Tchikobava v. Albatross Express ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2016 09:05 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
TCHIKOBAVA v. ALBATROSS EXPRESS
Cite as 293 Neb. 223
A ndrei Tchikobava, appellant, v.
A lbatross Express, LLC, appellee.
___ N.W.2d ___
Filed April 1, 2016. No. S-15-411.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2014), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when
(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 compensa-
tion court do not support the order or award.
2. ____: ____. Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless they are
contrary to law or depend on findings of fact which are clearly wrong in
light of the evidence.
3. Workers’ Compensation: Evidence: Appeal and Error. Admission of
evidence is within the discretion of the Workers’ Compensation Court,
whose determination in this regard will not be reversed upon appeal
absent an abuse of discretion.
4. Workers’ Compensation. Whether a plaintiff in a Nebraska workers’
compensation case is totally disabled is a question of fact.
5. Workers’ Compensation: Evidence: Appeal and Error. In testing the
sufficiency of the evidence to support the findings of fact in a workers’
compensation case, every controverted fact must be resolved in favor
of the successful party and the successful party will have the benefit of
every inference that is reasonably deducible from the evidence.
6. Workers’ Compensation: Rules of Evidence: Due Process. As a
general rule, the Nebraska Workers’ Compensation Court is not bound
by the usual common-law or statutory rules of evidence, but its dis-
cretion to admit evidence is subject to the limits on constitutional
due process.
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7. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
8. ____: ____: ____. The exclusion of evidence is ordinarily not prejudi-
cial where substantially similar evidence is admitted without objection.
9. ____: ____: ____. Where evidence is cumulative to other evidence
received by the court, its exclusion will not be considered prejudi-
cial error.
10. Workers’ Compensation: Stipulations: Evidence. Before an order for
future medical benefits may be entered, there should be a stipulation
of the parties or evidence in the record to support a determination that
future medical treatment will be reasonably necessary to relieve the
injured worker from the effects of the work-related injury or occupa-
tional disease.
11. Workers’ Compensation: Evidence. An award of future medical
expenses requires explicit evidence that future medical treatment is rea-
sonably necessary to relieve the injured worker from the effects of the
work-related injury.
12. Workers’ Compensation: Words and Phrases. Temporary disability
is the period during which the employee is submitting to treatment, is
convalescing, is suffering from the injury, and is unable to work because
of the accident.
13. Workers’ Compensation. Total disability exists when an injured
employee is unable to earn wages in either the same or a similar kind
of work he or she was trained or accustomed to perform or in any other
kind of work which a person of the employee’s mentality and attain-
ments could perform.
14. ____. As the trier of fact, the Workers’ Compensation Court is the sole
judge of the credibility of witnesses and the weight to be given their
testimony.
15. Workers’ Compensation: Expert Witnesses. 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.
16. ____: ____. Although an expert witness may be necessary to establish
the cause of a claimed injury, the Workers’ Compensation Court is not
limited to expert testimony to determine the degree of disability but
instead may rely on the testimony of the claimant.
17. ____: ____. Although medical restrictions or impairment ratings are
relevant to a claimant’s disability, the trial judge is not limited to expert
testimony to determine the degree of disability but instead may rely on
the testimony of the claimant.
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293 Nebraska R eports
TCHIKOBAVA v. ALBATROSS EXPRESS
Cite as 293 Neb. 223
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed in part, and in part reversed and
remanded with directions.
James C. Bocott, of Law Office of James C. Bocott, P.C.,
L.L.O., for appellant.
Patrick B. Donahue and Dennis R. Riekenberg, of Cassem,
Tierney, Adams, Gotch & Douglas, for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Miller-Lerman, J.
NATURE OF CASE
On November 12, 2013, Andrei Tchikobava filed a peti-
tion in the Nebraska Workers’ Compensation Court seeking
temporary and permanent disability benefits for injuries he
sustained in an accident that occurred on August 9, 2010, that
arose out of and in the course and scope of his employment
as a truckdriver with Albatross Express, LLC. A hearing was
held in February 2015, and on April 1, 2015, the compensa-
tion court awarded Tchikobava (1) temporary total disability
benefits for the period from August 10, 2010, to and includ-
ing December 8, 2010, and (2) permanent total disability
benefits starting May 2, 2014, and continuing for so long as
Tchikobava remains permanently and totally disabled. The
compensation court did not award temporary total disability
benefits for the period of December 9, 2010, through May 1,
2014, and it found that Tchikobava was not entitled to future
medical care expenses or penalties, attorney fees, or interest.
Tchikobava appeals.
We determine that there was no reversible error in the
compensation court’s evidentiary ruling excluding the deposi-
tion of Dr. Leon Reyfman and that the compensation court
did not err when it did not award future medical expenses.
These rulings are affirmed. However, we reverse the denial
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Cite as 293 Neb. 223
of temporary total disability benefits for the period from
December 9, 2010, through May 1, 2014, and remand this
cause to the compensation court to again rule on this issue
based on the existing record and to provide an explanation
which forms the basis for its ruling.
STATEMENT OF FACTS
The parties in this case do not dispute that Tchikobava was
employed by Albatross Express as a truckdriver and that on
August 9, 2010, Tchikobava sustained injuries in an accident
arising out of and in the course and scope of his employment.
