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Damme v. Pike Enters., Inc. – Court Rejects Employer’s “Temporary System Aggravation” Claim

In any workers’ compensation case, it tends to be in the employer’s best interests to downplay the extent to which an employee was hurt and the causal connection between a worker’s injury and the work accident.
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Even if the state commission or courts won’t completely deny a worker benefits, it may be possible to have benefits significantly reduced if employer is successful on either of these fronts.

In the recent case of Damme v. Pike Enters., Inc., attorneys for the company argued the worker’s pre-existing degenerative back condition undercut her claim for benefits for work injury because the on-the-job accident was not in fact an “injury” but rather a “temporary system aggravation.”

Atlanta workers’ compensation attorneys know there have been a number of courts nationally holding temporary aggravation of an existing condition is not compensable under the law.

The law does allow persons with a pre-existing condition to collect benefits when that condition is worsened as a result of a work accident. However, claimants should recognize employers will likely bring this defense, and your legal team must come prepared.

In Damme, before the Nebraska Supreme Court, worker had a history of degenerative disc disease, going back to 1995, when lower back problems prompted her to undergo a lumbar laminectomy. She additionally suffered from mental health problems and illicit drug use, and regularly sought treatment from a psychiatrist.

In 2001, she suffered an on-the-job injury when several boxes fell on top of her, injuring her back and neck. She underwent surgery, and her employer agreed to cover her for 8 percent whole-body permanent partial disability.

The next year, she began receiving Social Security Disability Insurance benefits due to her psychiatric problems, though she continued to work because “keeping busy” helped with her mental stability.

Two years after that, she was struck by a semi truck, and while she did report mild pain, she had no complications from the crash.Two years later, she suffered a fall at a store, resulting in increased neck and lower back pain. She underwent physical therapy, but did not undergo another surgery.

Another two years passed. She was working for the same employer when she tripped and fell against a wall, resulting in neck pain. A month after that, the neck pain was still severe, and had remained constant, though with variable intensity. She again underwent physical therapy.

The following year, she went to work for a fast-food restaurant. While carrying bags inside, she bent over to put the bags down and felt a pop in her back, followed by searing, burning pain. At first, she was unable to stand. She had never before experienced such pain. She went to the hospital, which diagnosed her with a sprain and prescribed her muscle relaxers and pain medication. A few days later, she was given a stronger pain medication. An x-ray revealed her condition had significantly worsened from three years earlier. She underwent numerous non-surgical treatments.

Not long after, she was arrested after she stopped taking her psychiatric medication. She was later found incompetent to stand trial, and was incarcerated for six months. Upon release, she was referred to a new pain management physician and a new surgeon. That doctor noted since her work injury, the pain was constant. He agreed to perform surgery if she stopped smoking and reduced her narcotic intake. The surgery, performed in January 2013, was successful. Within three months, her back pain was minimal and occasional. She was later released to work without restrictions.

In seeking workers’ compensation benefits, the court found no question she injured her lower back in October 2009 while working for the restaurant. She had not before that been prescribed narcotic pain medication and she continued to experience severe pain until her surgery. Although the company denied benefits, the court found surgery was a reasonable and necessary treatment for her 2009 injury. The court awarded her temporary total disability benefits from the time of the injury through the time of her surgery. It also rejected the company’s assertion it should not have to pay benefits to the worker while she was incarcerated.

Employer appealed this ruling, arguing worker’s condition was a temporary aggravation of a pre-existing condition, as opposed to an exacerbation of that condition. The state supreme court rejected that argument, and affirmed the lower court’s assignment of benefits. The court noted a claimant isn’t required to prove apportionment of symptoms to an accident, so long as evidence shows the accident was a contributing cause of injury.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:
Damme v. Pike Enters., Inc., Dec. 5, 2014, Nebraska Supreme Court
More Blog Entries:
In re Essex Ins. Co. – Work Amputation Victim Fights for Insurance Coverage, Dec. 12, 2014, Atlanta Workers’ Compensation Attorney Blog