Carr v. Ganz , 916 N.W.2d 437 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/12/2018 09:07 AM CDT
- 14 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
R ichard Carr, appellant, v.
Gordon Ganz,
doing business as G & H Farms, appellee.
___ N.W.2d ___
Filed June 12, 2018. No. A-17-161.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the Workers’ Compensation Court may be modified, reversed,
or set aside only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evidence in the
record to warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support the order
or award.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate
court to acquire jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken; conversely, an
appellate court is without jurisdiction to entertain appeals from non-
final orders.
5. Jurisdiction: Appeal and Error. When an appellate court is without
jurisdiction to act, the appeal must be dismissed.
6. Final Orders: Appeal and Error. Generally, when multiple issues
are presented to a trial court for simultaneous disposition in the same
proceeding and the court decides some of the issues, while expressly
reserving some issue or issues for later determination, the court’s deter-
mination of less than all the issues is an interlocutory order and is not a
final order for the purpose of an appeal.
7. Statutes: Courts. When interpreting a statute, a court will first consider
the plain language.
- 15 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
8. Statutes: Legislature: Intent. In discerning the meaning of a statute,
a court must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute con-
sidered in its plain, ordinary, and popular sense, as it is the court’s duty
to discover, if possible, the Legislature’s intent from the language of the
statute itself.
9. Workers’ Compensation. Under the Nebraska Workers’ Compensation
Act, it has long been the policy to construe the statute liberally so that
its beneficent purposes may not be thwarted by technical refinements
of interpretation.
10. ____. The obvious purpose of Neb. Rev. Stat. § 48-120 (Cum. Supp.
2016) is to authorize the compensation court to order an employer to pay
the costs of the medicines and medical treatment reasonably necessary
to relieve the worker from the effects of the injury.
11. ____. An order modifying an award to exclude a specific surgery does
not foreclose an employee from establishing at a later date that the sur-
gery is reasonably necessary to treat his or her compensable injury and
is therefore encompassed under the terms of the award.
12. ____. The general rule under Neb. Rev. Stat. § 48-120 (Cum. Supp.
2016) is that, should a court determine a medical treatment for a condi-
tion unrelated to a work-related injury is medically reasonable and nec-
essary to treat the underlying work-related injury, the medical treatment
is required by the nature of the injury and is compensable.
Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Reversed and remanded for further
proceedings.
Ryan C. Holsten and Brynne Holsten Puhl, of Atwood,
Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., for
appellant.
John W. Iliff and Adam J. Wachal, of Gross & Welch, P.C.,
L.L.O., for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Inbody, Judge.
INTRODUCTION
Richard Carr appeals the Nebraska Workers’ Compensation
Court’s denial of his motion to compel Gordon Ganz, doing
- 16 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
business as G & H Farms, to pay for Carr’s coronary artery
bypass procedure. Specifically, Carr appeals the compensa-
tion court’s orders on December 23 and 30, 2016, and January
19, 2017. Because we conclude the December 30, 2016, order
modified the December 23 order to reserve disposition of some
of the issues, the December 23 order was not final and appeal-
able until the January 19, 2017, order. Thus, we find Carr’s
February 7 notice of appeal was timely filed and we have juris-
diction to consider the appeal. For the reasons set forth below,
we reverse the compensation court’s order pertaining to the
compensability of Carr’s coronary artery bypass procedure and
remand the cause for further proceedings.
FACTUAL BACKGROUND
In January 2012, while employed by Ganz, Carr was “bucked
off” a horse and injured in the course of his employment.
Specifically, Carr received the following injuries due to the
accident: symphysis pubis and sacral fractures, hernia, urinary
incontinence, and erectile dysfunction. Following a petition
filed with the Nebraska Workers’ Compensation Court, the
parties entered into a stipulation in April 2014, and the court
entered an award pursuant to this stipulation wherein Carr was
awarded temporary total disability benefits to be paid by Ganz
until Carr reached maximum medical improvement for his
injuries. The court stated “[Ganz] is to pay for [Carr’s] future
medical care all as required by [Neb. Rev. Stat.] § 48-120
[(Cum. Supp. 2016)].”
