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Martinez v. Millard Processing Services and Sentry Claims Service2/18/2003
Rev. Stat. § 48-141 (Reissue 1998) provides in significant part:
he amount of any agreement or award payable periodically may be modified as follows: (1) At any time by agreement of the parties with the approval of the Nebraska Workers' Compensation Court; or (2) if the parties cannot agree, then at any time after six months from the date of the agreement or award, an application may be made by either party on the ground of increase or decrease of incapacity due solely to the injury . . . .
The case law has clarified the statutory rule. "Under § 48-141, the applicant for modification must prove by a preponderance of the evidence that the increase in his [or her] incapacity was due solely to the injury resulting from the original accident." Gomez v. Kenney Deans, Inc., 232 Neb. 646, 647-48, 441 N.W.2d 632, 634 (1989).
In proving an increase in incapacity, the applicant must prove by a preponderance of the evidence that "there now exists a material and substantial change for the worse in the applicant's condition a change in circumstances that justifies a modification, distinct and different from that for which an adjudication has been previously made. Id.
At the hearing on her application for modification, the plaintiff testified that while she was receiving treatment at the UNMC pain clinic during the period from January 18 to August 31, 1999, she felt " little bit better." After the therapy finished, she felt " etter, but felt little relief." She testified that within 2 or 3 months, her condition was "worse" and that she felt "more the pain." She said that while testifying at the hearing, the pain in her back and legs was " trong." She went on to briefly describe the pain she has and what she currently could not do. She did not testify to what she could or could not do at the time of the original award. Her counsel asked, "Since the time of your injuries at Millard Processing Services, do you believe that your condition has gotten better or worse?" The plaintiff answered, "Worse." She was asked, "Is it substantially worse than it was?" She replied, "Yes. Plenty. Plenty."
We should note that the time from which we measure the alleged deterioration in the plaintiff's condition is the time immediately before the original trial, not the time the plaintiff sustained her injuries, until the modification proceeding.
The defense offered some previous testimony that the plaintiff had given at a December 4, 1998, trial in which she had testified that she did not know of any work she could do at that time and that the work she could do in her home was "'just very light stuff.'"
The plaintiff's testimony, if accepted by the trier of fact, might justify a finding of a material and substantial change for the worse in her condition. We do not think we need cite any authority to substantiate our assertion that the trial court is not required to accept the plaintiff's testimony.
The medical evidence that the plaintiff offered to show her condition had worsened was the opinions of Bencomo and Zawaideh. Zawaideh opined that the plaintiff had "progressed worse" and that he did not think she was able to be employed in any gainful, substantial employment. Bencomo stated that the plaintiff's depressive symptoms had worsened during February and March 2001. However, we find no medical evidence which compares her pain level, her depression level, or her mental illness level in 2001 with that at the time of the first hearing. In Bencomo's opinion, the plaintiff's depressive symptoms rendered her permanently disabled; but that is clearly disputed by Gutnik's opinion, which the trial court chose to believe. The Workers' Compensation Cou
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