On that day, Tchikobava and his team driver were driving a
semi-trailer truck from New Jersey to California. They had
stopped in Chicago, where the team driver began driving and
Tchikobava entered the sleeper berth and fell asleep. While in
Nebraska, Tchikobava was sleeping and his team driver was
driving, when their semi-trailer truck was struck from behind
by another semi-trailer truck. The force of the impact caused
Tchikobava to be thrown from the sleeping area of the semi-
trailer truck into the front of the driving compartment.
Tchikobava was transported to a hospital in Seward,
Nebraska. Once he was at the hospital, Tchikobava com-
plained of chest pain in the left rib area. He testified at the
hearing that he had pain in his back, his ribs, and the area
around his heart and stomach. Tchikobava was diagnosed with
left chest wall pain, left pleural effusion, and paracervical
tenderness. The compensation court found that Tchikobava
weighed approximately 400 pounds at the time of the acci-
dent. Tchikobava testified he was discharged after a couple
of hours.
Tchikobava was taken to a hotel. After falling asleep,
Tchikobava later awoke and was in a lot of pain. An ambu-
lance was called and drove Tchikobava back to the hospital.
The emergency room records from August 10, 2010, show that
Tchikobava complained of severe leg pain and rib pain, and
it was noted that he was having some discomfort in his chest
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TCHIKOBAVA v. ALBATROSS EXPRESS
Cite as 293 Neb. 223
and pain with breathing. Tchikobava was prescribed medica-
tion for the pain. A chest x ray showed a probable fracture of
one of Tchikobava’s ribs, and a CT scan of the chest showed
“[n]o obvious displaced rib fracture . . . .”
Albatross Express paid for Tchikobava to fly to his home
in New York. Tchikobava testified that it was a painful flight
home. When Tchikobava arrived in New York on August 12,
2010, his wife took him to a hospital there. The admitting
diagnosis was heart attack, and admission records also show
complaints of backache and chest pain. Three views of the
chest showed no evidence of acute left-sided rib fractures;
however, this was in contrast to another medical record which
noted there was a fracture of the seventh and eighth ribs on
the left side. X rays taken of the lower back and hip revealed
degenerative changes. A neurology consult was also performed
on August 12. Pain management was ordered by the con-
sulting doctor, and Tchikobava was admitted for a possible
heart attack.
On August 18, 2010, Tchikobava was transferred to another
New York hospital for a cardiac catheterization, which was neg-
ative. During the course of his stay at the hospital, Tchikobava
complained of bilateral leg and back pain, left-sided chest pain,
and vertigo. The medical reports noted that Tchikobava had
intact alertness, orientation, attention, and memory.
While he was admitted to the second New York hospital,
Tchikobava participated in physical therapy, but his ability to
participate in the therapy was limited by his pain. Tchikobava
was discharged on September 2, 2010, with a rolling walker,
home care to be provided by social services, and medication,
including oxycodone and antihypertensive agents.
On October 18, 2010, Tchikobava was examined by Dr.
Pushp R. Bhansali, an orthopedic surgeon. Dr. Bhansali
noted that Tchikobava had continued pain in his lower back
and his left rib cage, but he could not assess Tchikobava’s
range of motion due to Tchikobava’s obesity. Dr. Bhansali
ordered “EMG/NCV” testing, physiotherapy, and medications.
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TCHIKOBAVA v. ALBATROSS EXPRESS
Cite as 293 Neb. 223
Tchikobava was instructed to return in 6 weeks, but he did
not do so.
On October 22, 2010, an MRI of Tchikobava’s lumbar spine
was performed, and the MRI confirmed that Tchikobava had a
muscle spasm, mild degenerative disk disease, and a possible
broad-based disk herniation at L5-S1. However, the herniation
could not be confirmed due to Tchikobava’s movement during
the MRI.
At some point, Tchikobava began seeing Dr. Alexander
Berenblit, a board-certified neurologist, for treatment, and he
continued physical therapy with Dr. Berenblit’s office through
December 22, 2010. Dr. Berenblit ordered EMG/NCV test-
ing, which occurred on December 8, and the test results were
consistent with a bilateral L5-S1 radiculopathy. Dr. Berenblit
recommended further physical therapy.
Tchikobava testified that Dr. Berenblit retired, so he began
seeing Dr. Reyfman, a pain management specialist. Dr. Reyfman
first examined Tchikobava on November 22, 2010, and at that
visit, Tchikobava stated that he had low-back pain which radi-
ated to both legs and that the pain was made worse by move-
ment. Dr. Reyfman reviewed the MRI from October 22 and
the EMG/NCV test results, and he diagnosed Tchikobava with
lumbar disk displacement, lumbosacral neuritis radiculopathy,
a sprain of the ribs, and a fracture of one rib. Dr. Reyfman rec-
ommended that Tchikobava continue with physical therapy and
advised him to avoid certain movements, including bending,
lifting, or carrying anything heavy.
With regard to causation, Dr. Reyfman stated in his report:
“No pre-existing conditions exist that affects the causality. I
feel that there is a direct causal relationship between the acci-
dent described and the patient’s current injuries. The patient’s
symptoms and clinical findings are consistent with musculo-
skeletal injuries to the described areas.” Dr. Reyfman instructed
Tchikobava to return in 2 to 3 weeks. The only other report
from Dr. Reyfman contained in the record is from Tchikobava’s
office visit approximately 31⁄2 years later, on April 30, 2014.
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293 Nebraska R eports
TCHIKOBAVA v. ALBATROSS EXPRESS
Cite as 293 Neb. 223
At the hearing, Tchikobava testified that he visited Dr. Reyfman
more than twice, but only these two reports from Dr. Reyfman
are in the record.
