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Prior Injuries – Aggravation Versus Recurrence

by | Aug 20, 2012 | Cases, Legal, Workers' Compensation

I recently took this case to trial due to issues involving a prior low back condition. Many times an injured worker has preexisting conditions such sporadic low back pain and then suffers injury to the same low back area. Insurance companies frequently use this previous condition to deny a claim by stating the condition was “preexisting.” However preexisting conditions may be compensable if it can be shown that there has been an aggravation of that preexisting condition. This gets complicated for the injured worker and easy for the insurance companies.

If you face a situation such as this, it is important that you speak with an injury attorney as soon as possible to discuss your rights. Many times it is necessary for your treating doctor to review prior medical records and prepare a report.

In the case below, Target claimed that the injury in 2009 was a “recurrence” of a prior low back condition versus an “aggravation.” The Court ruled that the 2009 was an aggravation and therefore ordered Target to pay for the surgery and disability benefits.



ERIC VERA, Plaintiff, vs. TARGET CORPORATION, Defendant.


Plaintiff: Jeffrey F. Putnam
Law Offices of Jeffrey F. Putnam, PC
6790 Grover Street, Suite 250
Omaha, NE 68106-3612

Defendant: Jason A. Kidd
Engles, Ketcham, Olson & Keith, PC
1350 Woodmen Tower
1700 Farnam Street
Omaha, NE 68102-2002

This cause came on for hearing before the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on April 2, 2012, on the Petition of the plaintiff, Answer of the defendant and on the evidence, Judge Ronald L. Brown, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendant was represented by counsel. Testimony was taken, evidence adduced, and the cause submitted. The Court received Exhibits 1 through 22. The parties entered into stipulations as indicated on the record.


On August 6, 2009, the plaintiff was in the employ of the defendant as an associate in the meat/dairy/frozen foods departments, and while so employed and on said date and while engaged in the duties of his employment he suffered injuries to his low back as a result of an accident arising out of and in the course of his employment by the defendant when the plaintiff was lifting and moving crates of milk in the dairy cooler and experienced sharp pain in his low back with radicular symptoms. The plaintiff’s symptoms were diagnosed as a bilateral L5 pars defect with L5-S1 spondylolisthesis.


The defendant generally denied the allegations of plaintiff’s petition and affirmatively plead his claim was barred by the statute of limitations.


The evidence indicated that Mr. Vera originally injured his back December 15, 2002, while lifting boxes in a cooler at Target. He treated conservatively periodically with his family physician Dr. Mark Oberlies as the symptoms waxed and waned, but he continued his employment in a position which required repetitive bending and lifting. Mr. Vera testified he unloaded trucks four days each week which would contain 200 – 300 boxes of meat which weights 40 – 50 pounds per box and 80 crates of milk at 32 pounds per crate. The inventory was rotated daily to keep fresh product forward. Following the 2002 injury, plaintiff was seen by Dr. Oberlies for back symptoms once in 2002 and on one occasion in 2005. He reported back and leg pain on March 13, 2007, but on March 26, 2007, returned and reported “0 pain today” (E1, pp. 28-30). There were no follow-up visits for the remainder of 2007 or 2008. During March 2009, plaintiff fell on ice while goose hunting and cracked ribs but the clinical note indicated no complaints of back pain. Mr. Vera called into his physician to report back pain and request a prescription on August 6, 2009. During a follow-up office visit on September 17, 2009, the clinical note indicated, “this incident and onset 08 06 09 – works unloading” and noted leg pain with a recommendation for an MRI (E1, pp. 34-35).

The issue presented is whether plaintiff’s current symptoms represent a “recurrence” from the original 2002 injury or an “aggravation” attributed to unloading and lifting in August 2009. The parties acknowledge that a 2002 accident is barred by the statute of limitations as a two year gap in the payment of prescription or medical costs occurred between 2002 and 2009. The voluntary payment of benefits thereafter cannot revive a barred claim. Fenster v. Clark Bros. Sanitation, 235 Neb. 336, 455 N.W.2d 169 (1990). The history of Mr. Vera’s back symptoms presents the classic recurrence versus aggravation scenario, but the Court finds the facts weight toward a determination that he suffered an aggravation of the pre-existing condition. Mr. Vera continued his same employment from 2002 through 2009 which required unloading heavy inventory. There is no evidence that after 2002 any physician assigned permanent physical restrictions. There are at least two periods in excess of a year when he had no complaints regarding his back symptoms even though he was at his physician’s office for treatment of other health concerns. Importantly, after being evaluated on March 13, 2007, for back and leg pain he returned March 26, 2007, reported “0 pain today” and resumed his work duties until August 6, 2009, eighteen (18) months later. After a course of physical therapy and injections, Dr. Bradley Bowdino performed surgery January 19, 2012. Dr. Bowdino opined the patient’s pars fractures were a long standing condition, dating back at least to 2002, perhaps congenital, but while a non-symptomatic pars defect is not a surgical condition, that condition, made symptomatic by repetitive bending and lifting at work, is a surgical condition (E8). Mr. Vera’s history of a pre-existing back condition, return to work in the same or similar employment without restrictions for an extended period (18 months) and then a new accident causing disabling symptoms taking him off work and requiring surgery is a scenario litigated in our Court every month and is a compensable accident. See Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987). The medical causation opinions are at Exhibits 8 and 9. Neither Dr. Oberlies nor Dr. Bowdino have opined plaintiff has reached maximum medical improvement. Dr. Bowdino’s clinical notes indicate he remains under continuing care postsurgery of January 19, 2012 (E3). Based upon the testimony of plaintiff and the records of Drs. Oberlies and Bowdino, the Court finds plaintiff was temporarily totally disabled from and after March 21, 2011, through the date of trial and for so long thereafter as he shall remain so and further order of the Court (E1, p. 57) (E9). Mr. Vera’s average weekly wage was $470.23 which entitles him to $313.49 per week for temporary indemnity. The parties stipulated the plaintiff’s average weekly wage for permanent indemnity was $569.60. Defendant is entitled to credit for indemnity paid.


The defendant shall pay medical expenses on behalf of the plaintiff as follows:

Midwest Neurosurgery
Alegent Lakeside
Radiology Consultants
Internal Medicine Physicians
Reimbursement to Vera
Coventry Subrogation
UHC Subrogation
Prescription Reimbursement

Defendant shall pay future medical expenses reasonably necessary for evaluation and treatment of plaintiff’s low back injury. Defendant is entitled to credit for medical expenses paid. Inasmuch as Mr. Putnam has recovered the subrogation interest of Coventry and United Health Care he is entitled to a reasonable attorney’s fee.


The Court makes no finding regarding permanent loss of earning power or entitlement to vocational rehabilitation services, if any, as plaintiff has not reached maximum medical improvement.


1. That defendant pay indemnity and future indemnity as provided in paragraph III.

2. That defendant pay medical expenses and future medical expenses as provided in paragraph IV.

Dated at Lincoln, Lancaster County, Nebraska, on this 5th day of July, 2012.

/s/Ronald L. Brown