Opinion
No. A-12-119
10-16-2012
RITA GUSTAFSON, APPELLANT, v. SHERWOOD-NORFOLK AND AMERICAN HOME ASSURANCE CO., APPELLEES.
Rolf Edward Shasteen, of Shasteen, Miner, Scholz & Morris, P.C., L.L.O., for appellant. Bryan S. Hatch, of Stinson, Morrison & Hecker, L.L.P., for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the Workers' Compensation Court. Affirmed.
Rolf Edward Shasteen, of Shasteen, Miner, Scholz & Morris, P.C., L.L.O., for appellant.
Bryan S. Hatch, of Stinson, Morrison & Hecker, L.L.P., for appellees.
IRWIN, PIRTLE, and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Rita Gustafson appeals from an order of the Nebraska Workers' Compensation Court review panel affirming in part and reversing in part the order of the trial judge. Finding no merit to the assertions on appeal, we affirm.
BACKGROUND
Gustafson was an employee of Sherwood-Norfolk when, on March 21, 2006, she slipped on ice in the company's parking lot and sustained back injuries. She continued working her shift that day and sought treatment from Dr. Curtis Meyer at Midwest Health Partners Chiropractic the following day. Her treatment was then transferred to Dr. Shannon Spence at Midwest Health Partners Chiropractic. Prior to the accident, Gustafson had sought and received medical treatment for complaints of cervical, lumbar, and hip pain dating back to January 1998.
Following the March 2006 accident, in addition to chiropractic care, Gustafson was treated by numerous other medical professionals. She saw Dr. George Green, a neurosurgeon, who referred Gustafson for x rays and MRI studies. The lumbar and cervical spine MRI performed on February 1, 2007, revealed degenerative disk disease and minor disk bulges. Dr. Green diagnosed Gustafson with a cervical and lumbar strain and recommended physical therapy or a lumbar epidural block, but noted that surgery was not recommended. Gustafson also presented to the office of Dr. Daniel Wik, a chiropractic physician, where she received several epidural injections starting in March 2007. Dr. Wik also authored a report dated May 5, 2008, wherein he found that Gustafson should be limited in her repetitive movement, stooping, kneeling, squatting, twisting, bending, pushing, and pulling and that Gustafson needed to be accommodated in a more ergonomic-friendly manner at work.
After seeing Dr. Wik, Gustafson was treated by Dr. John Massey at Nebraska Pain Consultants, where she received a lumbar medical branch block on September 18, 2008. Dr. Massey opined that Gustafson was not a surgical candidate and recommended that she continue with muscle strengthening via aqua therapy and advance to land therapy.
Gustafson was next referred to an orthopedic surgeon, Dr. Daniel Ripa, who, on October 6, 2008, found that Gustafson was not a surgical candidate and that she would not benefit from further epidural injections. Dr. Ripa recommended that Gustafson lose weight and work on abdominal strength to reduce her back pain. Gustafson then presented to orthopedic surgeon Dr. Timothy Burd on November 25, who also found that she was not a surgical candidate and referred her to a pain specialist, Dr. Alicia Feldman. Dr. Feldman recommended land-based physical therapy, epidural injections, and a nonsteroidal anti-inflammatory medication.
A chiropractic physician, Dr. Scott Misek, examined Gustafson's treatment record, and in a report dated November 22, 2008, he stated that Gustafson sustained a soft tissue injury to her cervical and lumbar region. Dr. Misek noted that Gustafson's subjective complaints of pain had remained static and that any objective findings were undecipherable and nonspecific. Dr. Misek found that there was no supported documentation for Gustafson's treatment beyond May 15, 2006, and that there was a duplication of services which was not warranted.
Dr. Lonnie Mercier, another orthopedic surgeon, also evaluated Gustafson. In reports dated December 14, 2006, and March 4, 2008, Dr. Mercier indicated that he could find no significant objective findings, that Gustafson had chronic pain syndrome, that Gustafson was at maximum medical improvement, that further chiropractic treatment would not help, and that Gustafson had no permanent impairment. In a subsequent report dated October 4, 2010, Dr. Mercier again found that Gustafson had a 0-percent permanent impairment.
Pat Conway performed a loss of earning capacity analysis. In a report dated July 29, 2008, Conway found that Gustafson had a 0-percent loss of earning capacity if Dr. Mercier's restrictions were incorporated and a 15-percent loss of earning capacity if Dr. Wik's restrictions were incorporated.
The case was tried in the Workers' Compensation Court on December 8, 2008. At the trial, the parties stipulated that the sole issue before the court was whether Gustafson was entitled to medical expenses. Specifically, the judge stated, "If I understand the opening statements correctly, there's no claim for temporary total disability, no claim for permanent partial disability, no claim for any permanent impairment or loss of earning capacity or anything of that nature. The sole issue here is future medical care. Is that correct, [counsel]?" Gustafson's counsel responded, "I guess in addition to the payment of the outstanding medical bills and mileage, but yes, that is the ultimate issue here."
