Nebraska Court: Injured Employee Failed to Establish Spinal Cord Stimulator Was Reasonable and Necessary

A Nebraska appellate court, in Yost v. Davita, Inc., 23 Neb. App. 482, 2015 Neb. App. LEXIS 204 (Dec. 29, 2015), affirmed a compensation court’s decision that an employer was not required to pay for the cost of an injured worker’s spinal cord stimulator where the injured employee’s own testimony revealed that while the stimulator alleviated some of the secondary symptoms the employee suffered, it did not actually alleviate the pain in her lower back—her primary ongoing medical condition. The appellate court added that while the injured employee offered medical evidence that the spinal cord stimulator was causally related, reasonable, and necessary to treat her work-related injuries, three other medical experts disagreed and it was for the compensation court to resolve the conflict in the medical evidence.

Background

Yost suffered a work-related injury to her lower back in 2008 and was initially awarded a 35 percent permanent loss of earning capacity. Two years later, she sought to modify the award, alleging that she suffered material and substantial changes in her physical condition and an increase in incapacity due to her work-related injuries. The parties agreed that Yost had suffered an increase in disability and that she was entitled to all reasonable and necessary future medical care for her low-back injuries as well as her depression symptoms. Following spinal fusion surgery, Yost sought reimbursement for a spinal cord stimulator. The compensation court found that the stimulator was not reasonable medical treatment since, among other things, it may have helped her functionality but did not aid in her return to work.

Appellate Court’s Decision

The appellate court agreed with the compensation court. It noted that Neb. Rev. Stat. § 48–120(1)(a) (Supp. 2015) required three factors be established before payment for a medical service is required: that the service (1) is reasonable, (2) is required by the work injury, and (3) will relieve pain or promote or hasten the employee’s restoration to health and employment. The appellate court indicated the compensation court had credited the testimony of three medical experts who opined that the use of the spinal stimulator was unnecessary for treatment of the injured employee’s condition.

The compensation court had also noted the employee herself testified that while the stimulator afforded some relief to her secondary symptoms, it did not relieve her of her primary problem—low back pain. When questioned by one of the medical experts, the employee rated her low back pain—after use of the stimulator—to a “6 or 7 out of 10.” The appellate court concluded that given the medical testimony and the employee’s own testimony of the limited relief the stimulator provided, it could not say the compensation court was clearly wrong in determining that the spinal cord stimulator was not a reasonable service for which the employer was liable.

To be sure, the appellate court indicated, Yost’s medical providers disagreed with the employer’s experts and opined that the spinal cord stimulator was causally related, reasonable, and necessary to treat Yost’s work-related injuries. The appellate court said the compensation court, however, was the sole judge of the credibility and weight to be given medical opinions.

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