IN THE NEBRASKA WORKERS’ COMPENSATION COURT

APPEARANCES:

Plaintiff: Jeffrey F. Putnam

Attorney at Law

Law Offices of Jeffrey F. Putnam, P.C., L.L.O.

6790 Grover St, Suite 250

Omaha, NE 68106

Defendant: Thomas D. Wulff

Thomas J. Freeman

Attorneys at Law

Wulff & Freeman LLC

209 South 19th Street, #300

Omaha, NE 68102-1705

This cause came on for hearing before the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on August 29, 2011, 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 9. The parties entered into stipulations as indicated on the record.

I.

On October 4, 2007, the plaintiff was in the employ of the defendant as a team leader, and while so employed and on said date and while engaged in the duties of her employment she suffered injuries to her right arm as a result of an accident arising out of and in the course of her employment by the defendant when the plaintiff and other co-employees were at an off-site “team building” function at Diggs Volleyball Complex. Plaintiff was playing sand volleyball. While going for a ball she fell, her arm became entangled in the net and she hyper-rotated her arm and shoulder. Her injury was diagnosed as a comminuted right proximal humerus fracture, complete tear of the right rotator cuff and other bony disruptions of the glenohumeral joint. The causation opinions are within Exhibits 2 and 4.

II.

The plaintiff is entitled to benefits as provided under the Nebraska Workers’ Compensation Act.

III.

At the time of said accident and injury, the plaintiff was receiving an average weekly wage of $1,158 being sufficient to entitle her to benefits of $617 for temporary indemnity. The parties stipulated there was no unpaid temporary indemnity due through the date of trial. Dr. Charles Rosipal was the orthopedic surgeon who repaired the fracture with a locking plate and examined the plaintiff on several follow-up office visits. Dr. Rosipal opined Ms. Sheard experienced a 28 percent member impairment and was at risk for future development of secondary avascular necrosis. His opinions are set forth in a report of July 8, 2011 (E4). Defendant obtained a report of June 10, 2008, from Dr. Ian Crabb which provided a 12 percent member impairment but Dr. Crabb did not examine plaintiff and had only records through March 24, 2008 (E9). Defendant paid permanent indemnity based upon the lower impairment rating (E8). The Court is persuaded by the opinion of Dr. Rosipal, who evaluated the patient pre and post surgery and provided all aftercare. He had multiple occasions to evaluate the patient’s progress during physical therapy and discuss her symptoms and progress. The Court finds Ms. Sheard experienced a 28 percent permanent functional impairment of the right upper extremity which entitled her to permanent indemnity of $617 per week for 63 weeks from and after April 7, 2008. Defendant is entitled to credit for indemnity paid.

IV.

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

Defendant shall pay future medical expenses reasonably necessary for evaluation and treatment of plaintiff’s arm/shoulder injury, including but not limited to the procedure presently recommended by Dr. Rosipal.

Ms. Sheard experienced continuing symptoms in her right arm and shoulder for which she returned to Dr. Rosipal, who performed an injection for both diagnostic and therapeutic purposes after an ultrasound demonstrated increased fluid in the intertubercular groove. Dr. Rosipal now recommends an arthroscopic biceps tenotomy versus tenodesis (E3, p. 22). A rotator cuff repair may be necessary but he cannot make that determination until he is able to visualize the rotator cuff during the arthroscopy. While defendant obtained a contrary opinion, the Court relies upon the opinion of Dr. Rosipal regarding the necessity for future medical care.

V.

Further, vocational rehabilitation is unnecessary as plaintiff has continued accommodated employment with defendant.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that:

1. Defendant pay indemnity as provided in paragraph III.

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

Dated at Lincoln, Lancaster County, Nebraska, on this 28th day of October, 2011.

es

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing Award was sent by ordinary United States mail, first class postage prepaid, on this 28thday of October, 2011, addressed as shown below, to the following:

Under Nebraska Workers’ Compensation Law, injured workers are entitled to a vocational rehabilitation assessment if he or she cannot return to “suitable employment” as a result of a work injury.   Our office has represented numerous clients through the vocational rehabilitation process.  Plans must be approved by the employee, employer and Workers’ Compensation Court.  A plan can range from job placement, to on-the-job training, to schooling.  Benefits include temporary total disability benefits, reimbursement for related mileage and if necessary, tuition and other expenses related to schooling – even out-of-town housing.  Due to the complex nature of the development and approval process, the sooner you discuss your particular legal claim with a work injury attorney, the better.

Below is an example of a litigated claim involving denied vocational rehabilitation.  The plaintiff experienced a work-related injury that left her with physical restrictions and a loss of earning power – entitling her to a vocational rehabilitation plan. The employer denied the plan and it was necessary to litigate the issue. The Court ordered a vocational rehabilitation plan approved to provide Ms. Stanfill with formal training in order to return to suitable future employment.

For more information regarding vocational rehabilitation, check out the following link:  VOCATIONAL REHABILITATION

Stanfill v. Nash Finch Company

IN THE NEBRASKA WORKERS’ COMPENSATION COURT

KATHLEEN K. STANFILL, Plaintiff, vs. NASH-FINCH COMPANY, Defendant, vs. STATE OF NEBRASKA, WORKERS’ COMPENSATION TRUST FUND, Intervenor.

DOC: 203 NO: 1358

ORDER APPROVING VOCATIONAL REHABILITATION PLAN

This matter came before the Court on September 12, 2006, on the pretrial order of August 30, 2006, and on the objection of the intervenor to the proposed vocational rehabilitation plan. Evidence was taken and the Court, being fully advised in the premises, finds as follows:

I.