In February 2015, Carr filed a petition for further award in
which he alleged that his doctors felt a “penile prosthesis [was]
required” before he would reach maximum medical improve-
ment and that such surgery could not be performed without
him first undergoing a heart catherization that Ganz refused
to authorize. After the petition was filed, Ganz agreed to pay
for the heart catherization and Carr subsequently submitted a
notice of dismissal of the petition without prejudice. A dis-
missal was ordered by the court in July 2015.
- 17 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
Due to the results of the heart catherization, Carr underwent
a coronary artery bypass procedure to address issues prior to
his penile prosthesis. In May 2016, Carr filed a motion to com-
pel Ganz to pay for the coronary artery bypass procedure. Carr
supported his motion by stating that “[p]rior to undergoing
the penile prosthesis surgery, [Carr] was required to undergo
cardiac treatment [for which Ganz] refused to pay,” and Carr
asked that “a hearing be held before the Nebraska Workers’
Compensation Court and an Order entered compelling pay-
ment of outstanding medical bills.” In a hearing on the motion,
Carr offered various exhibits pertaining to his health expenses,
including expenses for the coronary artery bypass procedure,
other expenses related to treatment for his injuries, mileage,
and attorney fees. Ganz objected to these exhibits and specifi-
cally as to any information they contained which documented
expenses unrelated to the coronary artery bypass procedure,
arguing that they went beyond the scope of Carr’s motion. In
making this objection, Ganz’ counsel stated:
We’re here for a motion to compel on one issue alone,
and I believe the stipulated award indicates concisely
what the injuries consisted of. And [these offered exhibits
and their outlining of other medical expenses, mileage,
and attorney fees] really [have] no bearing on this particu-
lar motion and also [are] duplicative and not necessary.
The court overruled Ganz’ objection.
On December 23, 2016, the compensation court denied
Carr’s request to compel Ganz to pay medical expenses for the
coronary artery bypass procedure. In reaching this determina-
tion, the court stated:
Section 48-120(l)(a) requires an employer to pay for
medical services which are required by the nature of the
injury and which will relieve pain or promote and hasten
the employee’s restoration to health and employment.
There is no question that the [coronary artery bypass
procedure] would relieve pain or promote and hasten
[Carr’s] restoration to health and employment because
- 18 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
[the procedure] is necessary to enable [Carr] to undergo
the [penile prosthesis surgery] which will enable [Carr]
to reach maximum medical improvement, relieve pain,
and allow [Carr] to return to employment. The real issue
is whether or not the coronary artery bypass [procedure]
was required by the nature of the injury.
The court went on to provide a test for determining when
a medical procedure is required by the nature of the injury,
and explained:
The test is whether or not there is a reasonable relation-
ship between the accident at work and the medical condi-
tion found after the accident. In this case, the coronary
blockage is not part of the nature of the injury and has
no reasonable relationship to the injuries suffered in
the accident.
This order further contained reference to a lump-sum settle-
ment and mentioned such a settlement could impact the impo-
sition of benefits, but the order was otherwise silent as to the
other medical expenses, mileage, and attorney fees discussed
at the hearing.
On December 30, 2016, the court entered an “Order Nunc
Pro Tunc” wherein the court stated that it had been “notified”
by counsel of certain minor errors in the December 23 order,
including that no such lump-sum settlement occurred and that
the court had neglected to address issues of medical expenses,
mileage, and attorney fees. Specifically, the court stated:
The Court finds counsel are correct, and, as a result,
the Order entered December 23, 2016 is not a final order.
A further hearing must be held to correct the order and
address medical expenses, mileage, attorney fees, and to
correct the portion of the Order on lump sum settlement
and erectile dysfunction surgery.
The December 30 order set a further hearing on those issues
for January 2017, and the court again denied Carr’s request to
compel Ganz to pay for the medical expenses for the coronary
artery bypass procedure.
- 19 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
On January 19, 2017, the court entered an order requiring
Ganz to pay $324 associated with other medical expenses,
$500 in attorney fees, and calculated mileage amounts. The
court added that “[t]he case is now final.” Carr appealed on
February 7, which is timely from the January 19 order but not
from the December 23, 2016, order.
ASSIGNMENT OF ERROR
Carr assigns, restated, that the Nebraska Workers’
Compensation Court erred as a matter of law in determining
his coronary artery bypass procedure was not compensable
under Neb. Rev. Stat. § 48-120 (Cum. Supp. 2016).
