Adams v. Cargill Meat Solutions

A shley A dAms , Appellee , v. CArgill
meAt solutions , AppellAnt.
774 N.W.2d 761
Filed June 23, 2009. 	No. A-08-975.
1. Workers’ Compensation. Workers’ compensation law authorizes an award of
future medical expenses, including necessary medication.
2. Workers’ Compensation: Stipulations. Before an order for future medical bene-
fits may be entered in a workers’ compensation case, there should be a stipulation
of the parties or evidence in the record to support a determination that future
medical treatment will be reasonably necessary to relieve the injured worker from
the effects of the work-related injury.
3. Workers’ Compensation: Evidence. An award of future medical expenses in a
workers’ compensation case requires explicit evidence that future medical treat-
ment is reasonably necessary to relieve the injured worker from the effects of the
work-related injury.
Appeal from the Workers’ Compensation Court. Reversed
and remanded with directions.
James D. Hamilton and Amanda A. Dutton, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellant.
Jon Rehm, of Rehm, Bennett & Moore, P.C., L.L.O., for
appellee.
irwin, CArlson, and moore, Judges.
irwin, Judge.
I. INTRODUCTION
Cargill Meat Solutions (Cargill) appeals an order of a three-
judge review panel for the Nebraska Workers’ Compensation
Court. Cargill argues that the review panel erred in affirming
the trial court’s determination that Ashley Adams was entitled
to certain benefits as a result of her work-related injury.
Specifically, Cargill argues that the trial court’s award of
future medical expenses to Adams was not supported by suf-
ficient evidence.
Upon our review, we find that Adams failed to present suf-
ficient evidence to prove that future medical treatment will
be reasonably necessary to relieve the effects of her work-
related injury. As such, we find that the review panel erred in
708 	17 NEBRASkA APPELLATE REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

affirming the trial court’s award of future medical expenses.
We reverse, and remand to the review panel with directions to
reverse the award of future medical expenses and remand the
matter to the trial court to modify the award in accordance with
this opinion.
II. BACkGROUND
On March 18, 2005, Adams was working at Cargill as a
scale operator when several boxes fell off of a pallet and hit
her. As a result of this incident, Adams suffered injuries to the
right side of her back.
On December 7, 2006, Adams filed a petition alleging that
she had been injured in the scope and course of her employ-
ment with Cargill. She indicated that she injured her “lower
right back” and that she continues to experience pain in her
back and pain and numbness in her right leg. Adams requested
temporary disability benefits; permanent disability benefits;
payment of medical expenses; vocational rehabilitation bene-
fits; and waiting-time penalties, attorney fees, and interest.
On December 22, 2006, Cargill filed an answer. Cargill
alleged that if Adams suffered any disability, it did not arise out
of or in the course of her employment at Cargill. Cargill stated
that payments had been made to Adams for all medical, surgi-
cal, and hospital expenses and for all compensation benefits to
which Adams was entitled.
On September 18, 2007, a trial was held. Prior to the admis-
sion of evidence, the parties informed the trial court that they
would stipulate that on March 18, 2005, Adams did sustain
an accident arising out of and in the course and scope of her
employment with Cargill. The parties then presented evidence
concerning Adams’ medical treatment since the time of the
accident, the degree of Adams’ impairment, and the cause of
Adams’ ongoing pain.
On December 7, 2007, the trial court entered an award of
benefits. The court found that Adams suffered a “chronic sprain
of her lower back” as a result of her work-related accident. The
court also found that Adams sustained a 5-percent loss of earn-
ing power as a result of the accident and ordered Cargill to pay
Adams permanent disability benefits. The court also ordered
ADAMS v. CARGILL MEAT SOLUTIONS 	709
Cite as 17 Neb. App. 708