An award was previously entered in this cause on May 28, 2004, finding that Kathleen Stanfill had suffered injury by accident arising out of and in the course of her employment with Nash-Finch Company. The Court found at that time that the plaintiff had not yet achieved maximum medical improvement. By stipulation among all present parties, the Court finds that plaintiff has now achieved maximum medical improvement and has a 30 percent permanent functional impairment and/or loss of earning power.

II.

At issue for the Court to determine in this present hearing is the plaintiff’s entitlement to the vocational rehabilitation plan that has been proposed by Mr. Utley. The parties have stipulated that David Utley was the counselor agreed upon for the purpose of evaluating the plaintiff’s entitlement to vocational rehabilitation services. The Court has read Mr. Utley’s justification for the plan proposed and is persuaded that the plaintiff will require formal training given her physical restrictions, scope of her prior experience and the unavailability of employment without formal training at a wage level that would restore the plaintiff to suitable employment.

III.

The plaintiff argues that the plan developed by Mr. Utley is imbued with a rebuttable presumption that it is an appropriate form of vocational rehabilitation. However, one of the requisites for such a rebuttable presumption is that the plan be approved by a vocational rehabilitation specialist of the compensation court. It is precisely because a vocational rehabilitation specialist of the compensation court did not approve Mr. Utley’s plan that we are conducting the present hearing. It is thus obvious that there is no presumption that arises.

IV.

However, the Court has reviewed the e-mail sent to Mr. Utley by Rachel Mulcahy, the Court’s vocational rehabilitation specialist, after Ms. Mulcahy’s receipt of the plan (E21); has read Mr. Utley’s reply thereto which is Exhibit 22; has read the further letter of Ms. Mulchay to Mr. Utley which is Exhibit 25 and has read Exhibit 23, Mr. Utley’s response. The Court is persuaded that Mr. Utley has complied with the rules of the Court and has established the need for formal training and specifically the training set out in Exhibit 21. The Court finds that such plan should be approved.

IT IS SO ORDERED.

Dated at Lincoln, Lancaster County, Nebraska, on this 15th day of September, 2006.

NEBRASKA WORKERS’ COMPENSATION COURT

/s/Michael P. Cavel
JUDGE

The good news is that the Workers’ Compensation Court can make a determination if a worker is an employee or an independent contractor.  The Courts look at the following factors:

(1) the extent of control which, by the agreement, the employer may exercise over the details of the work

(2) whether the worker is engaged in a distinct occupation or business

(3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision

(4) the skill required in the particular occupation

(5) whether the employer or the worker supplies the instruments, tools, and the place of work for the person doing the work

(6) the length of time for which the worker is engaged

(7) the method of payment, whether by the time or by the job

(8) whether the work is part of the regular business of the employer

(9) whether the parties believe they are creating an agency relationship

(10) whether the employer is or is not in business

One of the most important factors from the above is extent of control by the employer over the worker.    Who sets hours? Is the worker supervised by the employer?  Lots of questions here…

Even if a worker previously “agreed” to work as an independent contractor contract, a judge on the Nebraska Workers’ Compensation Court may find that, based upon the factors above, find an employer/employee relationship exists.

If you have suffered an injury and your employer claims you are an independent contractor, you should call a workers compensation injury attorney immediately. DO NOT give a recorded statement without speaking to an attorney.  DO NOT sign anything.  Call or email and discuss your situation.  Initial consultation is always no charge and no further obligation.

By Daniel A. Allen.  I’ve worked with a few clients who wanted prenuptial agreements executed before marrying.  Some think those agreements smell of mistrust and suspicion.  Sometimes, that’s true.  Sometimes, it’s not.

The few I’ve done related to business ownership.  Wilma owns a business with other family members and wants to marry Fred.  They don’t execute a prenup.  On the honeymoon, The Bus hits Wilma.  (The Bus is looking for all of us–just so you know.)

If Wilma and Fred don’t have a prenup limiting Fred’s rights to ownership of the business, and if the business doesn’t have a Shareholder Agreement granting a right-of-first refusal to the company or remaining shareholders allowing it or them to purchase Wilma’s shares upon her death, the other shareholders may be stuck owning a business with Fred (who gets his dead new wife’s shares)–a guy they may or may not really like or know.

A key to a prenup is full disclosure of your balance sheet.  Without said disclosure, a judge might rule that the prenup is unenforceable.  So just remember that each party should have separate legal counsel, fully disclosure her or his balance sheet, and not coerce the other party to execute the prenup.

Now, some folks in Wisconsin see this a little differently.  They’re considering legislation that would make prenups ironclad–even if coercion or incomplete disclosure occurs.  Read here if you wish …

See Dan Allen’s blog at daallen//wordpress.com

Stella Liebeck of Albuquerque, New Mexico, purchased McDonalds’ coffee at a drive-thru in February 1992. She was a passenger in her grandson’s car (which was stopped) when she took the lid off to add cream and sugar to the coffee. She spilled the coffee on her lap. Due to the high temperature of the coffee, Ms. Liebeck suffered third degree burns over 6% of her body including her inner thighs, groin, buttocks and genital area. She underwent painful skins grafts and spent 8 days in the hospital. She asked McDonald’s to help her pay for medical bills associated with the burns (approximately $20,000.00) McDonald’s offered $800.00. On to trial.

At trial the jury heard that McDonald’s maintained its coffee at 185 degrees and this temperature was enforced by McDonald’s quality assurance. However the same quality assurance admitted that burns will occur with temperatures over 140 degrees. McDonald’s also admitted that it had notice of over 700 claims for prior burns. Some of them third degree burns.. Unbelievably the quality assurance testified at trial that McDonald’s had no intention of lowering its temperatures. Evidence also showed that at this high temperature it would take only two to seven seconds of contact with the skin to produce third degree burns.

The jury awarded Liebeck $200,000 in compensatory damages but reduced it to $160,000 after the jury decided that Ms. Liebeck was 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages. This is the amount that McDonald’s grossed for just two days coffee receipts. The judge then reduced the punitive aspect of the award to $480,000.

