Massive Stroke After MMI Does Not Result in Loss of Nebraska PTD Benefits

Where an employee sustained work-related injuries, reached maximum medical improvement (MMI), and, based on factual findings by Nebraska’s Workers’ Compensation Court (WCC), was adjudged to be permanently and totally disabled, a subsequent stroke that left her completely incapacitated and unable to care for herself did not result in the loss of her permanent total disability benefits, held the Supreme Court of Nebraska [Krause v. Five Star Quality Care, 301 Neb. 612, 2018 Neb. LEXIS 188 (Nov. 16, 2018). In its holding, the high court was not swayed by the employer’s argument that the employee’s continuing disability was caused by her stroke, and not the work-related injury.

Background

The employee, a housekeeper, sustained injuries in February 2013, when she slipped and fell, fracturing her right femur. She was afforded medical care, but did not file her petition in the compensation court until September 2015. Three weeks later, she suffered a catastrophic stroke that was wholly unrelated to the work-related injury and its subsequent treatment. Trial was held in November 2017. The employee appeared, but did not testify, because her stroke left her unable to communicate verbally.

Workers’ Compensation Court’s Decision

There was a conflict in the medical evidence, not so much as to the employee’s treatment, but as to whether the employee had reached MMI prior to sustaining her stroke. Weighing that evidence, the WCC concluded that the employee had reached MMI on October 8, 2015 (the date of one of her medical exams), awarded temporary disability benefits up to that date, and found that her injuries had rendered the employee permanently and totally disabled from the point of MMI. The WCC acknowledged that no vocational rehabilitation counselor had offered an opinion on the employee’s loss of earning capacity, but it utilized what amounted to “odd-lot” principles to find that, based upon her educational background, vocational/employment history, self-described physical limitations (prior to the stroke), and the restrictions imposed upon her by medical providers, she was permanently and totally disabled.

Employer’s Argument: Stroke “Cut Off” Employee’s Entitlement to PTD Benefits

The Supreme Court of Nebraska indicated it had not previously considered the question preferred by the employer: whether an employee who has a compensable permanent total disability can, consistent with the Nebraska Workers’ Compensation Act, be deprived of ongoing total disability benefits because of a subsequent noncompensable injury that independently causes permanent disability. The Court concluded this presented a question of law.

The Court stressed that the only legal support the employer had offered for its position was a single sentence in Nev. Rev. Stat. § 48-121(1), which provides:

Nothing in this subdivision shall require payment of compensation after disability shall cease.

Thus, the employer’s theory was that the permanent total disability caused by the employee’s work injury “ceased” on the date of her stroke, apparently reasoning that if she had not already been permanently and totally disabled from the work accident, the stroke would have rendered her so.

Analogy to Worker’s Death

The Court reasoned that the employer had analogized the situation to the non-work-related death of an employee receiving PTD payments. In other words, had the employee succumbed from complications related to her stroke, her entitlement to PTD benefits would have been cut off on the date of her death.

No Support for Analogy

The Court found that the employer’s death analogy was neither factually nor legally supported. The employee survived her stroke; nothing in the record supported the contention that her work-related disability ceased once she had the stroke. To the contrary, the Court stressed, the evidence supported that the employee was permanently and totally disabled from a work accident injury at the time she had her stroke, and she remained so afterward.

Employer Could Not Rely Upon “Modification” Argument

The Court further noted that while the employer had not framed its argument as one seeking to modify an award, the employer basically sought to terminate the employee’s award of PTD benefits due solely to her subsequent stroke. The Court acknowledged that Nebraska’s workers’ compensation statutes allowed an award to be modified on the ground of increase or decrease of incapacity due solely to the injury. The Court stressed, however, that the employer was claiming the change in disability was due to the stroke, not the work injury, so the modification statute did not support the employer’s requested relief. The fact that the employee suffered a subsequent stroke that was neither medically nor causally related, did not relieve the employer of its obligation to pay PTD benefits under the Nebraska Workers’ Compensation Act.

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