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Flesner v. Lincoln Poultry8/23/2005
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"If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. . . . This group . . . includes the kind of case in which a worker has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion."
Quoting 4 Arthur Larson, The Law of Workmen's Compensation ยงยง 95.22 and 95.23 (1987).
Appellants rely on Miller v. Meister & Segrist, supra. In that case, the claimant sustained a back injury in 1985. In 1992 and 1996, he injured his back again in work-related accidents. The claimant's treating physician stated that the claimant suffered from degenerative changes which pre-existed the 1985 injury and which would have likely progressed over time, that the 1996 incident "'may have been the final event that pushed him over the edge,'" and that the 1996 injury was "a new injury superimposed on an existing injury." Id. at 810, 587 N.W.2d at 404. The trial court specifically found that the claimant's 1996 injuries were an aggravation of his previous condition, rather than a recurrence. The review panel concluded that there was sufficient evidence to support this factual finding, and citing the authority quoted above, the Nebraska Supreme Court affirmed. Appellants apparently attempt to liken the Miller case to the instant case.
In the case at bar, Diamant admitted that some of the incidents after April 2000 may have been "triggering events" for Flesner's symptoms and restrictions, but Diamant explained that such an event can trigger symptoms or flareups but may not necessarily worsen the underlying condition. He noted that subsequent to April 2000, all new incidents caused the same symptoms to recur as had occurred in April 2000, and unlike the treating physician in Miller v. Meister & Segrist, 255 Neb. 805, 587 N.W.2d 399 (1998), Diamant testified that none of these new incidents constituted a "new injury ." Although Diamant agreed to the characterization of the October 2003 incident as "the straw that broke the camel's back," he attributed Flesner's restrictions to the April 2000 injury. A good faith conflict due to self-contradiction of an expert's opinions presents a question of fact to be resolved by the trier of fact in a workers' compensation case. Nice v. IBP, inc., 226 Neb. 538, 412 N.W.2d 477 (1987). As the trier of fact, the Nebraska Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony. Armstrong v. Watkins Concrete Block, 12 Neb. App. 729, 685 N.W.2d 495 (2004). In light of this evidence, we cannot say that the trial court was clearly wrong in concluding that Flesner suffered only recurrences of his April 2000 injury, rather than aggravations. Thus, Cincinnati, the insurer at risk at the time of the April 2000 injury, bears liability for all of Flesner's compensable injuries.
Appellants urge that even if we conclude that Flesner's injuries after April 10, 2000, were recurrences, rather than aggravations, of the injury sustained on that date, Cincinnati should not be liable for medical expenses incurred after Flesner reached MMI on January 17, 2001. Appellants point to Diamant's admissions that the medical costs incurred in June and October 2001 were a result of work-related incidents during May and October of that year. However, Diamant clearly characterized those incidents as flareups of Flesner's April 2000 injury. Moreover, it is
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