Parks v. Hy-Vee, Inc.

307 Neb. 927

951 N.W.2d 504

Donna PARKS, appellee,

v.HY-VEE, INC., appellant.

No. S-20-195.

Supreme Court of Nebraska.

Filed December 4, 2020

Paul T. Barta, Lincoln, and Micah C. Hawker-Boehnke, of Baylor Evnen, L.L.P., for appellant.

Travis Allan Spier, Lincoln, and Nolan Niehus, Senior Certified Law Student, of Atwood, Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik, and Freudenberg, JJ.

Papik, J. Donna Parks incurred a work-related injury in 2008 while employed by Hy-Vee, Inc., and sought workers’ compensation benefits. The initial award granted compensation for past and future medical expenses for her low-back injury but found that she had not reached maximum medical improvement (MMI). It did not address aggravation of Parks’ mental health issues.

In 2017, following the filing of motions by both parties, the parties stipulated to the compensation court's resolution of several issues. After a trial, the compensation court resolved those issues and entered a further award. Relying on expert opinions, the compensation court granted Parks compensation for chronic pain and aggravation of her mental health issues, both caused by the work-related low-back injury. The compensation court later modified the further award upon Parks’ motion pursuant to Neb. Rev. Stat. § 48-180 (Cum. Supp. 2018).

Hy-Vee now appeals, alleging that the compensation court failed to properly apply the law-of-the-case doctrine and exceeded its power in modifying the further award. Finding no merit to Hy-Vee's arguments, we affirm.

BACKGROUND

Injury and Initial Award.

In 2008, Parks was working in the Hy-Vee floral department when she was partially pulled into a trash compactor while emptying a heavy bin. In 2010, she sought workers’ compensation benefits for injuries she claimed to have incurred.

At trial on the matter, the compensation court received evidence that Parks had sustained a work-related low-back injury. Further, Parks testified on direct examination that she was not claiming an aggravation of preexisting mental health issues as a result of the work accident. She further testified that her state of mind had been stable since she began working for Hy-Vee in 2004. Parks did not seek temporary disability benefits, because she was employed by Hy-Vee at the time of trial.

The compensation court determined that Parks suffered a compensable low-back injury during her employment with Hy-Vee. It did not address Parks’ mental health issues. The award concluded that Parks had not reached MMI regarding her low-back injury and made no finding as to permanent loss of earning power or entitlement to vocational rehabilitation services. It ordered Hy-Vee to pay past and future medical expenses reasonably necessary for evaluation and nonsurgical treatment of the low-back injury.

Thereafter, Parks received regular and varying treatment for her compensable low-back injury, but she continued to experience pain. In 2012, her treating physician, Dr. Daniel M. Wik, recommended implanting a spinal cord stimulator. In 2014, Wik and an orthopedic surgeon agreed that Parks had reached MMI, and she was assigned work restrictions. Shortly thereafter, a functional capacity evaluation by the agreed-upon vocational rehabilitation counselor concluded that Parks was permanently and totally disabled. Hy-Vee voluntarily paid permanent partial disability benefits from 2014 until 2018.

Subsequent Motions.

Meanwhile, in 2017, Parks filed a motion to enforce the award. She requested that Hy-Vee pay for or authorize (1) a psychological evaluation to determine her candidacy for a spinal cord stimulator, (2) a back brace and massage therapy, and (3) various medications. Parks also sought medical expenses incurred after April 28, 2011, permanent disability benefits, and vocational rehabilitation.

Hy-Vee subsequently filed a petition for modification of the award. It asserted, among other things, that after the initial award, Parks had alleged she suffered a compensable mental health injury that Hy-Vee disputed, and that she was not totally disabled. In response, Parks filed an answer admitting that she was alleging a mental health injury and requesting that the compensation court dismiss Hy-Vee's petition for modification for failure to state a claim because Hy-Vee sought judicial determinations on MMI and disability status, issues not previously ruled upon by the compensation court.

Evidence at Trial.