The case was appealed and eventually settled out of court for an undisclosed amount. Unfortunately a confidentiality clause in the settlement prevents Ms. Leibeck from speaking about the case. But not McDonald’s.

Susan Saladoff, a plaintiff attorney, just finished a documentary about the McDonald’s case and how it has affected the myth of “tort reform.” Tort reform is the slow erosion of the 7th Amendment to the Constitution. The right to a trial by jury. Corporations and other big interests keep eroding at this right and YOUR access to the court system and YOUR right to recover damages.

Check out her interview on the Colbert Report:

http://www.colbertnation.com/the-colbert-report-videos/400684/october-25-2011/susan-saladoff

There is a reason why they do this.  Companies and the insurance industry have scouting reports on physicians in your area and frequently steer injured employees to certain doctors.   Our experience is that these doctors generally are more conservative in their approach to treatment and when determining any permanent injuries.  The saves the insurance company/employer money at YOUR expense.

In Nebraska, this is not the law. In fact, the Nebraska Workers’ Compensation Court created a form to help injured employees understand choice of physician laws.   Your employer should give you a copy of this Under section B, always choose your family physician.  Never waive this right.  If your employer or insurance adjuster refuses to give you this form or demands that you see your doctor – call or email us right away.

Bottom line, who do you want making medical decisions for you – your open family physician.  It really is your choice.

Hormel Foods Corporation denied medical and indemnity benefits for Mr. Rodriguez after he suffered a fractured neck while moving pallets at Hormel. The case went to trial and the judge ordered Hormel to reimburse Mr. Rodriguez for medical expenses incurred, paid for lost time during surgery and compensated for his permanent injury.

IN THE NEBRASKA WORKERS’ COMPENSATION COURT

JOSE A. RODRIGUEZ,

Plaintiff,

vs. HORMEL FOODS CORPORATION,

Defendant.

DOC: 210 NO:1298

AWARD

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

Defendant: Jenny L. Panko
Attorney at Law
Baylor, Evnen, Curtiss, Grimit & Witt
Wells Fargo Center
1248 ‘O’ Street, Suite 600
Lincoln, NE 68508

This cause came on for hearing before the Nebraska Workers’ Compensation Court at Fremont, Dodge County, Nebraska, on May 10, 2011, upon 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 26. The parties entered into stipulations as indicated on the record.

I.

On April 13, 2010, the plaintiff was in the employ of the defendant as a laborer, and while so employed and on said date and while engaged in the duties of his employment he suffered injuries to his neck as a result of an accident arising out of and in the course of his employment by the defendant when the plaintiff was pulling pallets and boxes and felt a pop or crack in his neck which was later diagnosed as a fracture of the C6 spinous process with complete subluxation (E4, p. 3). The medical causation opinions are at Exhibit 4, pages 4, 12 and 14 and Exhibit 6, pages 1 and 5.

II.

The plaintiff is entitled to benefits as provided under the Nebraska Workers’ Compensation Act.

III.

At the time of said accident and injury, the plaintiff was receiving an average weekly wage of $600.46 per week being sufficient to entitle him to benefits of $400.31 per week from April 14, 2010, through November 14, 2010, a period of 30 5/7 weeks for temporary total disability and thereafter and in addition thereto the sum of $80.06 per week for the remainder of 300 weeks for a 20 percent permanent loss of earning power. The parties contested several issues including the occurrence of an accident. Mr. Rodriguez indicated on the date of accident he advised his foreman he “couldn’t breathe”, had pain in his left shoulder/neck/anterior chest, went to the nurse’s station and went home early. His supervisor acknowledged that plaintiff reported trouble breathing but had no conversation about an injury at work. Company records do not confirm he was treated at the company infirmary that date. Mr. Rodriguez went to the Fremont Area Medical Center emergency room the evening of April 14, 2010. The attending physician diagnosed “chestwall/cervical radiculopathy”, restricted use of the left upper extremity for 4 to 5 days and commented regarding “cervical radiculopathy symptoms – .”, the remaining comments being illegible (E2, p. 8). He was referred to Dr. David Buck, who he had previously seen, and was examined April 20, 2010, for neck and shoulder symptoms, but “cannot recall any injury.” (E3, p. 1). However, x-rays obtained by Dr. Buck disclosed the cervical spinous fracture. He was referred to Nebraska Spine Center and was seen there May 20, 2010. The history in part is as follows: “The injury occurred while working at place of employment, no clearly defined precipitating factor for the pain. He was at work pulling boxes when he felt a pop/snap in his neck. Did not have any injury.” (E4, p. 1). The history frankly is somewhat confusing. In one instance he seems to clearly indicate an accident at work but in the next, no injury. Part of his may be attributable to the fact that there is a language barrier. Plaintiff speaks and understands some English but cannot read or write the language. English is his second language. The Court notes that when seen at Nebraska Spine Center, a family member was interpreting. Dr. Buck’s note of April 20, 2010, does not mention an interpreter. Dr. Burd clearly and consistently believed the injury was causally related to an accident and indicated so in his chart and reports. Defendant also denied any notice of an alleged injury at work until receiving Mr. Putnam’s letter of representation dated June 2, 2010. However, review of the records indicates Dr. Buck copied Medcor (a contractor which operates Hormel’s infirmary) with his clinical note of April 20, 2010 (E3, p. 2). Dr. Burd’s clinical note of May 20, 2010, indicated he would call Bob Ball to discuss his findings. His clinical note of May 20, 2010, was copied to Bob Ball (E4, p. 4). Dr. Burd’s telephonic nurse’s note of May 25, 2010, indicated “spoke to Bob Ball, Hormel. Patient keeps stating that this is a work comp injury, Bob stated that a claim was never filed.” (E4, p. 13). Further, Nebraska Spine’s initial consultation of May 20, 2010, indicated “**work comp has denied the claim.” (E4, p. 1). Obviously, a claim must be reported before it can be denied. Thus, it appears there were at least four occasions that the claim of an injury was reported to defendant or its agent before receipt of Mr. Putnam’s letter. Mr. Rodriguez has returned to work to his former position. He indicated he now pulls single boxes rather than two at a time. He experiences soreness and fatigue in his neck area now by the end of his shift. He takes over-the-counter medication for his symptoms. He does not believe he could return to some of the jobs in the plant he previously performed. His testimony was credible and when combined with the permanent impairment rating and considered in context with the criteria of Sidel v. Travelers Insurance Company, 205 Neb. 541, 288 N.W.2d 482 (1980), caused the Court to determine permanent loss of earning power as indicated.

