We’ve created a comprehensive page dedicated to this question. Click here to read more about tax deductibility of workers’ compensation benefits.

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.

IN THE NEBRASKA WORKERS’ COMPENSATION COURT

AWARD

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

APPEARANCES:

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.

I.

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.

II.

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

III.

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.

IV.

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

Midwest Neurosurgery
$1,670.28
Alegent Lakeside
$3,458.83
Radiology Consultants
$193.80
Internal Medicine Physicians
$404.51
Reimbursement to Vera
$375.00
Coventry Subrogation
$26,386.00
UHC Subrogation
$114.96
Prescription Reimbursement
$145.43

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.

V.

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.

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

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.

NEBRASKA WORKERS’ COMPENSATION COURT
/s/Ronald L. Brown
JUDGE
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Under Nebraska law, injured workers have the right to choose a doctor to treat their injuries. However, the doctor chosen must have seen the employee or an immediate family member before the accident.  Otherwise, the employer may have the right to select the physician.  Even if an employee has an eligible family physician, many times employers will persuade or even intimidate injured employees to waive this right and treat with a company-selected doctor.  NEVER waive this right. 

I speak to someone almost daily who unknowingly has waived this right and agreed to treat with a doctor chosen by the employer/insurance company.  Companies pick these physicians for a reason.  Company/insurance friendly doctors generally are more conservative in treatment and when ordering testing.   For example, if an employee suffers a low back injury, depending upon the circumstances, a family physician may order an MRI to further investigate the nature of the injury and determine if a disc is damaged or ruptured.  However MRI’s cost money (about $2,000.00).  Insurance companies do not like shelling out $2,000.00 for MRI’s.   On the other hand a conservative company doctor may elect to save the insurance company money and not order the test.  It happens all the time.  Sometimes employees treat with company doctors for several months – even years without a second opinion.   It can be very frustrating for all parties involved and can even create problems recovering from a serious work injury.

Once again, never allow the employer or insurance company to pick your doctor.  This a red flag.

Call or email our office for a free consultation.  There is no obligation and it may be the best call you ever make. 

Sound absurd?  Well it is absurd.  But the fact of the matter is insurance company are stalking the injured through Facebook and other social media in an attempt to deny or devalue personal injury claims or workers’ compensation claims. Now Facebook, Twitter and other social media have opened the door for more “investigation.”  No matter how absurd the reasoning.

If you post on Facebook you should be very careful what you post.  Never discuss a work injury or auto accident on Facebook of other media.  Also avoid discussing your medical condition.  Insurance companies save these posts, so they can be preserved and used against you in the future.  They can even be read to a jury.

If you have any questions, you should call an injury attorney to discuss the particulars of your case.  At Putnam law there is no obligation or fee for an initial consultation. Call or email today.

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.

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