Zitterkopf v. Aulick Indus.

JAmes ricK Z itterKopf , AppeLLee , v . A uLicK industries
And the united fire group , its worKers ’
compensAtion cArrier , AppeLLAnts .
753 N.W.2d 370
Filed July 1, 2008. 	No. A-07-1174.
1. Workers’ Compensation: Appeal and Error. On appellate review, the findings of
fact made by the trial judge of the Workers’ Compensation Court have the effect of
a jury verdict and will not be disturbed unless clearly wrong.
2. Workers’ Compensation: Liability. Neb. Rev. stat. § 48-120(1)(a) (Cum. supp.
2006) provides that the employer is liable for all reasonable medical, surgical, and
hospital services, including medicines as and when needed, which are required
by the nature of the injury and which will relieve pain or promote and hasten the
employee’s restoration to health and employment.
3. Workers’ Compensation. In order to accomplish the beneficent purpose of the
Nebraska Workers’ Compensation Act, it should be broadly construed.
4. ____. In workers’ compensation cases, there must be a causal relationship between
the original compensable injury and the medical care.
5. Workers’ Compensation: Evidence: Appeal and Error. In testing the sufficiency
of the evidence to support the findings of fact made by the Workers’ Compensation
Court, the evidence must be considered in the light most favorable to the successful
party, and the factual findings by the compensation court have the same force and
effect as a jury verdict in a civil case.
6. Expert Witnesses. The sufficiency of an expert’s opinion is judged in the context
of the expert’s entire statement.
7. Workers’ Compensation: Appeal and Error. When the record in a workers’ com-
pensation case presents conflicting medical testimony, an appellate court will not
substitute its judgment for that of the compensation court.
8. Workers’ Compensation: Proof. In order to recover under the Nebraska Workers’
Compensation Act, a claimant has the burden of proving by a preponderance of the
evidence that an accident or occupational disease arising out of and occurring in
the course of employment proximately caused an injury which resulted in disability
compensable under the act.
9. Proximate Cause: Words and Phrases. A proximate cause is a cause that pro-
duces a result in a natural and continuous sequence and without which the result
would not have occurred.
Appeal from the Workers’ Compensation Court. Affirmed.
John F. simmons, of simmons Olsen Law Firm, p.C., for
appellants.
Jerald L. Ostdiek, of Douglas, Kelly, Ostdiek & Bartels, p.C.,
for appellee.
zITTERKOpF v. AULICK INDUs. 	829
Cite as 16 Neb. App. 829
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

sievers , moore, and cAsseL, Judges.
cAsseL, Judge.
INTRODUCTION
The original workers’ compensation award, which found
existing both a compensable injury and unrelated sleep apnea,
granted future medical care. In this appeal, we consider whether
medication deemed necessary both to treat the sleep apnea and
to reduce the side effects of injury-related pain medication quali-
fies for the benefit. Because we find the evidence sufficient to
support the trial judge’s award requiring the employer to pay for
the medication, we affirm.
BACKGROUND
Aulick Industries (Aulick) employed James Rick zitterkopf
as a welder. The United Fire Group (United) provides Aulick’s
workers’ compensation insurance. On April 29, 1999, zitterkopf
was injured in a work-related explosion.
On February 3, 2006, the Nebraska Workers’ Compensation
Court entered an award determining that zitterkopf was totally
and permanently disabled as the result of the 1999 accident,
which arose out of and in the course of his employment by
Aulick. The award required Aulick to pay for zitterkopf’s future
medical care as required by Neb. Rev. stat. § 48-120 (Cum.
supp. 2006). The award also determined that zitterkopf was
subject to severe obstructive sleep apnea and hypersomnia,
which are congenital and not related to his employment. The
award denied medical expenses for treatment of the obstructive
sleep apnea. No appeal was taken from the original award.