IV.

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

* Fee schedule audit amounts approved by the court.  Mileage reimbursement to plaintiff of $158.50.  There was no sufficient evidence that plaintiff will require future medical care for the injury sustained April 3, 2010.

V.

Plaintiff has returned to suitable employment with defendant and is therefore not entitled to vocational rehabilitation services.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that:

1. Defendant pay indemnity and future indemnity as provided in paragraph III.
2. Defendant pay medical expenses as provided in paragraph IV.

Dated at Lincoln, Lancaster County, Nebraska, on this 20th day of May, 2011.
NEBRASKA WORKERS’ COMPENSATION COURT

/s/Ronald L. Brown
JUDGE

The plaintiff, an ironworker, experienced a work-related injury that resulted in a herniated disc in his spine. An initial trial concluded that his employer was exempt from continued medical expenses and disability benefits after termination of his employment. Further analysis revealed that he had failed to reach maximum medical improvement in his condition at the time of termination and would require further treatment. The decision was remanded, requiring a reconsideration of vocational rehabilitation and disability benefits.

Benson v. Casey Industrial and Argonaut Insurance

12 Neb.App. 396 (Neb.App. 2004)
674 N.W.2d 798
Melvin BENSON, appellant, v. CASEY INDUSTRIAL and Argonaut Insurance, appellees.
No. A-03-711.

Court of Appeals of Nebraska
February 17, 2004.

[674 N.W.2d 799]

Syllabus by the Court

• Workers’ Compensation: Appeal and Error. An appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.
• Workers’ Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers’ Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong.
• Workers’ Compensation: Appeal and Error. An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law.
• Workers’ Compensation: Judgments: Appeal and Error. The question of whether an injured employee has reached maximum medical improvement is one for the Workers’ Compensation Court as trier of fact, and its judgment may not be set aside on appeal where there is evidence sufficient to support it.

Jeffrey F. Putnam, of Inserra & Kelley, for appellant.
Ronald E. Frank, of Sodoro, Daly & Sodoro, Omaha, for appellees.

IRWIN, Chief Judge, and HANNON and CARLSON, Judges.

CARLSON, Judge.

Introduction

Melvin Benson appeals from an order of a review panel of the Nebraska Workers’ Compensation Court affirming the trial court’s order regarding Benson’s petition for damages he allegedly sustained while working for Casey Industrial (Casey) on January 15, 2001. The trial court found that Benson had reached maximum medical improvement (MMI), that Benson was no longer entitled to temporary benefits, and that Benson failed to suffer a permanent disability and loss of earning capacity. For the reasons set forth below, we reverse, and remand with directions.

Background

Benson began working for Casey on May 4, 2000, as a journeyman ironworker.

[674 N.W.2d 800] On January 15, 2001, Benson injured himself while working for Casey while attempting to drive bolt pins through holes in a steel column. Benson fell backward while swinging an “eight-pound beater” hammer and felt pain midway between his shoulders. Benson immediately reported his injury to his foreman and was told that it was probably just a muscle strain. Casey did place Benson on light duty, but was reluctant to send Benson to a doctor.

After the pain had continued, Benson saw a doctor on January 17, 2001, and was prescribed a muscle relaxant and a pain reliever. Subsequently, Benson continued on light duty at Casey, which duty consisted at first of mopping and cleaning and later of preparing bolts for other ironworkers to use. On approximately January 20, Casey laid Benson off. Benson then returned to his home in Arkansas. The record shows that Benson resided in Arkansas and traveled fairly extensively in his job with Casey.

Casey then offered Benson a position in North Carolina, where Benson returned to light duty. Benson then saw a doctor who prescribed physical therapy in addition to continuing Benson’s prescription medications. On June 6, 2001, that doctor referred Benson to Dr. Alfred L. Rhyne. Rhyne saw Benson for the first time on June 13, at which time Benson reported continued pain between his shoulder blades. An MRI of Benson’s thoracic spine showed a focal midline herniation at T4-5. Rhyne continued Benson’s prescription medications and restricted Benson’s lifting to a maximum of 15 pounds, while allowing Benson to work 4 hours per day for the following 2 weeks and then 6 hours per day thereafter.

On July 13, 2001, when Benson had returned to Rhyne and reported continued pain, Rhyne recommended physical therapy and restricted Benson to working 8 hours per day with maximum lifting of 15 pounds. In a subsequent report, Rhyne opined that Benson had not reached MMI as of July 13, but that Benson would reach MMI within the next 3 to 6 months. Rhyne conditioned Benson’s attainment of MMI on Benson’s completion of physical therapy.

The record shows that Benson continued with physical therapy until August 2, 2001, when Casey fired Benson for being tardy to work. Specifically, although there is evidence in the record that Benson was not improving and that it was “probabl[e]” that Benson’s physical therapist would discharge Benson back to Rhyne, as of August 2, when Casey fired Benson, Benson had remained in physical therapy per Rhyne’s plan of care. The record shows that Benson’s future physical therapy appointments were canceled only after Casey fired Benson and that Casey did not pay any more money, through its insurance carrier, Argonaut Insurance, or otherwise, to Benson after that time.

