Opinion
No. A-12-302
12-11-2012
DAVID HASWELL, APPELLANT AND CROSS-APPELLEE, v. TRADE WELL PALLET, INC., AND ZURICH AMERICAN OF ILLINOIS, APPELLEES, AND BANCINSURE, INC., APPELLEE AND CROSS-APPELLANT.
Holly Theresa Morris, of Shasteen, Miner, Scholz & Morris, P.C., L.L.O., for appellant. Douglas L. Phillips, of Klass Law Firm, L.L.P., for appellee Bancinsure, Inc.
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.
Holly Theresa Morris, of Shasteen, Miner, Scholz & Morris, P.C., L.L.O., for appellant.
Douglas L. Phillips, of Klass Law Firm, L.L.P., for appellee Bancinsure, Inc.
IRWIN, PIRTLE, and RIEDMANN, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
David Haswell appeals from a judgment of the Nebraska Workers' Compensation Court awarding him temporary and permanent disability but refusing (1) to pay for a certain surgery, (2) to determine the date of maximum medical improvement (MMI), (3) to continue the particular benefits he was entitled to, and (4) to grant vocational rehabilitation. Bancinsure, Inc., a workers' compensation insurance carrier, cross-appeals the trial court's determination of the date of injury. For the reasons explained below, we affirm in all respects.
II. BACKGROUND
David Haswell is 48 years old. He did not graduate high school, nor did he obtain a diploma through the GED program. He began working for Trade Well Pallet, Inc., as a fleet mechanic in September 2008. This position required Haswell to perform a range of physically demanding duties, including oil changes, brake jobs, and "breaking down" tires. Haswell testified that his job required him to lift at least 100 pounds daily and to repeatedly lift smaller amounts of weight. Haswell stated that the physical demands of his job presented no difficulty prior to November 1, 2009.
Haswell claims that on about November 1, 2009, he experienced a sudden pain in his left shoulder, neck, right shoulder, and back while he was "breaking down" tires. He testified that when he pushed into the tire, it felt "like something crunched and just like something was stuck in my left shoulder." Haswell said that the pain "was a shooting pain" extending from the back of his neck down his back.
Haswell testified that right after his injury occurred, he reported it to the "safety man," Douglas Cheney. According to Haswell, Cheney said he likely sprained something and told him to rest for a couple of days. After resting for a couple of days, Haswell reported to Cheney that he was still in pain. He testified that Cheney said he would get ahold of the insurance company and "get the ball rolling." Haswell testified that he interpreted this to mean that he needed to wait for authorization before seeing a doctor.
Cheney, however, testified that he asked Haswell if he wanted to file a workers' compensation claim and that Haswell declined because he did not want to see a doctor at that time. According to Cheney, Haswell did not file a first injury report until March 2010, when Haswell decided to seek treatment.
According to Haswell, he experienced an increase in pain over the course of time, but did not seek treatment until March 2010 because he had been waiting to get authorization and information on whom to see. Haswell ultimately went to his primary care physician in March, where a nurse practitioner treated him. Haswell testified that he told the nurse practitioner about the pain in both of his shoulders, his neck, and his back, but that she initially focused on treating his left shoulder, which was causing him the most pain. The nurse practitioner referred Haswell to two specialists: a Dr. Keiser and a Dr. Doran.
In a note dated March 30, 2010, Dr. Doran's physician's assistant indicated that Haswell's symptoms began in December 2009. She wrote that Haswell said he "did not have a moment of injury, but noticed that he was taking increasing amounts of Aleve over a few weeks' time to try and manage pain in his neck and shoulder." On May 9, noting that Haswell was seeking concurrent treatment for his shoulder from another physician, Dr. Doran stated that nothing needed to be done for Haswell's neck because he did not have any significant radicular symptoms. Dr. Doran also opined that Haswell had no restrictions with regard to his neck.