Tchikobava testified that he sought treatment with his fam-
ily doctor, Dr. Iouri Sobol, from the period between January
2011 and April 2013, and he testified that Dr. Sobol prescribed
him pain medication. The record does not contain any medical
records or reports from Dr. Sobol. Furthermore, the record does
not contain any medical reports or records regarding any treat-
ment that Tchikobava received in 2011 or 2012.
The only medical report regarding Tchikobava’s treatment
in 2013 is an office note from Dr. Wayne A. Gordon, a neu-
ropsychologist, who examined Tchikobava on August 16 and
19, 2013. Tchikobava’s lawyer requested that Tchikobava be
seen by Dr. Gordon. Dr. Gordon administered a series of
tests regarding Tchikobava’s memory and coordination. Dr.
Gordon stated that based upon the results of these tests, he
believed Tchikobava was suffering from cognitive deficits, and
he determined that the cognitive deficits were “secondary to
the accident.”
The next evidence of Tchikobava’s medical treatment in
the record is Dr. Reyfman’s report dated April 30, 2014. Dr.
Reyfman stated in this report that Tchikobava complained of
low-back pain radiating out to his legs, along with numbness
and tingling in his feet and toes. He also complained of neck
pain radiating to his shoulders, along with a headache. Dr.
Reyfman ordered EMG/NCV testing on the arms and legs,
which showed evidence of a bilateral cervical radiculopathy at
C5-C6 and bilateral mild and chronic L4-5 and L5-S1 lumbo-
sacral radiculopathy. He also ordered another MRI of the lum-
bar spine, which showed disk space collapse at L5-S1 leading
to lateral recess stenosis.
In a report dated May 2, 2014, Dr. Reyfman stated that
Tchikobava was at maximum medical improvement. He stated
that Tchikobava suffered permanent impairment and could
work only in the “less than sedentary” demand category.
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TCHIKOBAVA v. ALBATROSS EXPRESS
Cite as 293 Neb. 223
Tchikobava was instructed to return in 1 week. The record does
not contain other medical reports from Dr. Reyfman.
On May 28, 2014, Tchikobava visited Dr. Vadim Lerman
and stated he had low-back pain and neck pain. Dr. Lerman
reviewed the MRI from April 30, 2014, and he diagnosed
Tchikobava with a lumbar radiculopathy, lumbar pain, spinal
stenosis of the lumbar region, and a lumbar herniated disk. Dr.
Lerman stated that he did not feel surgery was warranted, and
he recommended that Tchikobava continue physical therapy,
lose weight, and consider bariatric surgery.
At the hearing, Tchikobava testified that none of the treat-
ment he received relieved him of his pain and that physical
therapy made his pain worse. He testified that he cannot bathe
himself, dress himself, or go to the bathroom or get out of his
wheelchair without assistance. He further testified that he can-
not drive and that his wife had given up her job as a nurse’s
aide in order to stay home and take care of him. Tchikobava
also testified that he was informed that he cannot have surgery
until he loses weight.
At the request of Albatross Express, Dr. Malcolm G.
Coblentz, a general surgeon, examined Tchikobava on August
6, 2012. Dr. Coblentz reviewed several of Tchikobava’s medi-
cal records, but he did not review the EMG/NCV testing
from December 2010. Dr. Coblentz noted that his examination
was limited by Tchikobava’s obesity and lack of cooperation.
Dr. Coblentz stated that he found no evidence of disability,
based on his observations and limited physical examination.
In a report dated June 12, 2014, Dr. Coblentz agreed with
Dr. Reyfman that Tchikobava had reached maximum medical
improvement on May 2, 2014.
On November 12, 2013, Tchikobava filed his petition in
the workers’ compensation court. In his petition, Tchikobava
alleged that as a result of the August 9, 2010, accident, he
suffered “broken ribs; head and neck injuries, including a trau-
matic brain injury . . . ; an exacerbated heart condition; a herni-
ated disc at the L5-S1 level, resulting in bilateral radiculopathy;
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and various other less serious injuries.” Tchikobava sought
temporary and permanent disability benefits, past and future
medical expenses, and attorney fees and penalties for nonpay-
ment of medical expenses and indemnity.
Albatross Express filed its answer on December 6, 2013. In
its answer, Albatross Express generally denied the allegations
set forth in Tchikobava’s petition. Albatross Express further
stated that Tchikobava’s injuries and disabilities were “the
result of the natural progression of preexisting conditions or
arise out of independent intervening incidents entirely unre-
lated to” Tchikobava’s employment with Albatross Express.
A hearing was held on February 24, 2015. At the hear-
ing, Tchikobava offered exhibit 20, which was a deposition
of Dr. Reyfman that was taken in connection with a separate
negligence action that Tchikobava had brought against the
employer of the driver who Tchikobava alleged was responsi-
ble for the accident. Albatross Express was a party in the neg-
ligence case, evidently for subrogation interests. With respect
to Dr. Reyfman’s deposition, Tchikobava had served notice
of Dr. Reyfman’s deposition upon the attorney representing
Albatross Express in the negligence case. That attorney was
in the same office as Albatross Express’ attorney in the pres-
ent workers’ compensation case. The attorney for Albatross
Express in the negligence case did not attend the deposition
of Dr. Reyfman.
