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Hynes v. Good Samaritan Hosp.

Supreme Court of Nebraska

September 4, 2015

KIMBERLY L. HYNES, APPELLEE,
v.
GOOD SAMARITAN HOSPITAL, A NEBRASKA NONPROFIT CORPORATION, APPELLANT

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Appeal from the Workers' Compensation Court: MICHAEL K. HIGH, Judge.

Thomas D. Wulff, of Wulff & Freeman, L.L.C., for appellant.

John C. Fowles, of Fowles Law Office, P.C., L.L.O., for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STEPHAN, J., not participating.

OPINION

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[291 Neb. 759] Wright, J.

NATURE OF CASE

Good Samaritan Hospital (Good Samaritan) appeals from an award entered by the Nebraska Workers' Compensation Court on November 24, 2014. The court found the claimant, Kimberly L. Hynes, sustained a 100-percent loss of earning power due to psychological injuries resulting from three assaults that occurred in the course of her employment at a hospital. Good Samaritan contends that Hynes failed to produce sufficient evidence to sustain the award, that the Workers' Compensation Court improperly connected noncompensable injuries to the compensable injury, and that the compensation court should have excluded the psychiatric report of Hynes' expert from evidence.

For the reasons discussed below, we affirm the findings and award of the Workers' Compensation Court.

SCOPE OF REVIEW

Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there [291 Neb. 760] 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. Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009). Determinations by a trial judge of the Workers' Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in light of the evidence. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008). Admission of evidence is within the discretion of the Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).

FACTS

This is the second time the case has been before this court. In Hynes v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013), we vacated the award because the testimony of the employer's witnesses had been lost due to no fault of either party and, therefore, the record was insufficient to undertake a meaningful appellate review of the case. We remanded the cause for a new trial.

On remand, the parties stipulated that Hynes had been employed as a registered nurse by Good Samaritan in Kearney, Nebraska, and also stipulated to her average weekly wage. Hynes alleged that she suffered from posttraumatic stress disorder (PTSD) and depression as a result of three incidents which occurred in the course of her employment as a nurse in the mental health unit of Good Samaritan and that these incidents left her unable to work.

On April 16, 2008, a patient " whipped" Hynes several times with a large vacuum cleaner cord and punched her in the jaw. Hynes suffered bruising and substantial pain as a result of the assault. This was the only incident for which Hynes sought medical treatment for a physical injury.

[291 Neb. 761] Following this incident, Hynes tearfully discussed the assault with an employee assistance program counselor, Roni Norman. She reported having difficulty eating and sleeping following the assault

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and stated she did not feel safe returning to the adolescent unit. On April 23, 2008, Hynes again visited Norman. Hynes was tearful and described experiencing feelings of extreme hypervigilance and sensitivity to noises and movement, as well as nightmares and disturbing dreams. Followup meetings between Hynes and Norman on May 22, May 28, and June 2, revealed Hynes' increasing feelings of hopelessness and helplessness, flashbacks, dreams of the assault, strained communication problems, and difficulty functioning in her professional, social, and personal life.

In the meeting with Norman on June 2, 2008, Hynes described a second incident, where she was assaulted by a patient the previous week. Hynes was kicked and was bitten on the arm by a patient. She did not seek medical treatment for the alleged physical injuries.

Following these assaults, Hynes' symptoms worsened severely. On June 11, 2008, Hynes reported to Norman that she had been experiencing panic attacks, hypersensitivity to loud noises, loss of appetite, social withdrawal, and general feelings of anxiety and depression.

On July 6, 2008, Hynes reported a third incident to Norman which occurred while Hynes was working in the male portion of the adolescent/youth unit of the hospital. A male adolescent grabbed Hynes and made " extremely aggressive" sexual comments to her. Hynes did not receive ...


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