Following the termination of his employment, Benson moved back to Arkansas. Two weeks later, Benson went to the Mena Medical Center emergency room for his pain. Benson struggled to continue medical treatment because of Casey’s denial of further benefits. Benson was refused treatment by certain Arkansas physicians and had to pay some medical bills himself. The record shows that Benson also had difficulty obtaining prescriptions.

Benson did see a doctor at a clinic on November 19, 2001, who prescribed medication and later recommended that Benson attend a pain clinic. Benson also received physical therapy at the Mena Medical Center when Medicaid paid the bill. Physical [674 N.W.2d 801] therapy failed to alleviate Benson’s symptoms.

After the termination of his employment, Benson was unable to find a job despite applying for approximately 22 to 24 positions. Benson has returned to school to become more employable.

Trial was held on August 14, 2002. The parties stipulated that Benson had been employed by Casey at the time of the accident at issue and that Casey had paid Benson all temporary total and temporary partial disability benefits owed him from the date of the accident, January 15, 2001, until August 1 of the same year. The trial court determined that Benson had reached MMI no later than August 1 and denied Benson temporary total disability benefits after that date. The trial court also found that Benson had failed to present evidence that he was permanently injured. The trial court awarded Benson $500 in attorney fees, holding that no reasonable controversy existed as to whether Benson required medical care due to his employment-related injuries after July 31, 2001. Benson appealed, and the review panel affirmed the decision of the trial court except as to the trial court’s award of attorney fees to Benson. Benson now appeals to this court.

Assignments Of Error

On appeal, Benson argues that the trial court erred in making the following findings: (1) Benson reached MMI, (2) Benson is not entitled to temporary total disability benefits, (3) Benson is not entitled to permanent partial disability benefits, (4) Benson is not entitled to a loss of earning capacity, and (5) Benson is not entitled to vocational rehabilitation benefits.

Standard Of Review

An appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003).

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers’ Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Schwan’s Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002). An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).

Analysis

On appeal, Benson argues that the trial court erred in finding that Benson had reached MMI. The question of whether an injured employee has reached MMI is one for the Workers’ Compensation Court as trier of fact, and its judgment may not be set aside on appeal where there is evidence sufficient to support it. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

The only evidence in the record regarding whether Benson has reached MMI was the opinion of Rhyne, who in a July 23, 2002, report stated that Benson would have reached MMI within 3 to 6 [674 N.W.2d 802] months of the date he last saw Benson, or July 13, 2001. Rhyne cited Benson’s need for physical therapy as an impediment to finding that Benson had reached MMI. In its order, the trial court found that Benson had reached MMI no later than August 1, 2001, after finding that Benson “was discharged from physical therapy on or about July 31, 2001.” There is no evidence in the record to show that Benson had completed therapy or had been discharged from therapy as of that July 31.

Instead, the record shows that Benson was still in physical therapy per Rhyne’s plan of care as of August 2, 2001, the date when Casey fired Benson. The record shows that Benson’s future physical therapy appointments were canceled only after Casey fired Benson and that Casey did not pay any more money to Benson after that time. Clearly, Casey’s obligation to pay Benson further benefits did not cease upon Casey’s firing of Benson.

Given the evidence on this record, the trial court was clearly wrong in finding that Benson had reached MMI no later than August 1, 2001. Thus, we reverse the trial court’s finding in this regard and remand the cause to the review panel, which is to remand the cause to the trial court for a finding consistent with this opinion. Similarly, because the trial court based all its further findings on this finding of fact, we direct the court to vacate its resultant findings regarding Benson’s entitlement to temporary total disability benefits, permanent partial disability benefits, a loss of earning capacity, and vocational rehabilitation benefits and to reopen the question of Benson’s entitlement to attorney fees in regard to the question of a reasonable controversy. Given our finding that Benson has not reached MMI, we also direct the court to make new findings regarding Benson’s entitlement to temporary total disability benefits.

Conclusion

After reviewing the record, we find that the trial court was clearly wrong in finding that Benson reached MMI no later than August 1, 2001. Thus, we reverse that finding by the trial court, and we remand the cause to the review panel for further remand to the trial court with directions to vacate its resultant findings regarding Benson’s entitlement to temporary total disability benefits, permanent partial disability benefits, a loss of earning capacity, and vocational rehabilitation benefits. We also direct the trial court, on remand from the review panel, to reconsider Benson’s entitlement to attorney fees, if any, as they relate to the question of a reasonable controversy and to determine whether Benson is entitled to temporary total disability or temporary partial disability benefits because of the fact that the evidence fails to show that Benson has reached MMI.

REVERSED AND REMANDED WITH DIRECTIONS.

The plaintiff suffered work-related injuries that resulted in temporary total disability, long-term pain, physical limitations, and depression. An initial ruling failed to accurately understand the care coverage of the primary treating physician and therefore did not properly assign the full cost of medical expenses to the employer. The decision was remanded in part and the employer was ordered to pay the remaining medical expense.

Ira v. Regal Printing

IN THE NEBRASKA WORKERS’ COMPENSATION COURT
FRED IRA, Plaintiff, vs. REGAL PRINTING, Defendant.
DOC: 206 NO: 1919
ORDER OF REMAND, IN PART, AND AFFIRMANCE, IN PART

This matter came on for a review hearing before the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on April 1, 2008, on the Application for Review of the defendant filed November 15, 2007, alleging error in the Award entered on November 1, 2007, by Judge James R. Coe. A cross-appeal contained within the brief of Appellee is also considered along with oral arguments and written briefs of both parties. The review panel, being fully advised in the premises, finds as follows.