STANDARD OF REVIEW
[1,2] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order,
or award was procured by fraud; (3) there is not sufficient
competent evidence in the record to warrant the making of
the order, judgment, or award; or (4) the findings of fact by
the compensation court do not support the order or award.
Damme v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422
(2014). We independently review questions of law decided by
a lower court. Guinn v. Murray, 286 Neb. 584, 837 N.W.2d
805 (2013).
ANALYSIS
Jurisdiction
Carr appeals the compensation court’s denial of his request
that Ganz be ordered to pay for the coronary artery bypass
procedure. Although an initial order denied the request on
December 23, 2016, Carr argues it was not a final, appealable
order because the December 30 order reserved issues for later
determination which were finally determined in the January
19, 2017, order. Because the December 23, 2016, order was
not a final, appealable order until the January 19, 2017, order
- 20 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
was entered, Carr asserts his filing of a notice of appeal on
February 7 was within the 30-day requirement of Neb. Rev.
Stat. § 48-182 (Cum. Supp. 2016).
[3-5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Larsen v. D B Feedyards,
264 Neb. 483, 648 N.W.2d 306 (2002); Waite v. City of Omaha,
263 Neb. 589, 641 N.W.2d 351 (2002). For an appellate court
to acquire jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken; con-
versely, an appellate court is without jurisdiction to entertain
appeals from nonfinal orders. Larsen v. D B Feedyards, supra.
When an appellate court is without jurisdiction to act, the
appeal must be dismissed. Id.
Once a final order is entered, § 48-182 and Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2016) provide the procedure for
a party to appeal that order. Within §§ 48-182 and 48-185 is
the requirement that once a final order is entered, the parties
have 30 days to file a notice of appeal with the compensation
court. Any appeal in which notice is not filed within the 30-day
period must be dismissed for lack of jurisdiction. See id.
In the instant case, Carr filed a motion seeking to compel
Ganz for the “payment of outstanding medical bills,” includ-
ing for the coronary artery bypass procedure. In the hearing
on the motion, Carr offered various exhibits pertaining to
his health expenses, including for the coronary artery bypass
procedure, other expenses related to treatment for his injuries,
mileage, and attorney fees. Ganz objected to these exhibits as
to any information they contained which documented expenses
unrelated to the coronary artery bypass procedure, arguing that
they went beyond the scope of Carr’s motion. Specifically,
Ganz stated:
We’re here for a motion to compel on one issue alone,
and I believe the stipulated award indicates concisely
what the injuries consisted of. And [these offered
exhibits and their outlining of other medical expenses,
- 21 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
mileage, and attorney fees] really [have] no bearing on
this particular motion and also [are] duplicative and not
necessary.
The court overruled Ganz’ objection, and on December 23,
2016, entered the first order denying Carr’s request to compel
Ganz to pay for the medical expenses for the coronary artery
bypass procedure. This order contained a reference to a lump-
sum settlement and mentioned such a settlement could impact
the imposition of benefits. The order was otherwise silent as
to the other medical expenses, mileage, and attorney fees dis-
cussed at the hearing.
Seven days later, on December 30, 2016, the court entered
an order captioned “Order Nunc Pro Tunc.” In this order, the
court made various corrections to the wording of the December
23 order, including eliminating the reference to the lump-sum
settlement. The December 30 order also stated:
The Court finds counsel are correct, and, as a result,
the Order entered December 23, 2016 is not a final order.
A further hearing must be held to correct the order and
address medical expenses, mileage, attorney fees, and to
correct the portion of the Order on lump sum settlement
and erectile dysfunction surgery.
The court again denied Carr’s request to compel Ganz to pay
for the medical expenses for the coronary artery bypass pro-
cedure. Following an additional hearing, the court made fur-
ther findings and ordered that Ganz pay sums associated with
other medical expenses, attorney fees, and mileage.
Neb. Rev. Stat. § 48-180 (Cum. Supp. 2016) provides the
compensation court the ability to modify an order within 14
days of its entry. Specifically, § 48-180 states:
The Nebraska Workers’ Compensation Court may, on
its own motion or on the motion of any party, modify
or change its findings, order, award, or judgment at any
time before appeal and within fourteen days after the
date of such findings, order, award, or judgment. The
time for appeal shall not be lengthened because of the
- 22 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
modification or change unless the correction substan-
tially changes the result of the award.
