Lewis v. MBC Construction Co., Inc., 102517 NEWC, 0881

• Case Date: October 25, 2017
• Court: Nebraska

ALLEN MICHAEL LEWIS, Plaintiff, v. MBC CONSTRUCTION CO., INC., and CAROLINA CASUALTY INS CO., Defendants. No. 0881 Doc. 216 Nebraska Workers' Compensation October 25, 2017           Plaintiff: Justin W. High High & Younes           Defendant: Marc N. Middleton Adelson, Testan, Brundo, Novell & Jimenez           AWARD           JULIE A. MARTIN, JUDGE.          This cause came on for hearing before the Nebraska Workers’ Compensation Court in Omaha, Douglas County, Nebraska, on the 15th day of August, 2017, on the Petition and Motion for Summary Judgment of plaintiff, the Answer of defendants, and on the evidence. Judge Julie A. Martin, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendants were represented by counsel. Testimony was taken, evidence adduced, written closing arguments were subsequently received, cause fully submitted on September 22, 2017, and the Court, being fully advised in the premises, finds as follows:          I.          In his Petition, plaintiff alleged sustaining personal injuries arising out of and in the course of his employment with MBC Construction Company, Inc. on May 1, 2015. Specifically, he was injured when the track of an autopaving machine, weighing in excess twenty-five tons, rolled on him, crushing multiple body parts. In addition to various physical bodily injuries, plaintiff claims he has developed post-traumatic stress disorder, depression, and anxiety. Mr. Lewis is seeking compensation for these injuries.          For answer to the Petition, defendants admitted plaintiff was in the employ of MBC on May 1, 2015, and sustained some injury on that date.          In support of his claim, plaintiff offered Exhibits 31 through 54 and 60. Defendants objected to Exhibit 60, arguing it was not a complete record. The Court gave defendants leave to offer an additional exhibit post-trial, which was subsequently offered and received without objection as Exhibit 61. Defendants also offered Exhibits 39 and 55 through 59. Objection was made to Exhibit 55, the deposition transcript of Christina Lewis. Mrs. Lewis was called as a witness, and defendants had the opportunity to cross-examine her, so the objection was ultimately sustained. An objection as to relevancy and foundation was made to Exhibit 58, which the Court overruled. Hence, Exhibits 31 through 54 and 56 through 61 were received into evidence.          The Court was also asked to take judicial notice of various pleadings on file, which were copied and separately marked as follows: the Petition (E62), the Answer (E63), and the Orders of the Court dated August 31, 2016 (E64), September 21, 2016 (E65), October 14, 2016 (E66), March 3, 2017 (E67), March 15, 2017 (E68), April 14, 2017 (E69), and July 21, 2017 (E70).          Pursuant to the Order for Submission of Joint Pretrial Memorandum, the parties reached the following stipulations:

1. Venue and jurisdiction are proper.

2. Plaintiff was an employee of defendant MBC.

3. Plaintiff was involved in an accident and sustained an injury arising out of and in the course of his employment.

4. Plaintiff has been temporarily totally disabled since May 1, 2015, through and including the date of trial.

5. Plaintiff has not reached maximum medical improvement (MMI).

6. At the time of trial, the parties further advised the Court they have agreed and stipulated that plaintiff is entitled to additional ongoing medical treatment that is reasonable, necessary, and causally related to plaintiff’s May 1, 2015, accident, including but not limited to the lap band surgery and the costs associated with a service dog. Given the stipulation, plaintiff’s Motion for Summary Judgement is overruled as moot.

         The Court accepts the stipulations of the parties and so finds.          The remaining issues presented by the parties for resolution are as follows:

1. The value of the home healthcare services provided to plaintiff by plaintiff’s wife and children in the past;

2. The compensability and value of the home healthcare services provided to plaintiff by plaintiff’s wife and children ongoing;

3. Plaintiff’s average weekly wage for purposes of temporary and permanent disability;

4. Plaintiff’s entitlement to attorney’s fees, costs, and interest due to defendants’ failure to timely approve medical benefits pursuant to Neb. Rev. Stat. § 48-125.

5. Plaintiff’s entitlement to attorney’s fees, costs, and interest due to defendants’ failure to timely pay medical benefits pursuant to Neb. Rev. Stat. § 48-125.

         II.          THE VALUE OF HOME HEALTHCARE SERVICES PROVIDED TO PLAINTIFF BY HIS WIFE AND CHILDREN IN THE PAST AND ONGOING.          On May 1, 2015, plaintiff sustained a severe left leg crush injury arising out of and in the course of his employment with MBC. He was taken by Life Flight to the Nebraska Medical Center where he was hospitalized for one month. (E36, p.1). He was then transferred to Methodist Hospital for an inpatient rehabilitation program and dismissed to his home on June 12, 2015. (E36, p.2). He alleges his family has had to provide him home healthcare services necessitated by his injuries and is claiming compensation for those services from June 15, 2015, to the time of trial and continuing into the future.          An injured worker is entitled to recover the cost of home healthcare if three requirements are met: “(1) [t]he employer must have knowledge of the employee’s disability and need of assistance as a result of a work-related accident; (2) the care given by the spouse or other health care provider must be extraordinary and beyond normal household duties; and (3) there must be a means of determining the reasonable value of the services rendered by the spouse or other health care provider.” Quinn v. Archbishop Bergan Mercy Hospital, 232 Neb. 92, 95-6, 439 N.W.2d 507, 510 (1989). In order for the reasonable value of services provided by a plaintiff’s spouse to be compensable, the services must be medically necessary. Currier v. Roman L. Hruska U.S. Meat Animal Research Center., 228 Neb. 38, 45, 421 N.W.2d 25, 29 (1988); Kidd v. Winchell’s Donut House, 237 Neb. 176, 465 N.W.2d 442 (1991).          With respect to past services, defendants argued the first requirement, notice, was not met. The Court admittedly found some appeal with their argument at first glance. After a more in-depth look at the evidence, however, the Court finds defendants did have notice.          Part of defendants’ argument rests on the claim that there must be a prescription from a doctor to meet this condition. The Court does not agree. Although not addressing “knowledge” specifically, in Currier, supra, the Supreme Court, in affirming a Workers’ Compensation Court award of retroactive home healthcare, wrote the doctor in that case “had not prescribed any specific medical regimen after Currier's release from the hospital, he testified in his deposition that Currier needed assistance in everyday tasks.” Id. at 40-41, 421 N.W.2d 25, 27 (1988). In Quinn, supra, the Supreme Court upheld an award of home healthcare where the...