Speculative “May Have Lived Longer” Testimony Is Insufficient to Prove Workers’ Compensation Death Causation When a Work Injury Delays Cancer Treatment

1. Introduction

In Hastreiter v. Foltz Brothers, Inc., 321 Neb. 469 (May 22, 2026), the Nebraska Supreme Court reviewed a denial of workers’ compensation death benefits sought by Kristine Hastreiter following the death of her husband, Thomas Hastreiter. Thomas had metastatic urothelial carcinoma, continued working, then sustained a compensable work-related hip injury requiring surgery. Complications and infection allegedly delayed recommended immunotherapy for his cancer. Thomas died roughly 2½ months later, and his death certificate listed progressive metastatic cancer as the immediate cause, noting delayed treatment due to hip complications as a contributing condition.

The central dispute was causation: whether the work injury, by delaying cancer treatment, proximately caused Thomas’ death for purposes of statutory death benefits under Nebraska workers’ compensation law. The Workers’ Compensation Court denied death benefits but awarded temporary total disability benefits and related expenses for the hip injury period. The Supreme Court affirmed.

2. Summary of the Opinion

The Nebraska Supreme Court affirmed the denial of death benefits. The court assumed—without deciding—that a claimant might, in theory, pursue death benefits on a “delayed treatment/lost life extension” theory. Even under that assumption, Kristine failed to prove, by a preponderance of the evidence, that Thomas would have lived longer had he received immunotherapy. The medical opinions relied upon used speculative language (“may,” “might,” “possible,” “assuming”), and the compensation court, as fact finder, was not required to credit survival estimates that did not persuasively establish the necessary causal link.

3. Analysis

3.1. Precedents Cited

Prinz v. Omaha Operations, 317 Neb. 744, 11 N.W.3d 641 (2024)

  • Standard of review and deference to fact finding: The court relied on Prinz for the familiar limits on appellate review under Neb. Rev. Stat. § 48-185: reversal is permitted only for excess of powers, fraud, lack of sufficient competent evidence, or findings that do not support the award. It also reiterated that compensation court fact findings function like a jury verdict and are not disturbed unless “clearly wrong.”
  • Medical causation proof and “definiteness” rule: The court used Prinz to restate that when the nature/effect of an injury is not plainly apparent, causation generally must be shown by expert medical testimony, and testimony framed in “could,” “may,” or “possibly” lacks the definiteness required to support an award.
  • Fact finder’s role with experts: Prinz supported the proposition that the compensation court determines which experts to believe.

Rosemann v. County of Sarpy, 237 Neb. 252, 466 N.W.2d 59 (1991)

  • The court used Rosemann to anchor the governing burden for death claims: a claimant must prove by a preponderance that employment proximately caused an injury resulting in death compensable under the Nebraska Workers’ Compensation Act.

Edmonds v. IBP, inc., 239 Neb. 899, 479 N.W.2d 754 (1992)

  • Edmonds was invoked to reinforce that expert medical opinions phrased in speculative terms (“may,” “possibly,” “appears”) do not meet the level of definiteness required for compensation awards. The compensation court cited Edmonds in rejecting the proffered life-prolongation opinions as too hedged.

Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965)

  • Welke was used to address Kristine’s argument that the compensation court applied an improper “guarantee” or absolute-certainty standard. The Supreme Court agreed with Welke’s principle (no need for absolute certainty) but concluded the compensation court did not actually impose a heightened standard.

Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991)

  • The court cited Yager for the important evidentiary point that the compensation court may reject even “unrefuted” expert medical testimony. That principle mattered here because Kristine argued the survival-estimate evidence should have compelled a finding that treatment would have extended life.

Spangler v. State, 233 Neb. 790, 448 N.W.2d 145 (1989)

  • Kristine invoked Spangler to argue undisputed expert testimony was binding. The Supreme Court clarified that Spangler supports the opposite: the compensation court is not required to take expert opinions on causal connection as binding.

Mann v. City of Omaha, 211 Neb. 583, 319 N.W.2d 454 (1982)

  • Mann was treated as creating, at most, a narrow exception: the compensation court may be bound to credit undisputed medical testimony only where it is based on firsthand knowledge, is credible, and has no demonstrable foundational weaknesses. The court held the oncology survival estimates here did not meet that “high bar.”

City of Omaha v. Professional Firefighters Assn., 309 Neb. 918, 963 N.W.2d 1 (2021)

  • This precedent disposed of Kristine’s waiting-time penalties/attorney-fee assignment: errors assigned but not argued are not addressed.

Larson Treatise and “First Impression” Framing

  • The compensation court referenced Larson’s Workers’ Compensation Law § 9.02 (2025) and cases discussed there recognizing compensability where work injury causes cancer to grow/spread and thereby “hastens” death. It distinguished those authorities because no evidence showed the hip injury accelerated cancer growth/spread.
  • The Supreme Court did not endorse or reject the compensation court’s “hastening vs. lost opportunity to prolong life” distinction; it avoided the issue by deciding the case on proof (causation evidence) rather than on the viability of the theory.

3.2. Legal Reasoning

(a) The court narrowed the decision to proof rather than announcing a broad rule on “delayed treatment” death claims

The opinion is methodologically cautious. It acknowledges the compensation court believed the “delayed immunotherapy” theory was a Nebraska issue of first impression, but the Supreme Court declined to decide whether that theory is legally cognizable. Instead, it assumed arguendo that it is and held Kristine still failed because she did not prove the necessary causal fact: that treatment would have extended Thomas’ life.