Haswell sought concurrent treatment for his shoulder with Dr. Keiser. Dr. Keiser testified that Haswell suffered a left shoulder injury on December 19, 2009, while "breaking down" tires, which resulted in immediate neck and shoulder pain. Dr. Keiser injected Haswell's shoulder with steroids, but Haswell was only partially responsive to this treatment. Dr. Keiser recommended surgery, but Haswell declined. Due to Haswell's refusal to pursue further treatment to improve his condition, Dr. Keiser placed Haswell at MMI for his left shoulder on June 9, 2010. In July, however, Haswell experienced an abrupt onset of worsening shoulder pain about a week after grabbing a tire gun. As a result, Dr. Keiser recommended that Haswell have surgery on his left shoulder, which Dr. Keiser performed on August 10. Dr. Keiser opined that Haswell's initial injury in December 2009 "initiated the cascade" and that subsequent wear and tear exacerbated the injury. Haswell, however, did not miss any work due to his injury until August 10.
Following surgery, Haswell's right shoulder began bothering him and he began treating with Dr. Keiser on January 6, 2011, for these symptoms. Although conservative treatment was initially beneficial, Dr. Keiser ultimately recommended surgery in an attempt to alleviate Haswell's right shoulder problems. Despite refusal for payment by his workers' compensation carrier, Haswell had the surgery performed.
Haswell returned to Dr. Doran on June 8, 2011, with complaints of neck pain. Haswell testified that once his shoulders began to feel better, his neck started to hurt again. Upon review of an updated MRI from June 3, Dr. Doran found minor changes at multiple levels of Haswell's cervical spine and recommended a steroid injection to alleviate the pain. Haswell returned to Dr. Doran with continued complaints of neck pain on July 12. Dr. Doran did not believe Haswell was a surgical candidate, recommended no further treatment, and found Haswell was at maximum healing for his neck.
Haswell's primary care physician recommended that he obtain a second opinion for his neck and referred Haswell to a Dr. Greene. On July 21, 2011, Dr. Greene recommended that Haswell have a C5-6 anterior cervical diskectomy and interbody fusion with allograft and plating. Dr. Greene noted that Haswell was considering the surgical option and would contact Dr. Greene if he wished to proceed.
In a September 23, 2011, letter to Haswell's attorney, Dr. Greene wrote that if Haswell did not elect to have this surgery then he would consider Haswell to be at MMI. In a followup letter to Haswell's attorney on November 3, Dr. Greene again suggested that Haswell proceed with a C5-6 anterior cervical diskectomy "if patient desires." Haswell testified that he would like to have this surgery performed, but has not proceeded because of financial concerns.
Haswell testified that he continues to have pain in his head, neck, and back and that he experiences shooting pain through his arms, sometimes causing his fingers to go numb. He is currently employed by Midland Carrier Transicold (Midland Carrier) as a temperature controlled unit mechanic. He testified that his duties often cause him pain and that he has difficulty hanging chutes, which weigh 20 pounds and need to be lifted overhead. Haswell estimates that his job requires him to lift more than 100 pounds. He testified that he would not be able to do any of the jobs he has done in the past with his current restrictions and that he does not know of any jobs in the Omaha or Louisville, Nebraska, area that he is physically capable of performing.
According to Brent Bednar, who performed a functional capacity evaluation (FCE), Haswell reported to him that the job at Midland Carrier requires him to lift a maximum of 50 pounds and to carry 20 pounds. Bednar found that Haswell had the ability to work at a modified medium physical demand level on a full-time basis and was able to lift 50 pounds below the waist, to lift 45 pounds above the waist, and to carry up to 50 pounds occasionally. Bednar found that Haswell is restricted to occasional overhead reaching/lifting. Dr. Keiser agreed with the recommendations outlined in the FCE.
On January 19, 2011, Haswell filed a petition with the Nebraska Workers' Compensation Court seeking an award for medical treatment and costs, temporary total disability, temporary partial disability, permanent partial disability, vocational rehabilitation, and attorney fees and penalties as a result of an injury occurring at work sometime between November 1, 2009, and March 10, 2010.