I.

Defendant assigns as error, the trial Court’s findings of temporary total disability benefits, and permanent total disability benefits as well as alleging error in the trial Court’s failure to satisfy Rule 11 of the Nebraska Workers’ Compensation Court with respect to failing to specify the evidence relied upon in making findings relating to plaintiff’s permanent and total disability.

Plaintiff’s cross-appeal alleges error in the trial Court’s failure to order payment of certain medical bills.

II.

The first issue to be addressed is defendant’s argument that the trial Court committed error in awarding temporary total disability for the period of time from and including October 7, 2002, to and including November 24, 2003. Defendant argues that for certain periods of time therein, plaintiff was working for defendant on a light duty basis, was receiving wages, and was temporarily partially disabled.

Uncontradicted evidence does exist which supports this argument. Plaintiff testified that he did return to work part time sometime in April, 2003, and stopped working for defendant in August, 2003. Defendant offered, and the Court received into evidence without objection, Exhibit 28, which is a summary of benefits paid. This exhibit contains evidence that defendant paid to plaintiff temporary partial disability benefits in the amount of $1,718.04, for the period of time from April 23, 2003 through August 25, 2003.

With respect to total disability, the Nebraska Supreme Court has stated that:

A worker who, because of his injury, is unable to perform or obtain any substantial amount of labor, either in his particular line of work, or in any other for which he would be fitted except for the injury, is totally disabled.

McDonald v. Lincoln U-Cart Concrete Co., 232 Neb. 960, 442 N.W.2d 892 (1989).

Another definition also cited by the Nebraska Supreme Court is that:

Total disability under the workers’ compensation law means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality and attainments could do.

Kleiva v. Paradise Landscapes, 230 Neb. 234, 430 N.W.2d 550 (1988).

Under these definitions, the trial Court committed clear error by awarding plaintiff temporary total disability benefits for the entire period of time from and including October 7, 2002, to and including November 24, 2003. This matter is remanded for specific findings with respect to the periods of time when plaintiff was entitled to temporary partial disability during this time period.

III.

We next take up the claimed errors in the trial Court’s finding that plaintiff was permanently and totally disabled and in failing to comply with Rule 11 of the Nebraska Workers’ Compensation Court in doing so.

Rule 11 of the Nebraska Workers’ Compensation Court provides:

Meaningful Review. Decisions of the court on original hearing shall provide the basis for a meaningful appellate review. The judge shall specify the evidence upon which the judge relies.”

(Effective date December 13, 2006.)

Meaningful review means that the appellate court can tell what the judge decided and why the decision was made, so the reviewing body can determine whether error was made. In this case, the trial judge set forth sufficient evidence to provide for meaningful review. The trial judge discussed various aspects of different medical evidence with respect to the pain plaintiff suffered because of his back injury, as well as the depression associated with the pain and physical limitations arising out of the accident. Ultimately, the Court placed greater emphasis on some opinions over others and made the finding that:

The Court finds that the plaintiff is five years since the date of the accident and due to the long term effects of that accident which include the physical injury, physical limitations, pain and depression together with the various physical restrictions of sedentary to light duty employment that the plaintiff is essentially an odd lot employee and unable to be employed in a competitive work environment and is permanently and totally disabled (T8).

This finding is supported by the facts and when taken together with the judge’s detailed discussion of various medical evidence in the record, does provide the basis for meaningful review.

Although the trial Court does not specifically state that the rebuttable presumption given to the report of the court-approved vocational rehabilitation expert was in fact rebutted, such finding is implicit in the context of the Court’s discussion. The counselor’s report setting forth the opinion that plaintiff suffered a 30 percent loss of earning capacity is dated February 12, 2004. Plaintiff first saw Dr. Nitcher for treatment of depression in September 2004. It was not until October 20, 2004, when Dr. Nitcher, a psychiatrist, opined that plaintiff was unable to be employed due to depression from the pain and physical limitations of the accident. Obviously, the court-approved vocational rehabilitation expert could not have taken such opinion into consideration, which the trial Court did. There is sufficient factual support for the Court’s implicit rejection of the rebuttable presumption that plaintiff had a 30 percent loss of earning capacity, and for the Court’s factual determination that plaintiff was permanently and totally disabled. These two assignments of error are without merit.

IV.

The final assignment of error is in the cross-appeal contained in plaintiff’s brief which asserts that the trial Court committed error in not ordering payment of $1,035.00 for treatment at Anesthesia Professionals, P. C., by Dr. Edwards.

The trial Court’s denial of the claimed expense in the amount of $1,035.00, was because:

The Court declines to award payment of this amount because the defendant had previously agreed to Dr. Edwards under a temporary plan of treatment and advised plaintiff that this plan had concluded and would no longer pay for Dr. Edwards’ treatment (T7).

Plaintiff received treatment by Dr. Edwards from June 14, 2006, through September 4, 2007. At the same time plaintiff was receiving medical management care in the nature of a check-up every six months by Dr. Anderson who treated plaintiff from February 21, 2003, through December 18, 2006. There is no evidence in the record that Dr. Anderson referred plaintiff to Dr. Edwards.

There is uncontradicted evidence in the record that defendant agreed to plaintiff’s treatment by Dr. Edwards. In a letter dated October 26, 2006, a senior claims adjuster for defendant’s insurance carrier wrote to plaintiff’s attorney:

I agreed to try Dr. Edwards to address your client’s concerns and complaints. I never agreed to a change in physician. Since Dr. Edwards attempts at treatment have not produced any improvement in Mr. Ira’s condition, I will no longer authorize treatment through his office (Vol. III; E27, p. 1).

For the treatment by Edwards up through the time of this letter, defendant paid a total of $2,123.13 to Dr. Edwards (Anesthesia Professionals, P.C.).