(b) The court reaffirmed the “definiteness” requirement for medical causation opinions

The court applied the established Nebraska workers’ compensation evidentiary rule: expert testimony that merely indicates something could happen or may be true lacks the definiteness to carry the claimant’s burden. This was outcome-determinative because the key medical opinions—particularly Dr. Renno’s and portions of Dr. Teply’s and Dr. LaHolt’s—were couched in conditional and speculative terms.

(c) The court treated “survival models” and “median survival” estimates as non-compelling without a firm causation opinion tied to probability

A notable evidentiary nuance is the court’s handling of Dr. Teply’s letter. Dr. Teply confirmed a question stating Thomas “might” have been expected to live 3.8–6 months with treatment and discussed “median survival” estimates from statistical models. The court found it “not obvious” this amounted to an opinion, to a reasonable degree of medical certainty or probability, that Thomas would have lived longer with treatment. The court emphasized that responding “Correct” to a question framed in “might” still reads as “may,” and that “would have estimated” can stop short of a probability conclusion about the individual patient.

(d) Deference to the compensation court’s credibility determinations—rejecting even undisputed expert evidence

Even if Dr. Teply’s letter could be read as sufficiently definite, the Supreme Court held the compensation court could still decline to credit it. The court underscored the trier-of-fact prerogative: determining causation is ordinarily for the fact finder, which selects which expert testimony (if any) to accept. By analogizing to Yager and clarifying Spangler, the opinion confirms that the “undisputed” character of expert testimony does not make it binding, except perhaps in the narrow Mann scenario of truly unassailable, well-founded testimony.

(e) No heightened “guarantee” standard—just a sufficiency and definiteness assessment

The court rejected Kristine’s argument that the compensation court demanded a “guarantee” that immunotherapy would have extended life. It interpreted the “no guarantee” phrase as colloquial, not a doctrinal shift from preponderance to certainty, and concluded the compensation court applied the correct burden while assessing whether the expert evidence was definite and persuasive enough.

3.3. Impact

  • High evidentiary hurdle for “lost chance to prolong life” theories: While the court did not foreclose such claims, it signals that to succeed a claimant likely needs expert testimony framed in probabilistic terms tied to the individual patient (not merely population medians) and expressed with sufficient definiteness to establish that treatment would more likely than not have extended life.
  • Survival statistics alone may not carry causation: The discussion suggests that median survival figures and generalized study outcomes may be treated as insufficiently individualized or too inferential unless the expert expressly connects them to the claimant’s burden of proof (and does so definitively).
  • Reinforcement of fact-finder discretion with expert letters: Because the case was tried largely via written expert letters under Workers' Comp. Ct. R. of Proc. 10(A) (2024), the opinion implicitly warns litigants that carefully drafted reports matter: hedging language may be dispositive, and the compensation court retains broad authority to accept or reject even unopposed opinions.
  • Strategic implications for future litigation: Claimants pursuing death benefits where a work injury delays treatment should anticipate (1) a defense focused on the definiteness of language (“may/might/possible”), and (2) arguments that the trier of fact may reject statistical estimates as insufficiently persuasive. Defendants, in turn, gain a reinforced basis to argue that such claims are speculative and that expert opinions must rise above conditional phrasing.

4. Complex Concepts Simplified

Proximate cause (in workers’ compensation death claims)
The claimant must show the work-related injury contributed to the death in a legally meaningful way—i.e., it was a cause that, in a natural and continuous sequence, produced the death. In this case, the alleged causal mechanism was indirect: the hip injury delayed cancer treatment, and the delay allegedly shortened lifespan.
Preponderance of the evidence
“More likely than not.” The claimant does not need certainty, but must show the causal proposition is probably true.
“Reasonable medical certainty/probability” and the “no magic words” rule
Nebraska does not require experts to use the exact phrase “reasonable medical certainty.” But the opinion must still be definite enough to establish the causal link. A report that repeatedly uses “may,” “might,” “possibly,” or “assuming” can fail because it does not express probability.
“Definiteness” requirement
A rule of evidentiary sufficiency in Nebraska workers’ compensation: speculative medical testimony generally cannot support an award.
“Hastening death” vs. “lost opportunity to prolong life”
The compensation court suggested a conceptual difference between (1) an injury that accelerates a fatal condition (hastening death) and (2) an injury that prevents treatment that might have extended life. The Supreme Court did not decide whether that distinction matters legally; it resolved the case because the evidence did not prove life would have been extended.
Role of the compensation court as trier of fact
The compensation court decides which expert opinions to believe and how much weight to give them. On appeal, the Supreme Court largely defers to those determinations unless clearly wrong.

5. Conclusion

Hastreiter is a proof-centered decision with practical precedential force. The Nebraska Supreme Court avoided deciding whether workers’ compensation death benefits can be awarded on a “treatment delayed, life shortened” theory, but it held that even assuming such a theory is viable, the claimant must prove—through sufficiently definite expert medical testimony—that the delayed treatment would have extended life. Opinions framed in “may,” “might,” “possible,” or contingent “assuming” terms are vulnerable, and the compensation court retains broad discretion to reject expert survival estimates that do not persuasively establish probability in the individual case. The result is a reinforced evidentiary barrier to death claims predicated on probabilistic life-extension scenarios rather than direct acceleration of disease.