In 2011, § 48-180 was revised to remove the qualifying lan-
guage that a court could modify a previously entered order
“for the purpose of correcting any ambiguity, clerical error,
or patent or obvious error.” See § 48-180 (Reissue 2010 &
Supp. 2011). See, also, Walsh v. City of Omaha, 11 Neb. Ct. App.
747, 755, 660 N.W.2d 187, 194 (2003) (interpreting previ-
ous language as “the statutory embodiment of nunc pro tunc
principles”). The removal of the above-quoted language elimi-
nated a limitation to a modification under § 48-180 to permit
a compensation court to modify only through nunc pro tunc
orders and expanded a court’s ability to modify a previously
entered judgment. Therefore, even though the December 30,
2016, order was mislabeled and went beyond an order nunc
pro tunc to modify the holding of the December 23 order, such
modification was within the court’s authority under § 48-180
(Cum. Supp. 2016) and occurred within 14 days after the origi-
nal order’s entry.
Having determined the compensation court’s December 30,
2016, order was within the court’s authority under § 48-180,
the next issue for our consideration is whether the court
reserved a determination of the issues of the other medical
expenses, attorney fees, and mileage; and, if so, whether such
reservation made the court’s December 23 order interlocutory
and not a final, appealable order.
[6] Generally, when multiple issues are presented to a trial
court for simultaneous disposition in the same proceeding and
the court decides some of the issues, while expressly reserv-
ing some issue or issues for later determination, the court’s
determination of less than all the issues is an interlocutory
order and is not a final order for the purpose of an appeal.
Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667
N.W.2d 167 (2003), disapproved on other grounds, Kimminau
v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
See, also, Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d
- 23 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
377 (2013) (holding that compensation court’s finding of com-
pensable injury or its rejection of affirmative defense without
determination of benefits is not order that affects employer’s
substantial right in special proceeding); Hamm v. Champion
Manuf. Homes, 11 Neb. Ct. App. 183, 645 N.W.2d 571 (2002)
(determining that order was interlocutory which awarded tem-
porary total disability and permanent partial disability benefits
while reserving ruling on medical expenses and mileage and
set later hearing date to resolve those issues).
Here, the compensation court did not expressly reserve
some of the issues for later determination in the December 23,
2016, order. However, as previously discussed, the court had
the authority to modify its December 23 order and did so in
its December 30 order. In the December 30 order, the court
reserved ruling on the unresolved issues of medical expenses,
attorney fees, and mileage until after it held an additional
hearing. As entered and then modified, the court’s order
did not determine all of the issues and was an interlocutory
order. As such, the court’s ruling was not final and appeal-
able until the reserved issues were decided in the January
19, 2017, order. By doing so, the court modified the time in
which Carr would be allowed to appeal, because modifying
the December 23, 2016, order to reserve a determination of
medical expenses, attorney fees, and mileage substantially
changed the result of the award. See § 48-180. See, also,
Yost v. Davita, Inc., 23 Neb. Ct. App. 482, 873 N.W.2d 435
(2015) (determining that, where award was entered February
13, 2015, motion to reopen evidence was filed February 24,
and hearing was held sometime in March, because motion
was filed 11 days after entry of further award and prior to
appellant’s appeal, compensation court had authority under
§ 48-180 to modify its findings), modified on denial of
rehearing 23 Neb. Ct. App. 732, 877 N.W.2d 271 (2016). When
the January 19, 2017, order determined these remaining
issues, the 30-day period in which either party could appeal
began. Because Carr filed a notice of appeal on February 7,
- 24 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
Carr’s appeal was timely filed and this court has jurisdiction
to consider his appeal.
Compensability of Carr’s Coronary
A rtery Bypass Procedure
Carr assigns that the compensation court erred as a matter of
law in determining the coronary artery bypass procedure was
not compensable under § 48-120. Specifically, Carr claims the
coronary artery bypass procedure was medically reasonable
and necessary before he could treat his work-related injuries.
Carr argues a medical procedure that is a medical necessity
is compensable if it is designed to directly relieve the effects
of the claimant’s work-related injury or make him or her a
candidate for a compensable treatment. As such, Carr asserts
the compensation court erred in failing to utilize this medi-
cal necessity standard and failing to find the coronary artery
bypass procedure was compensable, because it was necessary
to perform the compensable penile prosthesis surgery.