Tchikobava initially offered this deposition of Dr. Reyfman
at the beginning of the hearing in this case, and Albatross
Express objected to it on the bases of hearsay, foundation, and
relevancy. The compensation court stated:
It’s a close call here because Exhibit 20 [the deposition]
is not signed, as I see it. If it were signed by the doctor, I
think it could come in as a Rule 10 report.
Given that it’s not signed, I have to consider it for what
it is, a deposition taken in another case where [Albatross
Express’ attorney in the compensation case] was not given
an opportunity to cross-examine him and may constitute
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hearsay, although the Court is not governed by the rules
of hearsay.
So it gets to be a little bit of a close call as to whether
it’s going to come in or not.
After some discussion, Tchikobava’s attorney stated he would
withdraw the offer of the deposition, “with the opportunity to
offer it at the close of my evidence, if I think it’s necessary
after the cross-examination of . . . Tchikobava.”
At the close of evidence, Tchikobava reoffered Dr.
Reyfman’s deposition. Albatross Express again objected,
stating: “Objection, hearsay, pursuant to Rule 27 — Section
27-804 and particularly 27-804, subpart two, subpart A, as well
as lack of evidence of unavailability. I think that covers it.” In
determining to sustain Albatross Express’ objection, the com-
pensation court stated:
So my concern is we have this deposition that [Albatross
Express’ attorney in the compensation case] did not attend
in a case that is captioned in another court being offered
as evidence against his client.
On the other hand, the hearsay rules don’t necessarily
apply to this court, but I have concerns of due process.
I’m going to sustain the objection as to — as to hear-
say. And the reasoning is I just don’t think that due proc­
ess allows this out of court statement to be admitted to
prove the truth of the matter asserted when [Albatross
Express’ attorney in the compensation case] did not have
the opportunity to cross-examine Dr. Reyfman.
Accordingly, Dr. Reyfman’s deposition was not received into
evidence in this case.
Following the hearing, on April 1, 2015, the compensation
court filed its award, in which it generally awarded Tchikobava
temporary total disability benefits and permanent total disabil-
ity benefits, and it denied future medical expenses, penalties,
attorney fees, and interest. In its award, the workers’ compen-
sation court stated that it found Tchikobava “proved he suf-
fered lumbar disc displacement (herniated disc), lumbosacral
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neuritis radiculopathy and a sprain of the ribs.” In making
these findings, the court stated that it relied on Dr. Reyfman’s
report dated November 22, 2010. The court further stated that
it “was not convinced” that Tchikobava had suffered a neck
injury in the accident.
With respect to temporary total disability benefits, the court
determined that Tchikobava was entitled to temporary total
disability benefits from August 10, 2010, to and including
December 8, 2010. The court stated that Dr. Reyfman imposed
restrictions upon Tchikobava at the November 22, 2010, office
visit and that those restrictions support Tchikobava’s claim
for temporary total disability benefits between August 10 and
December 8 because Tchikobava’s physical condition during
that period was “virtually identical” to his physical condition
when Dr. Reyfman examined him on November 22.
The court went on to state that it
cannot award [Tchikobava] any further [temporary total
disability] benefits, because there is simply a lack of
persuasive proof that [Tchikobava] was treating and recu-
perating from his injuries and disabled after December
8, 2010, which is the last medical record documenting
medical treatment for his lower back until the office visit
with Dr. Reyfman on April 30, 2014.
The court further stated that even though Tchikobava testified
that he saw his family doctor, Dr. Sobol, during that period, the
record does not contain any reports or records from Dr. Sobol
regarding the treatment Tchikobava received, Tchikobava’s
pain or injuries that were being treated, or the success or fail-
ure of such treatment. The court further stated that “[w]hile
Dr. Reyfman examined [Tchikobava] on April 30, 2014, he
placed [Tchikobava] at maximum medical improvement only
two days later. This single exam was not sufficient to convince
the Court [Tchikobava] had been disabled for the three years
prior.” Accordingly, the court determined that Tchikobava
“failed to prove he was entitled to any indemnity benefits from
December 9, 2010 to and through May 1, 2014.”
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TCHIKOBAVA v. ALBATROSS EXPRESS
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With respect to permanent disability benefits, the court found
that Tchikobava “suffered a low back injury, which is an injury
to the body as a whole.” The court stated that Tchikobava
offered evidence of permanent restrictions as imposed by Dr.
Reyfman on April 30, 2014, and that this was sufficient to meet
his burden of proof that he had been permanently impaired as
a result of the accident on August 9, 2010.
The court then discussed the report completed by Karen
Stricklett, the agreed-upon vocational counselor in this case.
The court noted that in her report, Stricklett “provided two
opposing opinions regarding [Tchikobava’s] loss of earning
capacity based upon the two differing medical opinions of
Dr. Coblentz and Dr. Reyfman.” Stricklett opined that if the
court accepted Dr. Coblentz’ opinion that Tchikobava suffered
no impairment and no restrictions, then Tchikobava suffered
a 0-percent loss of earning capacity. Conversely, if the court
accepted Dr. Reyfman’s opinions, then Tchikobava suffered a
100-percent loss of earning capacity.
In its award, the court stated that it was ultimately per-
suaded by Tchikobava’s testimony and the medical opinion
of Dr. Reyfman, and therefore, given Stricklett’s report,
the court found Tchikobava to be permanently and totally
disabled. The court stated that Tchikobava was entitled to
permanent total disability benefits starting on May 2, 2014,
and continuing for so long as he remains permanently and
totally disabled.