The parties presented evidence at a consolidated trial to determine the extent and nature of Parks’ compensable disability and associated expenses. Prior to the trial, the parties stipulated the issues to be resolved. Relevant here, those issues included (1) whether the work accident caused Parks to have chronic pain or a chronic pain syndrome, (2) whether the work accident aggravated her preexisting mental health issues, (3) whether medical and mileage expenses identified in exhibit 69 were reasonable and necessary for treatment of Parks’ work-related conditions, (4) the extent of Parks’ permanent disability resulting from the work-related injuries, and (5) "any additional benefits the [c]ourt deems warranted based on evidence at the time of hearing." The parties also stipulated that Parks had reached MMI on March 3, 2014, regarding her low-back injury and associated lower extremity symptoms.

Parks presented evidence that her chronic pain was caused by the work accident. Parks had received treatment from Wik monthly since 2010 for persistent low-back pain. In 2011, Wik attributed Parks’ low-back pain to the work injury. In 2018, Wik reported that it remained his opinion that all of Parks’ low-back diagnoses were caused by the work accident.

Parks also presented the report of Dr. Dennis P. McGowan, a spine surgeon who examined her in March 2019. He diagnosed Parks with "[s]prain to low back caused by 6/2/2008 work injury with continuous disabling low back pain."

Parks testified that she had experienced constant and varying degrees of low-back pain since the accident. The pain radiated down her legs and involved some numbness and tingling in her right leg and foot. Parks acknowledged significant struggles with her mental health in the past, particularly after her husband suffered an aneurysm in 1990. At that time, Parks was hospitalized for what she called a nervous breakdown. Parks testified that as a result, she obtained Social Security disability benefits. Parks testified that when she started working for Hy-Vee in 2004, she was off those disability benefits and her physical and mental health were good. She stated that she was happy to be working and that it was a good point in her life. Other than Parks’ testimony about a cut to her finger, there is no evidence that Parks received medical treatment from 2004 to 2008. Parks testified about her efforts to remain employed in some form after her work accident, within her physical restrictions.

Contrary to Parks, Hy-Vee posited that Parks’ chronic pain was caused by a somatic symptom disorder or psychological disorder unrelated to the work accident. It presented the February 2017 report of Dr. Terry Davis, a psychiatrist who conducted a psychiatric evaluation and mental status examination and reviewed a chronology of Parks’ medical records and the records produced by Wik. He opined that all of Parks’ current pain was the result of a preexisting somatic symptom disorder that was not caused or aggravated by the work accident. Davis described the disorder as a state in which psychological factors initiate, exacerbate, or maintain bodily symptoms. That is, Parks’ ongoing back pain complaints were most likely psychogenic and not due to any physical, medical, anatomical, or physiologic cause. He noted that Parks had a history of serious emotional and psychological problems that predated the 2008 work accident and included somatic symptoms as early as 1990. Davis explained that a somatic episode can be brought about unconsciously to manipulate or control relationships, express emotions, or cope with stress. Because of his opinion that Parks’ back pain was psychogenic and due to the subjective nature of her complaints, Davis concluded that Parks’ symptoms were unlikely to respond to any medical or physical treatment, including a spinal cord stimulator.

Dr. John R. Massey conducted a medical examination of Parks in September 2018 and reviewed Davis’ evaluation. He agreed with Davis’ opinion that Parks’ pain was caused by a somatic symptom disorder rather than the work accident.

The parties also presented evidence regarding the causal connection between Parks’ mental health issues and the work accident. Parks’ evidence showed that her mental health issues were exacerbated by the low-back injury she incurred at work in 2008. In her testimony, Parks acknowledged that she was diagnosed with depression, anxiety, and posttraumatic stress disorder in the 1990's, but, as noted above, she testified that her mental health had stabilized before she began working for Hy-Vee and that it continued to be stable through the initial trial. However, Parks testified that her mental health changed when Hy-Vee denied coverage for the spinal cord stimulator and she had "no hope for any other treatment."

In February 2017, Wik, who consistently attributed Parks’ low-back pain to the work accident, diagnosed Parks with "anxiety due to chronic low back pain." In January 2019, Parks began treatment with Dr. Dianna M. Clyne, a psychiatrist. Parks reported to Clyne that her low-back pain made her depression and anxiety worse. Clyne reviewed Parks’ medical documentation, including that of her previous psychiatric hospitalizations. She diagnosed Parks with depressive disorder and anxiety disorder, which she attributed to the work injury and low-back pain. According to Clyne, Parks was at MMI for her depression and anxiety, at least until her low-back condition improved. In March 2019, McGowan reported that...