Tuesday, October 24, 2006
Nebraska Court of Appeals reverses modified worker compensation award when trial court added workers depression as a compensable disability without finding the depression was due solely to the injured workers injuryHubbart v. Hormel Foods Corp., 15 Neb. App. 129 Filed October 24, 2006. No. A-06-096 The appeals court interprets Sec48-141 RRS Neb. to require that the additional disability be solely due to an increase in disability related to the initially awarded condition. Here although the company did not treat the injured worker well in refusing to pay for her carpal tunnel syndrome, the depression was not solely due to this, as the injured worker also had been arrested unemployed and on drugs. To obtain a modification, an applicant must prove, by a preponderance of evidence, that the increase or decrease in incapacity was due solely to the injury resulting from the original accident. Bronzynski v. Model Electric, 14 Neb. App. 355, 707 N.W.2d 46 (2005). The applicant must prove there exists a material and substantial change for the better or worse in the condition--a change in circumstances that justifies a modification, distinct and different from the condition for which the adjudication had previously been madeWe find that the trial court evaluated Hubbart's application to modify based on her depression using an incorrect standard. In its November 5, 2004, award, the trial court noted the following: "It is not necessary [Hubbart] establish that her depression was caused solely or exclusively by her physical injuries, loss of function and pain syndrome. The evidence does establish her injuries to be a significant, contributing cause of her depression which at present renders her temporarily totally disabled." However, as noted above, in order to obtain a modification to a prior award, an applicant must prove that the increase in his or her incapacity was due solely to the injury resulting from the original accident. Therefore, we find that the portion of the trial court's award finding Hubbart to be temporarily totally disabled as a result of her depression must be reversed and that the cause must be remanded to the review panel for remand to the trial court for evaluation of the claim using the proper standard.
Posted by stan_sipple at 9:25 AM