With respect to future medical care, the compensation court
noted, citing Foote v. O’Neill Packing, 262 Neb. 467, 632
N.W.2d 313 (2001), that before an order for future medical
care may be entered, there should be either a stipulation of
the parties to that effect or evidence in the record sufficient
to support a determination that future medical treatment will
be reasonably necessary. The compensation court stated that
because there was no stipulation between the parties regarding
an award of future medical treatment, Tchikobava had the bur-
den to prove that he was entitled to such an award.
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TCHIKOBAVA v. ALBATROSS EXPRESS
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The compensation court determined that Tchikobava “failed
to meet his burden of proof for ongoing medical care for his
rib and back injuries.” The court stated that there was “little to
no evidence from a medical doctor” that Tchikobava required
ongoing medical care. The court noted that Tchikobava’s last
medical treatment was from Dr. Lerman on May 28, 2014,
and that Dr. Lerman had stated that Tchikobava did not need
surgery and should continue with physical therapy. However,
the court declined to award physical therapy for Tchikobava,
because the evidence showed that Tchikobava had not done
physical therapy since 2010 and because Tchikobava testi-
fied that physical therapy only made his pain worse. The
court stated that “[t]here was simply an absence of evidence
proving [Tchikobava] would require or need additional medi-
cal care for his low back injury or his rib injury.” Therefore,
given the record, the court determined that Tchikobava was
not entitled to any future medical care to be paid for by
Albatross Express.
In sum, in its award filed April 1, 2015, the compensation
court determined that Tchikobava was entitled to temporary
total disability benefits from August 10, 2010, to and including
December 8, 2010. The court determined that Tchikobava was
entitled to permanent total disability benefits starting on May
2, 2014, and continuing for so long as Tchikobava remains per-
manently and totally disabled. The court stated that Albatross
Express is entitled to a credit for indemnity benefits already
paid to Tchikobava. The court also determined that Tchikobava
was not entitled to future medical expenses to be paid for by
Albatross Express and that Tchikobava was not entitled to an
award of penalties, attorney fees, or interest.
Tchikobava appeals.
ASSIGNMENTS OF ERROR
Tchikobava claims, restated, that the compensation court
erred when it (1) sustained Albatross Express’ objection to the
receipt of Dr. Reyfman’s deposition taken in a separate case,
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(2) failed to award future medical expenses to Tchikobava, and
(3) determined that Tchikobava was not entitled to temporary
total disability indemnity benefits for the period of December
9, 2010, through May 1, 2014.
STANDARDS OF REVIEW
[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp.
2014), an appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (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 war-
rant 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. Hynes v. Good Samaritan Hosp., 291 Neb. 757,
869 N.W.2d 78 (2015). Determinations by a trial judge of the
Workers’ Compensation Court will not be disturbed on appeal
unless they are contrary to law or depend on findings of fact
which are clearly wrong in light of the evidence. Id.
[3] Admission of evidence is within the discretion of the
Workers’ Compensation Court, whose determination in this
regard will not be reversed upon appeal absent an abuse of
discretion. Id.
[4,5] Whether a plaintiff in a Nebraska workers’ compensa-
tion case is totally disabled is a question of fact. Kim v. Gen-X
Clothing, 287 Neb. 927, 845 N.W.2d 265 (2014). In testing
the sufficiency of the evidence to support the findings of fact
in a workers’ compensation case, every controverted fact must
be resolved in favor of the successful party and the successful
party will have the benefit of every inference that is reason-
ably deducible from the evidence. Id.
ANALYSIS
Dr. Reyfman’s Deposition.
Tchikobava generally argues that the compensation court
erred when, at the hearing in this matter, it did not receive
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Tchikobava’s offer of Dr. Reyfman’s deposition, which had
been taken in connection with a separate negligence action
that Tchikobava brought against the employer of the driver
who Tchikobava alleged was responsible for the accident.
Tchikobava contends that Dr. Refyman’s deposition was admis-
sible pursuant to the Nebraska Workers’ Compensation Court
rules of procedure, specifically Workers’ Comp. Ct. R. of Proc.
10 (2011), regarding evidence. Tchikobava further argues for
admissibility under Neb. Rev. Stat. §27-804(2)(a) (Reissue
2008), which generally provides that a deposition is not
excluded by the hearsay rule if the declarant is unavailable as a
witness and if the deposition was taken in a different proceed-
ing at the insistence of or against a party with an opportunity to
develop the testimony with motive and interest similar to those
of the party against whom it is now offered. Tchikobava argues
that Dr. Reyfman’s deposition is not excluded by the hearsay
rule, because Dr. Reyfman was unavailable in this case and
because Albatross Express had received notice of the deposi-
tion in the negligence action and therefore had the opportunity
to cross-examine Dr. Reyfman.
In response, Albatross Express generally argues that the
compensation court did not err when it refused to admit Dr.
Reyfman’s deposition, and that even if the refusal was incor-
rect, such error was not reversible error, because there was
nothing new or significant contained in Dr. Reyfman’s deposi-
tion that would have changed the compensation court’s ruling.
We determine that even if the compensation court erred when
it refused to receive Dr. Reyfman’s deposition, such error was
not reversible error.
[6] Admission of evidence is within the discretion of the
Workers’ Compensation Court, whose determination in this
regard will not be reversed upon appeal absent an abuse of
discretion. Hynes v. Good Samaritan Hosp., 291 Neb. 757,
869 N.W.2d 78 (2015). We have stated that as a general rule,
the compensation court is not bound by the usual common-
law or statutory rules of evidence, but its discretion to admit
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evidence is subject to the limits on constitutional due process.
See Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829
N.W.2d 113 (2013).
With respect to the admission of evidence in workers’ com-
pensation cases, rule 10 of the Nebraska Workers’ Compensation
Court rules of procedure provides:
The Nebraska Workers’ Compensation Court is not
bound by the usual common law or statutory rules of
evidence; and accordingly, with respect to medical evi-
dence on hearings before a judge of said court, written
reports by a physician or surgeon duly signed by him,
her or them . . . may, at the discretion of the court, be
received in evidence in lieu of . . . the personal testi-
mony of such physician or surgeon . . . . A sworn state-
ment or deposition transcribed by a person authorized to
take depositions is a signed, written report for purposes
of this rule.
A signed narrative report by a physician or surgeon . . .
setting forth the history, diagnosis, findings and conclu-
sions of the physician or surgeon . . . which is relevant to
the case shall be considered evidence on which a reason-
ably prudent person is accustomed to rely in the conduct
of serious affairs. The Nebraska Workers’ Compensation
Court recognizes that such narrative reports are used
daily by the insurance industry, attorneys, physicians and
surgeons and other practitioners, and by the court itself
in decision making concerning injuries under the juris-
diction of the court.
Any party against whom the report may be used shall
have the right, at the party’s own initial expense, of cross
examination of the physician or surgeon . . . either by
deposition or by arranging the appearance of the physi-
cian or surgeon . . . at the hearing.
Workers’ Comp. Ct. R. of Proc. 10(A).
At the hearing before the compensation court, Tchikobava
offered the deposition of Dr. Reyfman taken in the separate
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negligence case. Pursuant to rule 10 and our case law, it was
within the compensation court’s discretion whether to receive
Dr. Reyfman’s deposition, subject to the limits on constitu-
tional due process. For purposes of this case, we need not
decide whether the compensation court abused its discretion
when it denied admission of Dr. Reyfman’s deposition, because
even if the ruling was incorrect, any such error was not revers-
ible error.
[7-9] In a civil case, the admission or exclusion of evidence
is not reversible error unless it unfairly prejudiced a substan-
tial right of the complaining party. In re Estate of Clinger, 292
Neb. 237, 872 N.W.2d 37 (2015). The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence
is admitted without objection. Steinhausen v. HomeServices
of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015). Where evi-
dence is cumulative to other evidence received by the court,
its exclusion will not be considered prejudicial error. Scott v.
Khan, 18 Neb. Ct. App. 600, 790 N.W.2d 9 (2010).
In the present case, although the compensation court denied
Tchikobava’s offer of Dr. Reyfman’s deposition, it received
Tchikobava’s evidence of medical records from Dr. Reyfman.
A comparison of Dr. Reyfman’s medical records to his depo-
sition shows that other than an explanation of his qualifica-
tions, there was nothing new or substantial in Dr. Reyfman’s
testimony in his deposition. In the deposition, Dr. Reyfman
explained and defined certain medical procedures and terminol-
ogy, and he testified to Tchikobava’s injuries and restrictions,
which information was also contained in the admitted medical
records. Thus, evidence substantially similar to Dr. Reyfman’s
deposition was in evidence and the exclusion of the deposi-
tion was not prejudicial. See Steinhausen v. HomeServices of
Neb., supra.
Tchikobava seems to argue that Dr. Reyfman’s deposition
would have been influential in connection with his claims
that the compensation court erred when it did not award
him temporary total disability benefits for the period from
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December 2010 to May 2014 and when it did not award him
future medical expenses. We reject this argument. Nothing
in Dr. Reyfman’s deposition testimony meaningfully relates
to either of these two issues. In his deposition, Dr. Reyfman
did not discuss whether Tchikobava was disabled for the time
period Tchikobava asserts he should have been awarded tem-
porary total disability benefits, and Dr. Reyfman did not testify
regarding the need for future medical care and expenses.
Because Dr. Reyfman’s deposition did not contain informa-
tion that would have altered the compensation court’s decision
to reject temporary total disability benefits for the period from
December 2010 to May 2014 and future medical expenses, the
exclusion of Dr. Reyfman’s deposition did not unfairly preju-
dice a substantial right of Tchikobava. Thus, even assuming
that the compensation court erred when it did not admit Dr.
Reyfman’s deposition into evidence, we determine that any
such error was not reversible error.
Future Medical Expenses.
Tchikobava claims that the compensation court erred when it
did not award him future medical expenses. Tchikobava asserts
that he presented evidence that his doctors recommended that
Tchikobava undergo bariatric surgery to help facilitate weight
loss. He also argued that Dr. Reyfman’s records indicated
that Tchikobava took pain medication for his injuries, and
Tchikobava argues that “[i]t is clear that [Tchikobava] will
require pain treatment for the remainder of his life.” Brief for
appellant at 21. We determine that the compensation court
did not err when it did not award future medical expenses
to Tchikobava.
[10,11] Before an order for future medical benefits may
be entered, there should be a stipulation of the parties or
evidence in the record to support a determination that future
medical treatment will be reasonably necessary to relieve the
injured worker from the effects of the work-related injury or
occupational disease. Sellers v. Reefer Systems, 283 Neb. 760,
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811 N.W.2d 293 (2012). An award of future medical expenses
requires explicit evidence that future medical treatment is rea-
sonably necessary to relieve the injured worker from the effects
of the work-related injury. Adams v. Cargill Meat Solutions, 17
Neb. Ct. App. 708, 774 N.W.2d 761 (2009).