Cargill to pay Adams for medical expenses she had incurred
prior to the time of trial and for future medical expenses.
In awarding Adams payment for future medical expenses,
the trial court noted: “[A] review of the evidence indicates that
[Adams] has carried her burden of proof and persuasion and
is, thus, entitled to such an award. Specifically the Court relies
upon the fact that [Adams] continues to take various prescrip-
tion medications for her ongoing back pain.”
On December 21, 2007, Cargill filed an application for
review before a three-judge review panel of the Nebraska
Workers’ Compensation Court, seeking a reversal of the trial
court’s award. Cargill alleged, among other things, that the trial
court erred in finding that Adams was entitled to an award of
future medical expenses.
In its August 19, 2008, order, the review panel affirmed
the trial court’s award of future medical expenses. The panel
pointed to evidence in the record which suggested that Adams
continued to take medication for her back injury at the time of
the trial. The panel then concluded:
Because that medication is a prescription medication, [the
trial court] inferred that at least one of [Adams’] physi-
cians was continuing to prescribe it for her and [the trial
court] also inferred from [Adams’] continued use of the
medication that it would continue into the future. The
review panel believes that such an inference is permis-
sible and the finding of an entitlement to future medical
care may be made without specific expert testimony on
the subject.
Cargill appeals from the order of the review panel here.
III. ASSIGNMENT OF ERROR
On appeal, Cargill argues that the review panel erred in
affirming the trial court’s award of payment for future medical
expenses associated with Adams’ work-related injury.
IV. STANDARD OF REVIEW
An appellate court may modify, reverse, or set aside a
Workers’ Compensation Court decision only when (1) the com-
pensation court acted without or in excess of its powers; (2) the
710 	17 NEBRASkA APPELLATE REPORTS

judgment, order, or award was procured by fraud; (3) there 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. Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746
N.W.2d 698 (2008).
On appellate review, the factual findings 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. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d
49 (2008).
V. ANALYSIS
The trial court awarded Adams payment for future medical
expenses associated with her work-related injury. The court
indicated that in awarding payment of future medical expenses,
it relied upon evidence that Adams “continues to take various
prescription medications for her ongoing back pain” and a
medical report which stated that Adams “has been taking . . .
medications.” On appeal, Cargill argues that this evidence is
insufficient to establish that future medical treatment will be
reasonably necessary to relieve the effects of Adams’ work-
related back injury. We agree.
[1] Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2008) autho-
rizes 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 ser-
vices, 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 . . . .”
[2] In construing § 48-120(1)(a), the Nebraska Supreme
Court has emphasized that before an order for future medical
benefits may be entered, there should be a stipulation of the
parties or evidence in the record to support a determination
that future medical treatment will be reasonably necessary to
relieve the injured worker from the effects of the work-related
injury. See Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d
313 (2001).
ADAMS v. CARGILL MEAT SOLUTIONS 	711
Cite as 17 Neb. App. 708

In this case, the parties did not stipulate to an award of
future medical expenses. As such, there must be evidence in
the record to support the trial court’s determination that future
medical treatment will be reasonably necessary to relieve the
effects of Adams’ back injury. Upon our review of the record,
we find insufficient evidence to support the trial court’s award
of future medical expenses to Adams.
At trial, there was no evidence presented to demonstrate
that Adams’ back injury required any future medical treatment.
Adams’ medical records indicate that her treating doctors could
provide no further treatment options.
Dr. Phillip Essay, who was employed at Nebraska Pain
Consultants, began treating Adams in December 2005. Dr.
Essay conducted numerous tests on Adams’ back, including an
MRI and a CT scan. Additionally, Dr. Essay provided Adams
with multiple pain medications, treatments, and referrals to
physical therapy. Medical records from Dr. Essay’s office
indicate that Adams last visited the clinic in March 2007. Dr.
Essay’s notes from this last visit indicate that Adams’ “pain
and symptoms are described as severe and yet I have no expla-
nation for them.” Dr. Essay stated his belief that a neurologic
disorder should be ruled out, but “[o]therwise, at this time I
don’t know what else to do for her either from a diagnostic or
therapeutic standpoint.”
Adams saw Dr. Lewiston Birkmann, a neurologist, in late
March 2007. During this visit, Dr. Birkmann recommended
that Adams undergo additional x rays and scans. He indicated
that if the scans were negative, “then I probably do not have
much else to offer.” Evidence in the record reveals that the
additional scans and x rays recommended by Dr. Birkmann
were completed in April 2007. The results were negative.
Dr. Rajesh kumar conducted an independent medical exami-
nation of Adams in May 2007. Dr. kumar found that Adams
had reached maximum medical improvement by the time of
his appointment with her. He noted that she has “a permanent
partial disability of 1% because of her back pain and restriction
of spine motion.” He also noted that Adams is allowed to do all
physical activities as tolerated. Dr. kumar did not provide any
712 	17 NEBRASkA APPELLATE REPORTS

