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Gann v. Vickers3/15/2005
he right of either party to petition the court for purposes of addressing a claimant's status post-Award." Section 48-141 provides:
All amounts paid by an employer or by an insurance company carrying such risk, as the case may be, and received by the employee or his or her dependents by lump-sum payments, approved by order pursuant to section 48-139, shall be final, but the 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 or that the condition of a dependent has changed as to age or marriage or by reason of the death of the dependent. In such case, the same procedure shall be followed as in sections 48-173 to 48-185 in case of disputed claim for compensation.
The review panel concluded that pursuant to § 48-141, regardless of the qualifying language used by the trial court in making its award, Vickers' right to petition and challenge Gann's ongoing status was protected or otherwise preserved.
We conclude that the record properly supports the trial court's finding that Gann was permanently and totally disabled, and we disagree with Vickers' assertions that the language employed by the trial court somehow suggests otherwise. The record shows that Gann had reached maximum medical improvement, and, as such, Gann is no longer entitled to temporary disability benefits. That said, § 48-141 clearly contemplates that a claimant's incapacity may increase or decrease due to his or her injury following the entry of an award for benefits. We do not read the language employed by the trial court as setting up the contradiction urged by Vickers, but, rather, find that the language employed by the trial court merely contemplates that Gann's incapacity may increase or decrease at some unknown point in the future. Vickers' assignment of error is without merit.
Reliance on Bowman's Opinion as to Gann's Psychological Injury.
Vickers asserts that the trial court erred in relying on Bowman for conclusions relating to Gann's psychological injury, because Bowman, as an orthopedic surgeon, was unable to provide competent medical testimony regarding such injury. Psychological injuries are compensable, under certain circumstances, in Nebraska workers' compensation cases, but the burden to prove that a psychological disability is the result of a work-related accident is on the claimant. Cummings v. Omaha Public Schools, 6 Neb. App. 478, 574 N.W.2d 533 (1998). See, Kraft v. Paul Reed Constr. & Supply, 239 Neb. 257, 475 N.W.2d 513 (1991); Sorensen v. City of Omaha, 230 Neb. 286, 430 N.W.2d 696 (1988). If the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).
Vickers cites Ross v. Shalala, 865 F. Supp. 286 (W.D. Pa. 1994), for the proposition that physicians, with the exception of those specializing in psychiatry, are totally unqualified to diagnose psychological disorders. Ross involved an appeal from a denial of an application for supplemental security income benefits. On appeal, the district court considered whether the administrative law judge below had properly given more weight to the opinion of a medical doctor than to that of a practitioner such as a psychologist regarding the claimant's p
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