On May 26, 2006, zitterkopf filed a motion to compel Aulick
to pay for provigil, which he alleged was necessary “because
of the side effects from the pain medications which [he was]
prescribed because of the work[-]related injury.” On November
20, the Workers’ Compensation Court trial judge conducted an
evidentiary hearing. To the extent necessary, we will discuss the
specific evidence in the analysis section below.
On March 20, 2007, the trial judge entered an order requiring
Aulick to pay for the medication. The judge found that provigil
was prescribed for two reasons: (1) to treat the unrelated
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condition of sleep apnea and (2) to treat the drowsiness due to
pain medication required because of the work-related injuries.
The judge concluded that zitterkopf was only required to prove
that “one of the reasons for the prescription . . . is for treat-
ment of side effects of pain medication.” Analogizing to an
employee’s entitlement to benefits where a work-related injury
combines with a preexisting condition to produce disability,
the judge stated that “[t]he same would hold true where the
necessity of prescribed medication is caused by pain medica-
tion used to treat the injury arising out of and in the course
of the employee’s employment also but [sic] is used to treat
a preexisting condition or condition unrelated to the compen-
sable accident.”
Aulick and United petitioned for panel review. The Workers’
Compensation Court review panel summarily affirmed, finding
that “the judgment is based on findings of fact which are not
clearly wrong and no error of law appears.”
Aulick and United timely appeal to this court.
AssIGNMENT OF ERROR
Aulick and United assign that the trial court erred in ordering
them to pay for provigil.
sTANDARD OF REVIEW
[1] On appellate review, the findings of fact made by the trial
judge of the Workers’ Compensation Court have the effect of
a jury verdict and will not be disturbed unless clearly wrong.
Murphy v. City of Grand Island, 274 Neb. 670, 742 N.W.2d
506 (2007).
ANALYsIs
[2] section 48-120(1)(a) authorizes an award of future medical
expenses, including necessary medication. section 48-120(1)(a)
provides: “The employer is liable for all reasonable medical,
surgical, and hospital services, including . . . medicines as and
when needed, which are required by the nature of the injury and
which will relieve pain or promote and hasten the employee’s
restoration to health and employment . . . .”
This 	statutory 	section 	also 	empowers 	the 	Workers’
Compensation Court to determine whether such expenses are
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Cite as 16 Neb. App. 829

necessary. “The compensation court shall have the authority to
determine the necessity, character, and sufficiency of any medi-
cal services furnished . . . .” § 48-120(6).
[3] 	The 	Legislature 	enacted 	the 	Nebraska 	Workers’
Compensation Act in order to relieve injured workers from the
adverse economic effects caused by a work-related injury or
occupational disease. Foote v. O’Neill Packing, 262 Neb. 467,
632 N.W.2d 313 (2001). In order to accomplish the beneficent
purpose of the act, it should be broadly construed. see id. In
Foote, the Nebraska supreme Court rejected the notion that the
workers’ compensation trial court lacked the authority to order,
as part of a final award, payment of future medical expenses
incurred more than 2 years after the date of the last payment,
even if the medical expenses were reasonable and necessary and
a result of the disabling injury. The supreme Court recognized
that the only limitation on medical benefits set forth in § 48-120
is that the treatment be reasonable and that the compensation
court has the authority to determine the necessity, character, and
sufficiency of the treatment furnished.
This broad construction nonetheless contemplates a causal
connection between the compensable injury and the future medi-
cal care. “The employer, of course, may contest any future
claims for medical treatment on the basis that such treatment
is unrelated to the original work-related injury . . . or that the
treatment is unnecessary or inapplicable.” 262 Neb. at 476, 632
N.W.2d at 321.
[4] An often-cited treatise states this principle as follows:
“There must, of course, be a causal relationship between the
original compensable injury and the medical care.” 5 Arthur
Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 94.03[1] at 94-38 n.2 (2007). The writers cited a case in which
a court of appeals affirmed an administrative decision determin-
ing that testing the worker for cardiac disease was not related to
his work-related rib injury and declining to require the employer
to pay for the testing. Id. (citing Stewart v. Dist. of Col. D. of
Emp. Sec., 606 A.2d 1350 (D.C. 1992)).