Carr sustained injuries arising out of his employment with
Ganz, including the following injuries: symphysis pubis and
sacral fractures, hernia, urinary incontinence, and erectile dys-
function. The compensation court entered an award on stipu-
lation of Carr and Ganz to compensate Carr for these work-
related injuries, stating that “[Ganz] is to pay for [Carr’s]
future medical care all as required by § 48-120.” Presently,
Carr does not contend that the work-related injuries caused the
cardiac condition, but instead argues that, because the proce-
dure was necessary to address his work-related injuries, such
procedure was covered under § 48-120.
In its December 23, 2016, order, the compensation court
determined that the “real issue is whether or not the coronary
artery bypass surgery . . . was required by the nature of the
injury,” because Carr’s heart condition was not a result of the
work-related injuries but was medically necessary to treat a
compensable injury. In analyzing this issue, the court stated
that “[t]here are no Nebraska cases on point.” The court cited
- 25 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886
(2010), and Manchester v. Drivers Mgmt., 278 Neb. 776, 775
N.W.2d 179 (2009), as Nebraska cases in which courts have
found that injuries which arise after a work-related accident,
but are causally linked to the injuries occurring at work, are
compensable. However, the court noted 8 Arthur Larson & Lex
K. Larson, Larson’s Workers’ Compensation Law § 94.03[5]
(2017); a Wyoming Supreme Court case, State ex rel. Workers’
Comp. v. Girardot, 807 P.2d 926 (Wyo. 1991); and § 48-120’s
limitation on the payment of medical expenses to those required
by “the nature of the injury,” and the court determined that
“[t]he test is whether or not there is a reasonable relationship
between the accident at work and the medical condition found
after the accident.” Finding “the coronary blockage is not part
of the nature of the injury and has no reasonable relationship
to the injuries suffered in the accident,” the court denied Carr’s
request to compel Ganz to pay for the medical expenses for the
coronary artery bypass procedure.
[7-9] Section 48-120(1) provides that an “employer is liable
for all reasonable . . . services . . . and medicines as and when
needed, which are required by the nature of the injury and
which will relieve pain or promote and hasten the employee’s
restoration to health and employment.” When interpreting a
statute, a court will first consider the plain language. See
Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d
703 (2013). In discerning the meaning of a statute, a court
must determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the stat-
ute considered in its plain, ordinary, and popular sense, as it is
the court’s duty to discover, if possible, the Legislature’s intent
from the language of the statute itself. Id. Under the Nebraska
Workers’ Compensation Act, it has long been the policy to
construe the statute liberally so that its beneficent purposes
may not be thwarted by technical refinements of interpretation.
See Marlow v. Maple Manor Apartments, 193 Neb. 654, 228
N.W.2d 303 (1975).
- 26 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
[10] The obvious purpose of § 48-120 is to authorize the
compensation court to order an employer to pay the costs of
the medicines and medical treatment reasonably necessary to
relieve the worker from the effects of the injury. Sellers v.
Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012) (further
explaining that provision exists because it is obvious fact of
industrial life that injured worker can reach maximum medi-
cal improvement from injury and yet require periodic medi-
cal care to prevent further deterioration in his or her physical
condition). The language of § 48-120 does not state that a
medical procedure is compensable only if it is directly treat-
ing an injury caused by the work-related accident. Instead,
§ 48-120’s language is more inclusive and describes that a
compensable medical procedure must be “required by the
nature of the injury” and “will relieve pain or promote and
hasten the employee’s restoration to health.” Ganz argues the
phrase “required by the nature of the injury” limits compensa-
tion to only those treatments which are reasonably related by
causal connection to the injury, while Carr argues “required
by the nature of the injury” encompasses all medical treatment
that would lead to a relief in pain or promote the employee’s
restoration to health.
In Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757,
707 N.W.2d 232 (2005), the Nebraska Supreme Court consid-
ered this question. There, an employee sought benefits for a
gastric bypass surgery that was not causally connected to the
work-related injuries, but which he contended was medically
necessary because his weight precluded him from undergo-
ing the surgery necessary to treat his work-related injuries.