Following a hearing on January 24, 2012, the Workers' Compensation Court found that Haswell suffered injuries to his right arm, left arm, and spine on August 10, 2010, while he was employed by Trade Well Pallet. The court determined August 10, 2010, was the appropriate date of injury because it was the first day Haswell missed work. The court found that Haswell was temporarily totally disabled from August 10, 2010, until July 12, 2011, when Dr. Doran reported that he did not recommend a cervical fusion for Haswell's injury. Because the court found that Haswell declined the neck surgery suggested by Dr. Greene, it found that Haswell was at MMI and that Haswell's temporary total disability benefits should end on July 21, 2011, the last date on which Dr. Doran treated Haswell.
The court awarded benefits for Haswell's future medical evaluations and treatment, including medications, injections, and physical therapy. Since Bancinsure, Inc., was providing workers' compensation insurance to Trade Well Pallet on the date of injury, August 10, 2010, the court required Bancinsure to reimburse Zurich American of Illinois, a workers' compensation insurance carrier, for all medical expenses it had paid while under the assumption that the accident occurred prior to the termination of its coverage on December 31, 2009. The court declined to award vocational rehabilitation benefits because Haswell had found suitable employment at Midland Carrier.
III. ASSIGNMENTS OF ERROR
Haswell alleges that the trial court erred in (1) finding he had declined surgery on his cervical spine and in failing to order payment for that surgery, (2) finding he had reached MMI, (3) terminating his temporary disability benefits, (4) determining his permanent disability, and (5) failing to award vocational rehabilitation services. Bancinsure alleges on cross-appeal that the trial court erred in finding Haswell suffered from repetitive trauma and in finding Haswell's date of injury was August 10, 2010.
IV. 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).
On appellate review, the findings of fact made by the trial judge of the Workers' Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009).
V. ANALYSIS
1. FAILURE TO ORDER PAYMENT FOR SURGERY
Haswell asserts that the Workers' Compensation Court did not award payment for surgery on Haswell's cervical spine because it incorrectly found that he declined the surgery. This assigned error is without merit because the Workers' Compensation Court determined the surgery was unnecessary.
Dr. Greene suggested surgery during Haswell's July 21, 2011, appointment. However, despite the fact that Dr. Greene was willing to perform surgery, Dr. Doran did not recommend it. The award makes clear that the trial court accepted Dr. Doran's opinion over that of Dr. Greene. Where there is a conflict in the medical evidence, the trial judge is entitled to accept the opinion of one expert over another and an appellate court will not substitute its judgment for that of the trial court. See Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).
Because the trial court accepted Dr. Doran's opinion that surgery was not necessary, it did not err in failing to order payment for that procedure, regardless of whether Haswell declined the procedure.
For the sake of completeness, we note that even if the court erred in finding that Haswell declined surgery, this would have no impact on the court's award because it based the termination of temporary total disability on Dr. Doran's opinion that surgery was unnecessary. The court stated that "[t]he Court finds that the period of temporary total disability ended on July 12, 2011, when Dr. Doran restated that he did not recommend a cervical fusion for [Haswell's] injury." We further note an error in the trial court's award in which it states in paragraph VI that "the date of [MMI] and the date temporary total disability ends is on July 21, 2011, which is Dr. Doran's last treatment date." It is apparent from the record, that Dr. Doran's last treatment date was July 12, 2011, not July 21. The trial court concluded that "[Haswell] was entitled to temporary total disability benefits through July 12, 2011, when Dr. Doran found that [Haswell] was not in need of further medical care."
(a) Finding That Haswell Reached MMI
Haswell argues that the trial court erred in finding he has reached MMI because he requires further surgery and he desires the surgery. "The date of [MMI] for purposes of ending a workers' compensation claimant's temporary disability is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident." Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 251, 753 N.W.2d 785, 798 (2008). Generally, whether a workers' compensation claimant has reached MMI is a question of fact. Id.
As stated above, the medical evidence as to the necessity of cervical surgery was conflicting. The trial court accepted Dr. Doran's testimony and records which support a finding of MMI on July 12, 2011. Haswell's assigned error as to this issue is without merit.