However, Rule 50(C) of the Nebraska Workers’ Compensation Court states, “there can be no change in the primary treating physician unless the employee and employer agree or the compensation court orders a change.” Here, the employee and employer agreed to a change in physician. There is no provision made in the Nebraska Workers’ Compensation Court’s Act or Rules, for the employee and employer to agree to a “referral” which can only be made by the primary treating physician. Rule 50 also assures that control of choice of medical care does not unilaterally rest with either the employee or the employer.

The review panel concludes that as a matter of law, by agreement of the parties, Dr. Edwards became plaintiff’s primary treating physician and the trial Court committed clear error when denying plaintiff’s claim that defendant should pay the medical bill as shown in Exhibit 12. This holding is buttressed by the fact that Dr. Anderson’s records show that Dr. Anderson was largely unaware of the fact that Dr. Edwards was monitoring plaintiff’s medication regime on a monthly basis, when Dr. Anderson was seeing plaintiff once every six months. Judge Coe’s award is modified to the extent that defendant shall pay the unpaid medical billings for Dr. Edward’s care as reflected in Exhibit 12, in the amount of $1,035.00.

V.

Plaintiff succeeded in obtaining an increase in defendant’s obligation to pay the medical expenses outlined above and is entitled to an attorney fee of $1,000.00, and interest as allowed by law.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DEGREED that Judge Coe’s Award of November 1, 2007, is affirmed in part, and remanded, in part for the reasons outlined above.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff has obtained an increase in the award pursuant to his cross-appeal, and is entitled to an attorney fee in the amount of $1,000.00, and interest as allowed by law.

Dated at Lincoln, Lancaster County, Nebraska, on this 25th day of June, 2008.

NEBRASKA WORKERS’ COMPENSATION COURT

/s/Michael K. High
JUDGE

/s/J. Michael Fitzgerald
JUDGE

/s/John R. Hoffert
JUDGE

Increase in Benefits on Appeal: Witte v. Helget Gas Products

IN THE NEBRASKA WORKERS’ COMPENSATION COURT

RAMONA W. WITTE, Plaintiff, vs. HELGET GAS PRODUCTS and CNA INSURANCE AND GENERAL CASUALTY COMPANY OF WISCONSIN, a Wisconsin Insurance Company, Defendants.

DOC: 204 NO: 1739

ORDER OF REMAND, IN PART, ON REVIEW

APPEARANCES:

Plaintiff: Jeffrey F. Putnam

6790 Grover Street, Suite 250

Omaha, NE 68106-3612

Defendants: Thomas B. Wood

Wolfe, Snowden, Hurd, Luers & Ahl

Suite 800, Wells Fargo Center

1248 O Street

Lincoln, NE 68508-1424

James D. Hamilton

Baylor, Evnen, Curtiss, Grimit & Witt

Wells Fargo Center

1248 ‘O’ Street, Suite 600

Lincoln, NE 68508

THIS MATTER came on for a review hearing before a panel of the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on August 15, 2006, on the Applications for Review of the defendants filed March 1, 2006, and the cross-appeal filed by the plaintiff alleging errors in the Award entered on February 15, 2006, by Judge Michael P. Cavel and upon the written briefs and oral arguments of the parties.

I.

While the respective Applications for Review filed by each of the defendants cite numerous alleged errors, the review panel believes that certain errors or omissions committed by the trial court compel a remand. That remand requires that the trial court consider issues which arguably effect the other assignments of error urged by each of the defendant insurers. Thus, not all of the issues properly raised and briefed on appeal need be addressed at this point.

II.

As a matter of initial concern, the review panel observes that there was no express finding by the trial court regarding whether or not the defendant insurers provided workers’ compensation coverage to the defendant employer on the date of the accidents alleged. The Amended Petition filed by the plaintiff clearly sets forth allegations that CNA Insurance provided coverage to the defendant employer relative to the alleged accident date of July 23, 2002 (T5). With respect to General Casualty Company of Wisconsin, a similar assertion is made regarding the alleged April 13, 2004, accident (T7). Each of the defendant insurers filed Answers denying the allegations made by the plaintiff (T9-10) (T11-12). Hence, the issue of whether or not the respective insurance companies provided coverage on the dates of the alleged accidents as well as any corresponding liability to pay benefits was in issue. Additionally, it seems clear to the panel that the relationship relative to the issue of coverage and liability ran not only to the plaintiff but to each other as each insurer asserts on appeal that the other was liable (T42) (T32).

While the trial court ultimately wrestled with the issue of which insurer ought to bear liability (T23) (Supplemental Transcript, p. 5), the trial court made no finding in its Award on the issue of coverage. The pleadings clearly indicate that the rights and liabilities of the various parties were in contest.

Given that the trial judge did not expressly reserve ruling on the matter, the Award was final and thus appealable. The omission constituted, in essence, a denial of plaintiff’s allegations regarding insurance coverage. See generally Dawes v. Wittrock Sandblasting & Painting, Inc., 266 Neb. 526, 667 N.W.2d 167 (2003). Under Wittrock, supra, the judge’s omission in this regard, while not fatal to the finality of the award, constituted error requiring a remand under Rule 11 of the Rules of Procedure of the Nebraska Workers’ Compensation Court. That rule provides:

All parties are entitled to reasoned decisions which contain findings of fact and conclusion of law based upon the whole record which clearly and concisely state and explain the rationale for the decision so that all interested parties can determine why and how a particular result was reached. The judge shall specify the evidence upon which the judge relies. The decision shall provide the basis for a meaningful appellate review.

Given the lack of any discussion regarding coverage and the respective liability of the defendant insurers as to the accident dates alleged, the review panel is unable to conduct a meaningful appellate review given the failure of the judge to clearly determine the issue presented. Hence, a remand is necessary for the trial judge to formally rule on the issue of which insurance carrier provided coverage on the alleged dates of accident and to address the liability of each carrier for benefits awarded.