In the case before us, the trial judge determined that provigil
was necessary to address zitterkopf’s reaction to the pain medi-
cation. The judge relied upon expert medical testimony. The first
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question posed is whether the evidence is sufficient to support
the trial judge’s finding.
[5] In testing the sufficiency of the evidence to support the
findings of fact made by the Workers’ Compensation Court,
the evidence must be considered in the light most favorable to
the successful party, and the factual findings by the compensa-
tion court have the same force and effect as a jury verdict in a
civil case. Murphy v. City of Grand Island, 274 Neb. 670, 742
N.W.2d 506 (2007).
Viewed in that light, the evidence shows that provigil is
medically necessary for at least two purposes: (1) to treat the
side effects of pain medication necessitated by the compensable
injury and (2) to treat the unrelated sleep apnea.
The trial judge primarily relied upon the evidence of Dr.
Elena zerpa, zitterkopf’s treating psychiatrist, who prescribed
provigil. zerpa responded to two questionnaires of zitterkopf’s
counsel and later testified by deposition.
The questionnaires naturally focus on the compensable pur-
pose. In the first questionnaire, signed on February 9, 2005,
zerpa opined that zitterkopf’s “current pain medications and
pain from his 4/22/99 work[-]related injury contribute to his
extreme fatigue” and that “the prescribed provigil [is] necessary
because of [zitterkopf’s] extreme fatigue.” In a questionnaire
signed by zerpa on March 10, 2006, she agreed that provigil
was “primarily necessitated by the side effects from the pain
medication which . . . zitterkopf is taking because of the 1999
work[-]related injury.”
zerpa’s August 2006 deposition provides a more nuanced
analysis:
Q. . . . [Y]ou testified that there are at least two different
things that are causing his drowsiness?
A. Right, so far.
Q. The sleep apnea and the side effects. And . . . you
signed a letter sometime in March of 2006, right?
A. Uh-huh.
. . . .
Q. Would you still agree though that . . . one of the pri-
mary reasons for the provigil is the side effects from the
pain medication?
zITTERKOpF v. AULICK INDUs. 	833
Cite as 16 Neb. App. 829

A. Again, I cannot say it’s just one thing. I think it’s
part of —
Q. It’s one of —
A. It’s one of the reasons.
[6] While Aulick and United focus upon zerpa’s admission
that she could not isolate each factor in analyzing medical
necessity, the trial judge resolved zerpa’s testimony favorably to
zitterkopf. When asked whether zitterkopf would need provigil
if he did not have sleep apnea, zerpa stated, “I can’t say that.
I will not be able to answer that question.” similarly, zerpa
resisted focusing solely on the side effects of the injury-related
pain medication. The sufficiency of the expert’s opinion is
judged in the context of the expert’s entire statement. Paulsen v.
State, 249 Neb. 112, 541 N.W.2d 636 (1996). We cannot say that
the trial judge’s view of this evidence was clearly wrong.
[7] Aulick and United prefer the evidence of another phy-
sician, but the law empowers the trial judge to resolve con-
flicting medical testimony. Dr. Oscar sanchez, a pain control
specialist, testified by deposition that (1) when he first saw
zitterkopf, all of zitterkopf’s symptoms were secondary to the
sleep apnea, more than zitterkopf’s then-current medications;
(2) zitterkopf’s extreme drowsiness was more likely the result
of the sleep apnea than of a reaction to the pain medication; (3)
provigil was more indicated for the symptoms of sleep apnea;
and (4) it was more likely that provigil was for the sleep apnea.
however, like zerpa, sanchez could not opine whether, assum-
ing that zitterkopf did not have sleep apnea, provigil would
be appropriate for zitterkopf. When the record in a workers’
compensation case presents conflicting medical testimony, an
appellate court will not substitute its judgment for that of the
compensation court. Lowe v. Drivers Mgmt., Inc., 274 Neb. 732,
743 N.W.2d 82 (2007). We decline to substitute our judgment
regarding the conflict between the evidence of zerpa and that
of sanchez. The trial judge’s resolution of such conflict was not
clearly wrong.
having determined that the trial judge was not clearly wrong
in determining that provigil was necessary for both a compen-
sable and a noncompensable purpose, we turn to the second
question presented by this appeal: whether the employer is
834 	16 NEBRAsKA AppELLATE REpORTs

required to pay for such medication under the original award.
