Nebraska Retail Worker Awarded TTD Benefits and Continued Medical Care to Deal With PTSD and Drug Dependency Following Work-Related Shooting

In a recent case with rather bizarre underlying facts, the Supreme Court of Nebraska affirmed an award of temporary total disability benefits for an employee’s PTSD condition and inpatient treatment for chemical dependency that worsened after the employee was shot at the employer’s premises [Kim v. Gen-X Clothing, Inc., 287 Neb. 927, 2014 Neb. LEXIS 59 (Apr. 11, 2014)]. Observing that the resolution of conflicting medical evidence was for the finder of fact, the Nebraska high court indicated it could not substitute its own findings for that of the Workers’ Compensation Court. 

Background

Kim worked as a manager at a retail clothing store. On June 28, 2011, assailants re-entered the store after an earlier robbery and shot Kim multiple times, apparently as revenge for Kim’s reporting of the earlier robbery at the store. Evidence further indicated that after the shooting, the perpetrators made telephone calls to Kim, further threatening him, his mother, and his son.

After the shooting, medical care providers diagnosed Kim as suffering from PTSD and chemical dependency. Kim freely admitted that prior to the shooting, he drank alcohol and was a recreational drug user. He testified, however, that after the shooting his use of alcohol and drugs began to increase. Kim further testified that he used the alcohol and drugs to help him sleep–he suffered nightmares multiple times each week–and to cope generally with the shooting.

The employer’s expert agreed with the diagnoses of PTSD and chemical dependency and further found that the employee’s panic, insomnia, and drinking were all related to his PTSD. The expert even opined that Kim’s insomnia and drug abuse were caused by the June 28, 2011, shooting and that inpatient treatment, including participation in a 12-step program, would be appropriate. The employer’s expert concluded, however, that Kim had reached MMI some nine months after the shooting and there was no objective medical evidence to indicate that Kim’s ongoing drug use was a consequence of the shooting or that he currently required treatment for PTSD. The employer’s expert also concluded that Kim was a lifelong abuser of recreational drugs and that he was falsely exaggerating or imputing his PTSD symptoms for secondary gain.

The Workers’ Compensation Court disagreed with the employer’s contentions and awarded TTD benefits, as well as medical treatment related to the chemical dependency.

Supreme Court’s Ruling

The state high court indicated that the case presented nothing more than conflicting expert opinions, that where the record presented such conflicting medical testimony, an appellate court would not substitute its judgment for that of the Workers’ Compensation Court.

The court observed that Kim’s medical expert testified that Kim’s prior drug use was recreational, that he was not dependent prior to the shooting and subsequent PTSD, and that the inpatient treatment was likely necessary as a result of the shooting. The employer’s expert opined that Kim was a lifelong drug user and that his current use and inpatient treatment were not related to his PTSD diagnosis. Kim testified that his drug use was recreational. Kim’s medical expert also indicated that at the time Kim began treatment, which was before Kim began to heavily self-medicate for the PTSD, he did not meet the definition of chemical dependency.

The supreme court concluded that the trial court was entitled to give more weight to Kim’s expert’s testimony than to that of the employer’s expert. The trial court was the sole judge of the credibility of the witnesses. As such, the Compensation Court did not err in concluding that the inpatient treatment was compensable.

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3 Responses to Nebraska Retail Worker Awarded TTD Benefits and Continued Medical Care to Deal With PTSD and Drug Dependency Following Work-Related Shooting

  1. John Chamberlain says:

    Ted,
    Isn’t this just a routine affirmation that if you lose on the facts, you lose. You can’t get a retrial before an appellate court.

    • Hi John,

      Indeed, the holding itself isn’t earth-shattering, but the facts were highly unusual. In addition to the award for PTSD which, of course, isn’t all that unusual these days, the claimant was awarded medical care for drug dependency–not dependency upon prescription drugs, mind you–but rather dependency upon those that are commonly purchased off the street, rather than in the pharmacy.

  2. Pingback: Nebraska: Recreational Drug User Entitled to Inpatient Care to Treat Worsening Drug Problem Following Robbery and Work-Related Shooting

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