In the current case, there was no stipulation between the
parties regarding an award of future medical treatment, and
therefore, Tchikobava was required to present evidence show-
ing he was entitled to an award of future medical expenses.
In its award, the compensation court noted that “[t]here is
little to no evidence from a medical doctor that [Tchikobava]
requires ongoing medical care.” The compensation court noted
that Tchikobava’s last medical treatment was from Dr. Lerman
on May 28, 2014, and in his report, Dr. Lerman stated that
Tchikobava did not need surgery and that he should continue
with physical therapy. The compensation court declined to
award physical therapy for Tchikobava, stating that Tchikobava
had not done physical therapy since 2010 and that Tchikobava
had testified that physical therapy only made his pain worse.
Based on the lack of evidence demonstrating that Tchikobava
would need additional medical care for his injuries, the com-
pensation court determined that Tchikobava was not entitled to
any future medical expenses.
Tchikobava asserts that Drs. Reyfman, Lerman, and Coblentz
recommended that he undergo bariatric surgery in order to
facilitate weight loss, and that accordingly, he should have
been awarded future medical expenses with respect to such sur-
gery. However, the record shows that although weight loss was
recommended, none of the recommendations were attributed to
Tchikobava’s compensable injury.
Tchikobava also argues that Dr. Reyfman’s records show
Tchikobava has been prescribed pain medication and that “[i]t
is clear that [Tchikobava] will require pain treatment for the
remainder of his life.” Brief for appellant at 21. We note
that pain medication is mentioned in Dr. Reyfman’s medical
report dated April 30, 2014, and at trial, during his testimony,
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Tchikobava mentioned that he was taking pain medication.
However, there is no indication in the record that Tchikobava
would need to continue taking the medication in the future.
In Adams v. Cargill Meat Solutions, supra, an employee,
who had brought a workers’ compensation action against her
employer, presented evidence at trial that she was currently
taking pain medication, but she did not present evidence that
she would need to take such medication in the future. The
Nebraska Court of Appeals determined that the employee had
failed to present sufficient evidence to prove that future medi-
cal treatment would be reasonably necessary to relieve the
effects of her work-related injury, and accordingly, it reversed
the decision of the three-judge review panel that had affirmed
the trial court’s award of future medical expenses. In making
its determination, the Court of Appeals stated:
The evidence does not support the trial court’s deter-
mination that [the employee] required further medical
treatment for her back injury. In awarding future medical
expenses, the trial court relied on [the employee’s] testi-
mony that she was taking medication at the time of trial
and notations in [the employee’s] medical records indi-
cating her history of taking prescription pain medication.
Evidence that [the employee] currently takes pain medi-
cation or that she has a history of taking such medication
is not enough to demonstrate that she requires future
medical treatment to relieve the effects of her injury. As
such, the trial court’s finding that [the employee] “car-
ried her burden of proof and persuasion” as to an award
of future medical expenses is not supported by suffi-
cient evidence.
The review panel affirmed the trial court’s award of
future medical expenses after concluding that the evi-
dence presented at trial was sufficient to support an
“inference” that [the employee] will continue to take pain
medication after the time of trial. Such an inference is
simply not supported by the evidence in the record. There
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is no evidence that [the employee] intends to continue
to take her prescription pain medication. In fact, there is
no indication that [the employee] finds the medication to
be beneficial. She testified that even when she took the
medication, she was in constant pain and she could not
complete basic daily tasks. In addition, she testified that
her pain had increased, rather than decreased, since the
time of the accident.
Simply stated, an award of future medical expenses
requires explicit evidence that future medical treatment
is reasonably necessary to relieve the injured worker
from the effects of the work-related injury. Here, there
is no evidence that [the employee] requires any future
medical treatment or that future medical treatment would
be in any way beneficial in relieving the effects of her
back injury.
Adams v. Cargill Meat Solutions, 17 Neb. Ct. App. 708, 713-14,
774 N.W.2d 761, 765 (2009).
We apply the analysis in Adams to the present case. In this
case, the fact that Tchikobava was taking pain medication at
the time of trial and had taken pain medication in the past does
not constitute sufficient explicit evidence that he would need
to continue taking such medication in the future or that he
would need to be awarded future medical expenses.
Because Tchikobava failed to present sufficient evidence to
support a determination that future medical treatment would
be reasonably necessary to relieve him from the effects of his
work-related injury, we determine that the compensation court
did not err when it did not award future medical expenses
to Tchikobava.
Temporary Total Disability Benefits.
Tchikobava claims that the compensation court erred when
it did not award him temporary total disability benefits for the
period from December 9, 2010, through May 1, 2014. For the
reasons explained below, we reverse this ruling and remand the
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cause to the compensation court on the existing record with
directions to the compensation court to rule on this issue and to
clarify its reasoning regarding its disposition of Tchikobava’s
claim for temporary total disability benefits for the period from
December 9, 2010, through May 1, 2014.
[12,13] We have stated that temporary disability is the
period during which the employee is submitting to treatment,
is convalescing, is suffering from the injury, and is unable to
work because of the accident. Kim v. Gen-X Clothing, 287 Neb.