(b) Terminating Temporary
Disability Benefits
Haswell argues that he should continue receiving temporary disability benefits until he reaches MMI. Because the trial court did not err in finding Haswell has reached MMI, as explained directly above, this argument is without merit.
(c) Determining Permanent Disability
Haswell argues that it was improper for the trial court to determine Haswell's permanent disability because he is not at MMI for all of his injuries. Haswell is correct to assert that a trial court cannot determine permanent disability until a claimant is at MMI for all of his injuries. See Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232 (2005). However, we have concluded that the trial court did not err in finding that Haswell is at MMI for all of his injuries. As such, the trial court did not err in determining Haswell's permanent disability.
(d) Failure to Award Vocational
Rehabilitation Services
Haswell argues that the trial court erred in denying him vocational rehabilitation services because he is unable to find a suitable job. Because Haswell is physically capable of performing his current job, we find this error to be without merit.
Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the Workers' Compensation Court. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991). The findings of fact made by the Workers' Compensation Court on original hearing have the effect of a verdict and are not to be disturbed on appeal unless clearly wrong. Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 (1996).
The Workers' Compensation Court properly awards vocational rehabilitation benefits 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); Hagelstein v. Swift-Eckrich, 261 Neb. 305, 622 N.W.2d 663 (2001). See Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010). Even though a job may not be ideal, an employee is able to return to a job when he is physically able to perform it. See Stacy v. Great Lakes Agri Mktg., supra.
Despite Haswell's trial testimony that his duties at Midland Carrier require him to lift 100 pounds, during the FCE he told Bednar his job required him to lift only 50 pounds. In his FCE, Haswell has been limited to lifting 45 pounds above the waist, lifting 50 pounds below the waist, and occasional overhead lifting. The only task of which Haswell complains is the overhead lifting of the 20-pound chutes. The record does not reveal how often that occurs. Without this evidence, nothing in the record proves the physical requirements of Haswell's job exceed the requirements set forth in the FCE. Therefore, we cannot say the trial court erred in finding Haswell's current job to be suitable employment.
2. BANCINSURE'S CROSS-APPEAL
Bancsinsure cross-appeals the trial court's determination of the date of injury. The trial court found that Haswell was injured "suddenly and violently" in accordance with Neb. Rev. Stat. § 48-151(2) (Reissue 2010) and that the injury became worse with repetitive employment. The trial court determined Haswell's date of injury was August 10, 2010, because that was the first day he missed work. Bancinsure agrees that Haswell was injured "suddenly and violently" in an acute accident, but disagrees with the trial court's date of injury. Bancinsure alleges the date of injury was sometime in November 2009.
Determining the legal date of accident requires more than just determining the date when a physical trauma occurred. In order to be injured "suddenly and violently," under the terms of § 48-185(2), an employee must suffer an injury, seek medical treatment, and miss work. See Swoboda v. Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166 (2004). An injury may occur suddenly and violently even if it has "been building up for a considerable period of time and do[es] not manifest [itself] until [it] cause[s] the employee to be unable to continue his or her employment." Tomlin v. Densberger Drywall, 14 Neb. App. 288, 298, 706 N.W.2d 595, 606 (2005). The date the injury "manifests itself" is the date the employee first misses work.
Evidence showed that Haswell experienced a well-described injury sometime in late 2009 and that it continued to worsen over time. Haswell sought treatment months later but his injury did not prevent him from working until August 10, 2010. Because Haswell did not miss work due to his injury until August 10, 2010, the trial court did not err in determining his date of injury was August 10, 2010.
VI. CONCLUSION
The trial court did not err in (1) failing to order payment for surgery on Haswell's cervical spine, (2) finding Haswell had reached MMI, (3) terminating Haswell's temporary disability benefits, (4) determining Haswell's permanent disability, or (5) failing to award Haswell vocational rehabilitation services. Moreover, Bancinsure's cross-appeal is without merit because the trial court properly determined that Haswell's date of injury was August 10, 2010. As a result, we must affirm the judgment of the Workers' Compensation Court.
AFFIRMED.