After trial, the court entered an award dated February 4, 2009 (the original award). The court relied upon the reports of Drs. Wik, Mercier, and Misek to find that Gustafson reached maximum medical improvement on or about March 29, 2008, and awarded medical expenses from the date of injury through the date of maximum medical improvement. Noting the parties' stipulation at trial, the court made no award on any issues other than medical expenses.
Gustafson continued to work for Sherwood-Norfolk after the March 21, 2006, accident without missing any days until July 14, 2009, when she was taken off work by Dr. Kelly Ellis and went on leave under the Family Medical Leave Act. She remained on leave until January 10, 2010, when she wanted to return to work for a few days but was told she must work for at least 30 days in order to retain her employment. Gustafson was unable to work the required 30 days, in part because of her back pain and in part because she wanted time off to undergo back surgery. Through an Internet search, Gustafson found a physician in Florida who performed laser spine surgery on her on January 12. Because Gustafson had exhausted the 6-month limit of the Family Medical Leave Act, Sherwood-Norfolk terminated her employment effective January 13.
On August 19, 2009, Gustafson underwent a supplemental MRI examination which found mild multilevel degenerative disk disease and a negative study for stenosis or disk protrusion. On March 9, 2010, Gustafson underwent a supplemental functional capacity evaluation at Lincoln Orthopedic Physical Therapy. This supplemental evaluation found that Gustafson could work at a light physical demand level and that based on her history of a sprain/strain type injury, Gustafson had a 2-percent permanent impairment to the whole person.
On June 25, 2010, Gustafson filed a petition to modify the original award, alleging that there had been a material and substantial change in her condition, that her physician had opined that bariatric surgery was medically necessary, and that she was entitled to permanent disability benefits for loss of earning power, vocational rehabilitation benefits, and future medical treatment.
A hearing on the petition to modify was held on February 17, 2011, and the court entered an award dated March 25, 2011. The court found that there had not been a material and substantial change in Gustafson's condition, but, rather, that her condition remained static. The court declined to order Sherwood-Norfolk to pay for bariatric surgery based on Dr. Mercier's opinion that any need for the surgery was not related to the March 2006 accident. The court also refused to award vocational rehabilitation because Sherwood-Norfolk provided employment within any restrictions Gustafson may have had from the date of the accident until July 14, 2009. Relying upon the July 29, 2008, loss of earning capacity analysis, however, the court awarded a 15-percent loss of earning capacity.
Sherwood-Norfolk and American Home Assurance Co. appealed to the review panel, and a hearing was held on September 8, 2011. In an order dated January 20, 2012, a majority of the review panel reversed the award of a 15-percent loss of earning capacity but affirmed all other findings in the trial court's order. The review panel determined that it was error for the trial court to find that Gustafson had a 15-percent loss of earning capacity when the original award did not award such benefits and without a finding that Gustafson's condition had worsened. One judge dissented from the decision. Gustafson timely appeals.
ASSIGNMENTS OF ERROR
Gustafson alleges, restated and reordered, that the review panel erred in (1) holding that the trial court erred in awarding permanent disability benefits; (2) affirming the trial court's failure to award permanent partial disability benefits based on an amended loss of earning power opinion dated November 30, 2010; (3) finding that she had not challenged the factual finding that there was no material and substantial change in her condition; (4) failing to treat the petition to modify as a petition for further award; (5) failing to reverse the trial court's refusal to award payment for bariatric surgery; and (6) failing to reverse the trial court's refusal to award vocational rehabilitation services.
STANDARD OF REVIEW
A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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 no 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. Neb. Rev. Stat. § 48-185 (Supp. 2011).
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 the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012). With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.
ANALYSIS
Permanent Disability Benefits.
Gustafson asserts the review panel erred in reversing the trial court's ruling awarding permanent disability benefits based on a 15-percent loss of earning capacity. The original order was silent on the issue of permanent disability benefits. Where an order is clearly intended to serve as a final adjudication of the rights and liabilities of the parties, the silence of the order on requests for relief not spoken to can be construed as a denial of those requests under the circumstances. D'Quaix v. Chadron State College, 272 Neb. 859, 725 N.W.2d 558 (2007). We have previously applied this proposition to the interpretation of workers' compensation awards. See McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007) (construing award's silence on the issue of vocational rehabilitation benefits as denial of those services).
In the instant case, the original award was intended to serve as a final order. The court noted in the award that the parties stipulated that no claim was being made for any temporary disability benefits or any permanent indemnity benefits and that the sole issue for trial was Gustafson's entitlement to medical expenses. In addition, the court noted it had been "fully advised in the premises," reserved no issues for later consideration, and determined when Gustafson reached maximum medical improvement. Because maximum medical improvement "is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident," Worline v. ABB/Alstom Power Int. CE Servs., 272 Neb. 797, 810, 725 N.W.2d 148, 158 (2006), the finding of maximum medical improvement indicated that the court intended the award to adjudicate all of Gustafson's compensable injuries resulting from the 2006 accident.