927, 845 N.W.2d 265 (2014). Total disability exists when an
injured employee is unable to earn wages in either the same
or a similar kind of work he or she was trained or accustomed
to perform or in any other kind of work which a person of the
employee’s mentality and attainments could perform. Id.
[14] Whether a plaintiff in a Nebraska workers’ compensa-
tion case is totally disabled is a question of fact. Id. In testing
the sufficiency of the evidence to support the findings of fact
in a workers’ compensation case, every controverted fact must
be resolved in favor of the successful party and the successful
party will have the benefit of every inference that is reasonably
deducible from the evidence. Zwiener v. Becton Dickinson-
East, 285 Neb. 735, 829 N.W.2d 113 (2013). Moreover, as the
trier of fact, the Workers’ Compensation Court is the sole judge
of the credibility of witnesses and the weight to be given their
testimony. Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869
N.W.2d 78 (2015).
[15-17] We have held that if the nature and effect of a claim-
ant’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. Frauendorfer
v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).
Although an expert witness may be necessary to establish the
cause of a claimed injury, the Workers’ Compensation Court is
not limited to expert testimony to determine the degree of dis-
ability but instead may rely on the testimony of the claimant.
Id. We have further stated that although medical restrictions
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or impairment ratings are relevant to a claimant’s disability,
the trial judge is not limited to expert testimony to determine
the degree of disability but instead may rely on the testimony
of the claimant. Id.
In its award, with respect to the period of December 9, 2010,
to May 1, 2014, the compensation court stated:
There is no evidence by way of medical records to
prove [Tchikobava] was seeking medical treatment for
his low back injury that was aiding to his recovery dur-
ing the calendar years of 2011, 2012, 2013 or 2014.
While [Tchikobava] testified he saw his family doctor, Dr.
Sobol, the Court does not have one record from that doc-
tor’s office to document what treatment [Tchikobava] was
receiving, the nature and extent of [Tchikobava’s] pain
or injuries for which he was treating or to document the
success or failure of that treatment he received. Moreover,
not one doctor limited [Tchikobava] or took [Tchikobava]
off work in the calendar years of 2011, 2012, 2013 or
2014. While Dr. Reyfman examined [Tchikobava] on
April 30, 2014, he placed [Tchikobava] at maximum med-
ical improvement only two days later. This single exam
was not sufficient to convince the Court [Tchikobava]
had been disabled for the three years prior. The Court
finds [Tchikobava] failed to prove he was entitled to any
indemnity benefits from December 9, 2010 to and through
May 1, 2014.
As noted by the compensation court, there are no medi-
cal records that were received into evidence regarding the
period from December 9, 2010, until a report by Dr. Reyfman
dated April 30, 2014. However, Tchikobava provided evidence
regarding the status of his injury for the period of December
9, 2010, through May 1, 2014, by way of his testimony at the
trial. At trial, Tchikobava testified that he regularly saw Dr.
Sobol, who prescribed him medication, and he testified that
because of his pain, it was difficult for him to move and he did
not try to apply for employment.
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It has been stated that a compensation court may refuse to
follow uncontradicted evidence in the record,
but when it does so, its reasons for rejecting the only
evidence in the record should appear—e.g., that the testi-
mony was inherently improbable, or so inconsistent as to
be incredible, that the witness was interested, or that the
witness’ testimony on the point at issue was impeached
by falsity in his statements on other matters. Unless
some explanation is furnished for the disregard of all the
uncontradicted testimony or other evidence in the record,
the [compensation court] may find its award reversed
as arbitrary and unsupported. This sometimes occurs
when the [compensation court] denies compensation on
a record that contains nothing but testimony favorable to
the claimant, with no indication whether all or part of the
testimony was disbelieved, and if so, why.
12 Arthur Larson & Lex K. Larson, Larson’s Workers’
Compensation Law § 130.05[3] at 130-38.1 (2015). We agree
with the commentary just quoted and apply it to this case.
As stated, Tchikobava’s testimony is the only evidence
contained in the record regarding the status of his injuries
for the period from December 9, 2010, through May 1,
2014. There is no other evidence, such as medical records,
that affirm or contradict the testimony Tchikobava gave at
the hearing regarding this period. The compensation court’s
award fails to state what weight, if any, the court gave to
Tchikobava’s testimony. It is also unclear whether the com-
pensation court denied temporary total disability benefits for
the period from December 9, 2010, through May 1, 2014,
because it found Tchikobava’s testimony incredible or unreli-
able or because the court simply disregarded Tchikobava’s
testimony as evidence of the extent of his disability for that
period and it had no medical records for the period at issue
to assist it in making a ruling. Accordingly, we reverse the
compensation court’s ruling on this issue and remand this
cause to the compensation court on the existing record with
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directions to again rule on Tchikobava’s claim for temporary
total disability benefits for the period of December 9, 2010,
through May 1, 2014, and to provide an explanation which
forms the basis for its ruling.
CONCLUSION
Assuming, without deciding, that it was error for the com-
pensation court to refuse to admit Dr. Reyfman’s deposition
into evidence, such error was not reversible error. We deter-
mine that the compensation court did not err when it did not
award future medical expenses to Tchikobava. These rulings are
affirmed. With respect to the temporary total disability issue,
we reverse the denial of benefits and we remand the cause to
the compensation court on the existing record with directions
to the court to again rule on Tchikobava’s claim for temporary
total disability benefits for the period from December 9, 2010,
to May 1, 2014, and to provide an explanation which forms the
basis for its ruling.
A ffirmed in part, and in part reversed
and remanded with directions.