The compensation court upheld the employer’s objection to
liability for this treatment, noting that although future medical
benefits had been awarded, the record “‘at this point’” did not
establish that the gastric bypass surgery was necessary to treat
the work-related injuries. Id. at 766, 707 N.W.2d at 240. The
Nebraska Supreme Court concluded that the denial was not
clearly erroneous and stated:
- 27 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
Given the sparseness of the record concerning whether
gastric bypass surgery was medically reasonable and nec-
essary to treat [the employee’s] compensable injuries,
and whether gastric bypass surgery would even suffice
to make [him] a candidate for further surgery to treat his
compensable injuries, we cannot say the single judge was
clearly wrong in determining that there was not sufficient
evidence at this time to establish that gastric bypass sur-
gery was necessary to the treatment of [the employee’s]
work-related injuries.
Id. at 767, 707 N.W.2d at 240.
[11] In the later case of Sellers v. Reefer Systems, 283 Neb.
760, 765, 811 N.W.2d 293, 296 (2012), the Nebraska Supreme
Court analyzed this holding in Rodriguez and explained that
implicit in Rodriguez is that “if necessity had been established,
the gastric bypass surgery would have been compensable not-
withstanding the fact that it was not specifically included in
the award of future medical expenses.” In Sellers, the court
determined that an order modifying an award to exclude a
specific surgery “‘at present’” did not foreclose the employee
from establishing at a later date that the surgery is “reason-
ably necessary to treat his compensable injury and is therefore
encompassed under the terms of the award.” 283 Neb. at 766,
811 N.W.2d at 297.
[12] We find the holdings in Rodriguez and Sellers to inter-
pret § 48-120 as providing the general rule that, should a court
determine a medical treatment for a condition unrelated to a
work-related injury is medically reasonable and necessary to
treat the underlying work-related injury, the medical treatment
is “required by the nature of the injury” and is compensable.
See, also, Zitterkopf v. Aulick Indus., 16 Neb. Ct. App. 829, 753
N.W.2d 370 (2008) (finding that use of medicine was medi-
cally necessary and compensable even though it was used to
treat employee’s unrelated sleep apnea, because it was also
used to treat side effects of pain medication necessitated by
compensable injury).
- 28 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
Here, rather than using the medically reasonable and nec-
essary test provided for in Rodriguez and Sellers, the com-
pensation court used a “reasonable relationship” test that
essentially required the non-work-related medical condition
to have resulted from the work-related injury in order for
treatment of that condition to be compensable. We acknowl-
edge that such a test incorporates the general rule that there
be a relationship between the medical care sought and the
original injury and its treatment. Zitterkopf v. Aulick Indus.,
supra (explaining that § 48-120 contemplates causal connec-
tion between compensable injury and future medical care).
However, as described above, Rodriguez and Sellers provide
an exception when treatment of a non-work-related condi-
tion is medically reasonable and necessary in order to treat
the compensable injury. See, also, 8 Arthur Larson & Lex K.
Larson, Larson’s Workers’ Compensation Law § 94.03[5] at
94-63 (2017) (explaining that although “the employer cannot
be charged with the cost of repairing various non-work-related
conditions that are discovered in the course of treatment,”
“[a]n exception may be recognized . . . when the nonindustrial
condition must be dealt with in order to achieve the optimum
treatment of the compensable injury”). Thus, the compensa-
tion court erred by not applying the medically reasonable
and necessary exception and deciding the compensability of
Carr’s coronary artery bypass procedure only on the question
of whether Carr’s coronary condition was caused by his work-
related injuries.
The compensation court did not consider the evidence
under the framework of Rodriguez v. Hirschbach Motor Lines,
270 Neb. 757, 707 N.W.2d 232 (2005), and Sellers v. Reefer
Systems, 283 Neb. 760, 811 N.W.2d 293 (2012), but found
that “the [coronary artery bypass procedure was] necessary
to enable [Carr] to undergo the [penile prosthesis] surgery,”
since Ganz did not present any evidence to the contrary.
Therefore, we reverse the compensation court’s order on the
issue of the compensability of Carr’s coronary artery bypass
- 29 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
CARR v. GANZ
Cite as 26 Neb. Ct. App. 14
procedure and remand the cause to the compensation court for
further proceedings consistent with this opinion.
CONCLUSION
Since the compensation court did not consider the evidence
in the present matter under the framework of Rodriguez and
Sellers, as discussed herein, we reverse, and remand for further
proceedings consistent with this opinion.
R eversed and remanded for
further proceedings.