An employee received extensive injuries when his whole body was run over by a tractor trailer. His employer isn’t contesting that this is a work-related injury. But the company doesn’t think it should pay for a wheelchair accessible van for the injured worker.
While working for Precast Haulers in Nebraska, Michael Simmons was trying to activate a hydraulic lever on a tractor trailer when he slipped and fell. The tires of the fully loaded truck ran over his body and crushed him.
Simmons suffered extensive injuries, including:
- pelvic fractures
- bowel and bladder dysfunction
- lumbar spine fracture
- fractures to his hands, arms, feet, ankles and legs
- amputation of his right foot
- post traumatic stress disorder, and
- cognitive defects.
His left foot also required skin grafts.
After being run over, he spent more than two months in the hospital.
He continues his outpatient recovery at home but can’t care for himself without assistance. At the time of his trial (more about that coming up), Simmons could walk with a walker only 30 to 50 yards before needing a break.
Simmons’ doctors recommended he receive a custom powered wheelchair, a custom manual wheelchair and a wheelchair accessible van.
When he first went home, Simmons’ care was provided around-the-clock care by hired professionals. After about six weeks, Simmons’ wife took over 12 hours of nighttime duty and all weekend hours (108 hours per week at $10/hour, or $1,080).
A trial court decided Simmons was entitled to the wheelchairs and the van, and his wife should be paid for her time caring for her husband. The court also said Precast should pay for $36,555 in Simmons’ attorneys’ fees because of delays in reimbursing him for his medical expenses.
The company appealed parts of this order. Specifically, it didn’t think Simmons was entitled to the van and reimbursement for his attorneys’ fees, and it didn’t think his wife should be paid for his care.
The appeal went to the Supreme Court of Nebraska.
Is van an ‘appliance?’
Nebraska’s workers’ comp law says:
“The employer is liable for all reasonable medical, surgical, and hospital services … appliances, supplies … 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.”
The Nebraska Supreme Court noted that whether a wheelchair accessible van is an “appliance” under the state’s workers’ comp law was a question of “first impression.” In other words, no court in the state had ever decided that issue before Simmons’ case.
Although workers’ comp laws vary from state to state, courts in several other states have found a wheelchair accessible van qualified as an appliance (Iowa, North Dakota, Pennsylvania and West Virginia). In Michigan, modifications to a van to make it operable by an injured worker were ruled to be compensable.
Even though it hadn’t previously considered a case involving a wheelchair accessible van, the Nebraska Supreme Court had previously ruled home modifications for a man bound to a wheelchair could be expenses under the appliance or supplies categories.
Given testimony from his doctors, the court decided the accessible van is an appliance that would help restore Simmons’ health.
Does it matter that his wife is caregiver?
The Nebraska Supreme Court noted that in previous cases it held a person providing necessary medical services to a disabled worker need not be a doctor or nurse.
In Simmons’ case, the court wrote, “We find no relevant distinction between a spouse and a nonrelated third party, so long as the evidence supports compensability.”
The state’s highest court upheld the $1,080 weekly payment to Simmons’ wife for caring for her husband during nights and weekends.
As for attorney fees, Nebraska workers’ comp law says whenever the employer refuses payment or when the employer neglects to pay compensation for 30 days and proceedings are held before the compensation court, a “reasonable attorneys’ fee shall be allowed the employee.”
The court noted that in Simmons’ case, there had been significant delays in paying for his medical needs. At the time the petition was filed, Simmons had incurred $1.49 million in compensable medical expenses, but only about $25,000 had been paid.
Since the fees charged by Simmons’ attorneys were found to be reasonable, the court ordered the company to pay $36,555 for his lawyers’ time.
That meant the Nebraska Supreme Court upheld all the awards by the trial court in Simmons’ case.
If that $1.49 million in medical expenses got your attention, here’s something else to consider: That was the amount up to the time of the trial. The company will continue to pay, through its workers’ comp insurance, for Simmons’ care for years to come.
What do you think about the decision in this case? Let us know in the comments.
(Simmons v. Precast Haulers, Supreme Court of NE, No. S-13-848, 7/3/14)