Gustafson argues that implicit in the parties' stipulation as to the issues to be addressed at trial "was the intent to reserve consideration of permanent disability for the future." Brief for appellant at 14. However, the parties did not so indicate when agreeing to the stipulation at trial, and notably, the court reserved no issues for further determination. Additionally, after the original award was entered, the findings were not challenged on appeal and became final. We therefore find that the original award was meant to be a final adjudication of the rights and liabilities of the parties and that the trial judge's silence on the issue of loss of earning capacity can be construed as a denial of those benefits.
As a result, in order to modify the original award, Gustafson was required to prove, by a preponderance of the evidence, that she had suffered a material and substantial change in her condition due solely to the injury resulting from the original accident. Neb. Rev. Stat. § 48-141 (Reissue 2010); McKay, supra.
The review panel affirmed the trial judge's finding that Gustafson's condition was static, noting there was adequate support in the evidence for the finding that Gustafson was not entitled to modify the original award. We find this was not clearly erroneous. In determining that Gustafson's condition was unchanged, the trial judge relied upon evidence establishing, inter alia, that of the numerous physicians Gustafson saw, none could find anything objectively wrong and diagnosed her condition as a lumbar strain/sprain. In addition, the results of the MRI examinations performed on February 1, 2007, and August 19, 2009, remained the same. Loss of earning capacity and functional capacity evaluations Gustafson underwent before the original trial and before the hearing on the petition to modify also remained relatively unchanged. Finally, Gustafson continued to work for Sherwood-Norfolk without missing a day from the date of the accident until July 14, 2009, when she took leave under the Family Medical Leave Act. The evidence supports the finding that Gustafson's condition was unchanged, and therefore, the review panel did not err in affirming the trial court's decision.
Permanent Partial Disability Benefits.
Gustafson asserts the review panel erred in affirming the trial court's failure to award permanent partial disability benefits based on an updated loss of earning capacity analysis by Conway dated November 30, 2010. Gustafson argues she is entitled to benefits based on the November 30 report, not the July 29, 2008, report upon which the trial court relied. We find it was not clear error for the review panel to hold that Gustafson is not entitled to any permanent disability benefits, because she failed to prove she suffered a material and substantial change in her condition; therefore, this assignment is without merit.
Challenge to Factual Finding.
Gustafson asserts the review panel erred in finding that she had not challenged the factual finding that there was no material and substantial change in her condition. Even if the review panel erred in finding that Gustafson had not challenged the factual findings, such error is harmless, because we affirm the ruling that Gustafson suffered no change in her condition and is thus not entitled to permanent disability benefits.
Petition to Modify.
Gustafson next alleges the review panel erred in not treating the petition to modify as a petition for further award. We find this assignment without merit. Gustafson's petition to modify does not merely request additional benefits, but, rather, it asks that the court modify the original award pursuant to § 48-141 because Gustafson had suffered a material and substantial change in her condition. Thus, the petition to modify was properly treated as such.
Bariatric Surgery.
Gustafson next asserts the review panel erred in failing to reverse the trial court's refusal to award payment for bariatric surgery. Whether medical expenses are reasonably necessary and related to the work-related injury is a question of fact to be determined by the trial judge. Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 778 N.W.2d 504 (2009). The findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012). In denying Gustafson's request for bariatric surgery, the trial judge noted that Gustafson's weight had been an issue throughout her medical treatment and that although her weight fluctuated, there had been several occasions where she had lost 20 pounds over time. The trial judge discussed conflicting medical opinions as to whether bariatric surgery was related to the work-related injury and was more persuaded by the opinion that it was not related to the March 21, 2006, injury. The court found Gustafson's gradual weight gain was not the result of inactivity due to back pain from her injury, as indicated by the fact that she continued to work without missing a day from March 21, 2006, until July 14, 2009. The court's decision to decline to award bariatric surgery was supported by the evidence and was not clearly wrong; therefore, we affirm.
Vocational Rehabilitation.
Gustafson also alleges the review panel erred in failing to reverse the trial court's refusal to award vocational rehabilitation services. Vocational rehabilitation benefits are properly awarded when an injured employee is unable to return to the work for which he or she has previous training or experience. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008). Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the Workers' Compensation Court. Id.
The trial court declined to award vocational rehabilitation services because Sherwood-Norfolk provided employment within any restrictions Gustafson may have had from the date of the injury until Gustafson took leave under the Family Medical Leave Act on July 14, 2009. From March 21, 2006, until July 14, 2009, Gustafson worked without missing any days. Gustafson testified at trial that prior to being taken off work for separate wrist issues, she was physically capable of completing all of her jobs at Sherwood-Norfolk that she was asked to do. Because the trial court's ruling is supported by the evidence, we affirm.
CONCLUSION
We conclude that the original order was a final adjudication of the parties' rights and liabilities and that Gustafson failed to prove a material and substantial change in her condition and was therefore not entitled to permanent disability benefits. We further determine that the review panel did not err in affirming the trial court's refusal to award payment for bariatric surgery and vocational rehabilitation benefits. Finally, the petition to modify was properly treated as such. Accordingly, we affirm the review panel's order.
AFFIRMED.