indication that Adams would require any future medical treat-
ment for her injury.
At trial, Adams testified that she was currently taking pre-
scription medication for her back pain. She did not provide
any other testimony concerning the necessity of future medical
treatment. She did not testify as to whether or how long she
would have to continue to take the prescription medication,
and she did not testify that she would have to continue regular
treatment with any of her physicians. Additionally, Adams did
not testify that her pain medication was effective in treating her
injury. Rather, Adams testified that despite the pain medication
she was taking, her back was “sore” at the time of trial. She
also indicated that she continued to be unable to complete basic
household duties because of her ongoing pain, and she testified
that her “pain has increased from the day I got hurt.” Adams’
medical records reveal that no medication or treatment had ever
completely relieved Adams of her pain.
The evidence does not support the trial court’s determination
that Adams required further medical treatment for her back
injury. In awarding future medical expenses, the trial court
relied on Adams’ testimony that she was taking medication
at the time of trial and notations in Adams’ medical records
indicating her history of taking prescription pain medication.
Evidence that Adams currently takes pain medication or that
she has a history of taking such medication is not enough
to demonstrate that she requires future medical treatment to
relieve the effects of her injury. As such, the trial court’s find-
ing that Adams “carried her burden of proof and persuasion”
as to an award of future medical expenses is not supported by
sufficient evidence.
The review panel affirmed the trial court’s award of future
medical expenses after concluding that the evidence presented
at trial was sufficient to support an “inference” that Adams will
continue to take pain medication after the time of trial. Such an
inference is simply not supported by the evidence in the record.
There is no evidence that Adams intends to continue to take
her prescription pain medication. In fact, there is no indication
that Adams finds the medication to be beneficial. She testified
ADAMS v. CARGILL MEAT SOLUTIONS 	713
Cite as 17 Neb. App. 708

that even when she took the medication, she was in constant
pain and she could not complete basic daily tasks. In addition,
she testified that her pain had increased, rather than decreased,
since the time of the accident.
[3] Simply stated, an award of future medical expenses
requires explicit evidence that future medical treatment is
reasonably necessary to relieve the injured worker from the
effects of the work-related injury. Here, there is no evidence
that Adams requires any future medical treatment or that future
medical treatment would be in any way beneficial in relieving
the effects of her back injury.
Because there is no evidence to support the trial court’s find-
ing that future medical treatment will be reasonably necessary
to relieve the effects of Adams’ back injury, we find that the
trial court erred in awarding to Adams future medical expenses
incurred as a result of her work-related injury. Accordingly,
we conclude that the review panel erred in affirming the trial
court’s award.
VI. CONCLUSION
We find that Adams failed to present sufficient evidence to
prove that future medical treatment will be reasonably neces-
sary to relieve the effects of her work-related injury. For this
reason, we conclude that the review panel erred in affirming
the trial court’s award of future medical expenses. We reverse,
and remand to the review panel with directions to reverse
the award of future medical expenses and remand the mat-
ter to the trial court to modify the award in accordance with
this opinion.
reversed And remAnded with direCtions.
714 	17 NEBRASkA APPELLATE REPORTS