The trial judge relied upon Heiliger v. Walters & Heiliger
Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990), in which
the Nebraska supreme Court rejected an enhanced degree of
proof requirement in workers’ compensation cases involving a
preexisting condition or disability. In Heiliger, the court returned
to its earlier articulation of the governing rule: To sustain an
award in a workers’ compensation case involving a preexist-
ing disease or condition, it is sufficient to show that the injury
resulting from an accident arising out of and in the course of
employment and the preexisting disease or condition combined
to produce disability, or that the employment injury aggravated,
accelerated, or inflamed the preexisting condition. This burden
of proof, the court stated, requires the claimant to correspond-
ingly negate that the unrelated condition is the sole cause of the
disability. see id. In the instant case, the trial judge reasoned that
because the medication was necessary for both the compensable
and the unrelated purposes, zitterkopf established a sufficient
causal relationship.
[8,9] Aulick and United argue that the “but for” portion of
the requirement of proximate cause precludes their liability for
the expense of provigil. In order to recover under the Nebraska
Workers’ Compensation Act, a claimant has the burden of prov-
ing by a preponderance of the evidence that an accident or
occupational disease arising out of and occurring in the course
of employment proximately caused an injury which resulted in
disability compensable under the act. Sweeney v. Kerstens &
Lee, Inc., 268 Neb. 752, 688 N.W.2d 350 (2004). A proximate
cause is a cause that produces a result in a natural and con-
tinuous sequence and without which the result would not have
occurred. Id. The latter portion of this definition articulates the
“but for” requirement, which clearly applies in workers’ com-
pensation cases.
We agree that the employer would not be liable where treat-
ing the unrelated condition is the sole purpose of the medica-
tion. Under the analogy to Heiliger, zitterkopf had the burden
of proving that the sleep apnea was not the sole reason for the
prescription of provigil. zitterkopf met this burden by prov-
ing that both the side effects and the apnea necessitated the
zITTERKOpF v. AULICK INDUs. 	835
Cite as 16 Neb. App. 829

medication. But Aulick and United would impose a significantly
different burden, requiring zitterkopf to prove that medication
“would not have been prescribed in the absence” of the work-
related injury. Brief for appellants at 17. In effect, Aulick and
United’s standard would require zitterkopf to prove that the
sleep apnea did not provide any reason for the prescription. We
find no merit to this argument.
We return to the articulation in Foote v. O’Neill Packing,
262 Neb. 467, 632 N.W.2d 313 (2001), which contemplated an
employer contesting future claims for medical treatment on the
basis that such treatment is unrelated to the original work-related
injury. Requiring the employee to prove that the unrelated con-
dition is not the sole cause for the treatment merely restates
the necessity of a causal connection between the original com-
pensable injury and the medical treatment—in other words, the
employee must prove that the treatment is related to the original
injury. In the instant case, the trial judge’s finding that zitterkopf
met this burden was not clearly wrong.
CONCLUsION
Under the deferential standard of review accorded to factual
determinations of a workers’ compensation trial judge, we find
no clear error in the determination that provigil was necessary
to treat both the work-related side effects of pain medication
and the unrelated condition of sleep apnea. We also determine
that the trial judge’s decision correctly applied the law requiring
a causal connection between the original work-related injury
and the subsequent medical treatment. Accordingly, we affirm
the order of the review panel which affirmed the order of the
trial judge.
A ffirmed .
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