III.

The review panel also believes that a remand is required owing to what it perceives to be a contradiction in the findings made by the trial court relative to the loss of earning capacity suffered by the plaintiff vis-à-vis the alleged accidents of July 23, 2002, and April 13, 2004. The following excerpt from the Award highlights the confusing nature of the findings detailed therein:

Although the plaintiff had received disability ratings to her body as a whole after July 23, 2002, and before April 13, 2004, no physician had expressed any opinion that she was impaired in any particular way or was obliged to observe any permanent restrictions. There is thus no basis for the Court to award any permanent loss of earning power. In a letter to plaintiff’s counsel dated March 1, 2005, Dr. Puccioni notes that the plaintiff’s arthritis was aggravated on April 13, 2004, and he suspects that her restrictions are more based on that than apparently her first accident. He goes on to state, however, that the plaintiff was not perfect prior to her accident of April 13, 2004, and arguably restrictions could have been placed upon her prior to April 13, 2004, but he says nothing about what such restrictions would have been. The Court finds that the plaintiff is permanently and totally disabled as a result of her two accidents in question. The Court is unable to determine how much earning power loss the plaintiff suffered as a result of each accident (Supplemental Transcript, p. 5) (italics provided).

The contradiction and ambiguity is evident as one reads the italicized portions of the Award reverenced above. On the one hand the trier of fact arguably indicates that there was no basis upon which to award a loss of earning power occasioned by the July 23, 2002, accident. Yet, within the same paragraph the trial court found the plaintiff to be permanently and totally disabled as a result of both of the accidents in question.

While the trial court may well have had a reason in mind for reaching such a conclusion, the reader is left to ponder what is clearly an ambiguity given the written words utilized. As observed by the Nebraska Supreme Court in Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57 (1998), “neither party should prevail on the basis of an ambiguity” (254 Neb. at 695). Consequently, a remand is necessary so that the trial court can enter an order complying with the requirements of Rule 11 and thus provide a basis for a meaningful appellate review.

IV.

Finally, the review panel finds no merit in the error asserted contending that the trial court was free to consider the medical opinions of the medical examiner previously appointed by the Court as the record before us does not allow for a meaningful review of this issue. It is the understanding of the review panel that the trial judge solicited the opinions of the appointed medical examiner for purposes of assisting the Court in determining which permanent restrictions were necessitated by which accident. [Presumably the assignment of restrictions to each accident would have been an asset to the trial court in establishing plaintiff's lost earning capacity from each accident.] However, upon the motion of the defendant, General Casualty Insurance Company (T21), the trial court struck the opinion of the appointed medical examiner believing it to be violative of Neb. Rev. Stat. § 48-120 (T23). The report detailing the medical findings is not actually before the panel and thus its contents are unknown. Whether the opinions set forth therein might compel a different decision by the panel is, therefore, unknown. The lack of a record in this regard prevents the review of this assigned error.

V.

The various other assignments of error (as discussed in the briefs filed by the defendants), whether considered individually or globally, all seem to be somewhat dependent in one manner or another upon the ultimate findings of the trial court after remand. Consequently, the panel defers consideration of these errors (if necessary) pending further decision by the trial court upon remand.

VI.

In her cross-appeal, the plaintiff has asserted that the trial court erred in not allowing temporary total disability benefits following the April 13, 2004, accident. In support of her position the plaintiff recounts in her brief that she missed time from work after April 13, 2004 and that there are medical records excusing the plaintiff from work for those various periods of time following April 13, 2004.

While acknowledging the existence of the testimony of the plaintiff and the various medical records to that effect, the trial court declined to award temporary disability benefits owing to the lack of an expert opinion indicating that the missed time from work was a result of the accident of April 13, 2004 (Supplemental Transcript, p. 4). Given that plaintiff’s treating physician, Dr. Gross, does relate plaintiff’s left shoulder injury to the accident of April 13, 2004 (E3, p. 36), and provided plaintiff with an off work slip for the left shoulder injury (E3, p. 22), the trial court ought to reconsider its conclusion. The review panel believes that the plaintiff’s assertion of error does find support in the record.

VII.

In her last assigned error, the plaintiff contends that the trial court erred in not awarding permanent partial disability benefits for the scheduled member injury she suffered in the April 13, 2004, accident. In addressing the plaintiff’s claim for such benefits, the trial court indicated that there was no opinion from any physician indicating that any such impairment existed and, thus, declined to award any permanent disability benefits (Supplemental Transcript, p. 4).

The plaintiff in her brief directs the review panel’s attention to the report of Dr. Gross of September 14, 2005, wherein he indicated that the plaintiff suffered a five percent impairment rating to her left upper extremity owing to the April 13, 2004, incident (E3, p. 36). The existence of such an opinion clearly runs counter to the conclusion of the trier of fact that no opinion from any physician existed regarding the subject of permanent impairment to a scheduled member. Consequently, the matter must be remanded to the trial court so that a consideration of Dr. Gross’ opinion may be undertaken.

IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED that the Award entered by Judge Michael P. Cavel on February 15, 2006, ought to be remanded, in part, as noted above.

IT IS FURTHER ORDERED that as the panel is unable to ascertain at this point whether or not the defendants have secured a reduction in the amount of benefits owed to plaintiff or whether the plaintiff has or will obtain an increase in her benefits, any award of an attorney’s fee would be speculative and premature at this point.

Dated at Lincoln, Lancaster County, Nebraska, on this 27th day of February, 2007.

NEBRASKA WORKERS’ COMPENSATION COURT

/s/John R. Hoffert

JUDGE

/s/J. Michael Fitzgerald

JUDGE

/s/ James R. Coe

JUDGE