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Incarceration doesn't bar Nebraska worker from receiving benefits: Court

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A Nebraska worker who sustained a compensable injury proved a loss of earning capacity and, therefore, is entitled to receive temporary total disability benefits despite her incarceration, the state Supreme Court ruled on Dec. 5.

The case was an unprecedented one in Nebraska, where the Workers’ Compensation Act doesn’t currently bar prisoners from receiving benefits, court records show.

States like Connecticut and Pennsylvania also allow incarcerated workers to collect benefits, but states like New York and Ohio have statues that do allow payers to withhold payments to incarcerated workers.

In the Nebraska case, Patricia M. Damme, who has a history of degenerative disk disease, hurt her back in October 2009 while working for Pike Enterprises, Inc., which owns a McDonald’s restaurant, according to records.

Ms. Damme said that when she bent over to set bags down on a table, she felt “a searing pain” in her back – different from any pain she experienced with her previous back problems, records show.

She went to the hospital that night where she was told she likely had a lumbosacral sprain. She was given an anti-inflammatory shot and prescribed a muscle relaxant and pain medication, according to records.

A pain consultant in November 2009 said Ms. Damme had a herniated disk, multilevel degenerative disk disease in her lumbosacral spine, and lumbar back pain, records show. She received a prescription for physical therapy and OxyContin.

Another physician examined Ms. Damme in December and opined that her October injury “aggravated her degenerative joint disease of the spine and that her employment was a contributing cause of her symptoms,” according to records. And in February 2010, her primary care physician dismissed her from his care because he believed she was selling her opioids.

Pike had Ms. Damme examined in May 2010 by another physician who couldn’t determine what portion of her pain resulted from the October 2009 injury and what portion resulted from the natural progression of her preexisting degenerative lumbar disc disease, according to records.

Like the other physicians Ms. Damme was treated by, the doctor said he was reluctant to recommend surgery because of her psychiatric problems and use of narcotics.

Then, in January 2011, Ms. Damme was arrested for “unspecified reasons,” records show. She said she stopped taking her psychiatric medications because of the opioids she was taking for her back pain, “which caused her to get into trouble.”

She was committed to a psychiatric hospital for six months, as she “was not competent to stand trial,” according to records. She was then incarcerated from June 17 to Dec. 28, 2011.

Ms. Damme went to a new surgeon in July 2012 who said he would perform the necessary surgery if she stopped smoking and cut back on opioids, records show.

She had surgery in January 2013 and, within six months, reported that she was no longer in pain, according to records. The surgeon released her to return to work without restrictions on June 17, 2013, indicating that she had reached maximum medical improvement, records show.

A Nebraska Workers’ Compensation Court judge found that Ms. Damme did injure her lower back in the October 2009 accident and awarded her temporary total disability benefits from Nov. 9, 2009 through June 17, 2013.

According to records, “when the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the (Workers’ Compensation Court).”

In addition to arguing there was no causal relationship between Ms. Damme’s October 2009 accident and her January 2013 surgery, among other things, Pike said Ms. Damme shouldn’t receive benefits for the time she was incarcerated.

On Dec. 5, the Nebraska Supreme Court unanimously ruled that Ms. Damme did sustain a work-related injury in October 2009 and that it was a contributing factor to her temporary total disability.

The state Supreme Court agreed with Ms. Damme’s argument that “the majority of courts have held a subsequent incarceration does not affect a claimant’s eligibility for workers compensation benefits.”

“If a claimant can prove a loss of earning capacity, his or her incarceration after sustaining a compensable injury is not an event that bars the claimant’s receipt of disability benefits, absent a statute requiring that result,” the ruling states.