assistance to get into and out of his recliner. Due to repeated surgeries, Michael has had to learn how to walk three different times. At the time of trial, Michael could walk with his walker only 30 to 50 yards before needing a break. Michael primarily uses a heavy manual wheelchair for mobility. The heavy wheelchair was on loan from the University of Kansas Hospital. Precast Haulers' insurance company did not provide Michael with a manual wheelchair until a week before the trial, which was held on May 30, 2013.

The wheelchairs Michael was provided with are heavy and cannot roll on carpet very well. Michael cannot push himself through his yard and cannot move on his gravel driveway. He cannot put the

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wheelchair in a vehicle himself, and it is difficult for Courtney to do so. Michael testified that he can drive a car and that he still has his license. However, when he drives by himself, he has to leave his nonmotorized wheelchair in the driveway.

Michael's doctors recommended that he receive custom wheelchairs and a wheelchair accessible van. In February 2012, Michael was issued a " Physician's Order" to receive a [288 Neb. 483] custom powered wheelchair, a custom manual wheelchair, and a wheelchair accessible van. Numerous other similar orders were subsequently made. In an affidavit, one of Michael's treating physicians concurred with his associate physicians that Michael required a custom manual wheelchair, a custom powered wheelchair, a powered scooter, and a wheelchair accessible van to assist in his outpatient recovery and rehabilitation from his work-related injuries.

Michael's 24-hour in-home care was originally provided by hired professionals. However, after 1 1/2 months of 24-hour care, Michael could not tolerate having a night nurse. Michael's wife, Courtney, took over Michael's care from 7 p.m. to 7 a.m. Monday through Friday and for 24 hours per day on the weekends. During the week, Courtney works a full-time job outside the home. Therefore, from 7 a.m. to 7 p.m., Monday through Friday, Robin Chynoweth, a certified nursing assistant, provides Michael's care.

Courtney has replaced all but one of the certified nursing assistants. With the help of her son, Courtney provides care for Michael 108 hours per week. She testified that for a 6-month period, she moved an air mattress into the living room, where Michael slept, to care for him overnight. She provides all of the care of a nursing professional. In addition to the services provided by Chynoweth, Courtney changes Michael's fentanyl ...


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