Background
Thomas Hastreiter was a truckdriver and farm laborer for Foltz Brothers, Inc., who had been diagnosed with urothelial carcinoma in December 2021 and continued working after his diagnosis. On September 26, 2022, he suffered a workplace hip injury. Days later, while hospitalized, his oncologist confirmed his cancer had metastasized and was “incurable but treatable,” recommending immunotherapy once Thomas recovered from the hip surgery. Thomas never received that treatment: post-surgical complications led to an infection, and he died on December 14, 2022. His death certificate listed progressive metastatic cancer as the immediate cause of death and noted that complications from the hip injury had delayed treatment, “resulting in progression of cancer.”
Thomas’s widow, Kristine, filed a workers’ compensation claim against Foltz Brothers and its insurer, seeking statutory death benefits under Neb. Rev. Stat. § 48-122. The parties stipulated that the hip injury arose out of and in the course of employment. The sole disputed issue was whether the hip injury—by preventing Thomas from receiving immunotherapy—contributed to his death. Three expert letters were submitted: Thomas’s oncologist Dr. Renno opined that earlier treatment “may have made a difference in prolonging” Thomas’s life; the employer’s expert oncologist Dr. Teply concluded Thomas died from the natural progression of his cancer but acknowledged he “may have lived longer” with treatment; and physiatrist Dr. LaHolt agreed with that characterization.
The Nebraska Workers’ Compensation Court denied death benefits, finding that the evidence did not support a conclusion that the work injury caused Thomas’s death, and that the expert opinions on life extension were insufficiently definite under Nebraska law. The court did award temporary total disability benefits, medical expenses, waiting-time penalties, interest, and $10,000 in attorney fees related to the hip injury itself. Kristine appealed the denial of death benefits.
The Court’s Holding
The Nebraska Supreme Court affirmed, holding that the compensation court did not err in denying death benefits because Kristine failed to establish by a preponderance of the evidence that the work injury proximately caused Thomas’s death. The Court declined to resolve the novel legal question of whether a work injury that prevents a terminally ill worker from receiving life-extending treatment can form a valid theory of recovery under Nebraska workers’ compensation law. Instead, it ruled on the narrower evidentiary ground: even assuming such a theory is cognizable, Kristine’s expert evidence was legally insufficient to prove that Thomas would have lived longer had he received the recommended immunotherapy.
The Court found that Dr. Renno’s opinion was fatally hedged—couched in terms of “possible,” “may,” and “assuming” the treatment was even effective—falling squarely within the rule that expert testimony based on “could,” “may,” or “possibly” lacks the definiteness required to support a workers’ compensation award. Dr. Teply’s survival-model estimates, while more specific, were framed in response to a question asking him to confirm whether Thomas “might” have lived longer, and the Court found that “might” is substantively indistinguishable from “may.” Dr. LaHolt independently provided little foundation beyond agreeing with Dr. Teply’s equivocal formulation.
The Court further held that the compensation court was not obligated to credit even undisputed expert testimony, reaffirming that it is the trier of fact’s prerogative to decline to believe expert witnesses. Under the demanding standard drawn from prior case law, expert testimony is binding on the compensation court only in the rare circumstance where it is not only undisputed but so unassailable as to admit no reasonable rejection—a bar none of the three expert letters cleared.
Key Takeaways
- Expert medical causation opinions phrased in terms of “may,” “possibly,” “could,” or “might” are legally insufficient to support a workers’ compensation award in Nebraska, regardless of how specific the underlying statistical estimates may be.
- The Nebraska Supreme Court expressly left open whether a work injury that prevents treatment of a preexisting terminal illness—thereby shortening life rather than causing or accelerating disease—can support a death-benefits claim under Nebraska workers’ compensation law.
- The Workers’ Compensation Court, as trier of fact, retains broad discretion to reject expert testimony; it is bound to credit undisputed expert medical evidence only when that testimony is unassailable and entirely free of demonstrable weaknesses.
- Errors assigned on appeal but not argued in the brief will be disregarded; Kristine’s challenge to the adequacy of waiting-time penalties and attorney fees was abandoned for lack of briefing.
Why It Matters
This decision highlights the significant evidentiary burden facing workers’ compensation claimants who argue that a work injury shortened a terminally ill employee’s life by preventing access to treatment. Attorneys bringing such claims must secure expert testimony that goes beyond statistical survival models or qualified projections—the expert must affirmatively opine, to a reasonable degree of medical certainty or probability, that the claimant would have lived longer with treatment. Hedged language, even when paired with specific numerical estimates, will not survive scrutiny in Nebraska’s compensation courts.
The case also signals unresolved legal territory in Nebraska. Because the Court decided the matter on causation grounds alone, the viability of a “lost chance of life extension” theory in Nebraska workers’ compensation remains an open question. Future litigants presenting stronger expert evidence—opinions stated to a reasonable degree of medical certainty—may find a more receptive forum for testing that theory directly.