Opinion
No. A-11-489
02-28-2012
TROY LEE DULANEY, APPELLANT, v. DRIVERS MANAGEMENT, LLC, APPELLEE.
Michael J. Javoronok, of Javoronok & Neilan, for appellant. Daniel R. Fridrich, of Werner Enterprises, Inc., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
DULANEY V. DRIVERS MGMT.
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. Reversed and remanded with directions.
Michael J. Javoronok, of Javoronok & Neilan, for appellant.
Daniel R. Fridrich, of Werner Enterprises, Inc., for appellee.
INBODY, Chief Judge, and CASSEL and PIRTLE, Judges.
INBODY, Chief Judge.
INTRODUCTION
Troy Lee Dulaney appeals the determination of the Workers' Compensation Court review panel which reversed the trial court's finding that Dulaney sustained a permanent loss of earning power.
statement of facts
On July 11, 2007, Dulaney filed a petition in the Nebraska Workers' Compensation Court alleging that he sustained injury in an accident arising out of, and in the course of, his employment with Drivers Management, LLC (Drivers). On February 16, 2007, Dulaney was driving a 2006 Freightliner tractor trailer west on Interstate 80 when a strong gust of wind struck the side of the truck, causing the truck to slide off the Interstate, through the right-of-way of the fence into a pasture, and then jackknifing in between another fence and the service road. Dulaney sustained injuries to his C3-4 and C4-5; a C5-6 herniation; soft tissue injuries; various bumps, bruises, and abrasions; and a possible closed-head injury. Drivers filed an answer which generally denied Dulaney's allegations.
Prior to trial, the parties stipulated to various items, including that on February 16, 2007, Dulaney suffered an accident and injury in the course and in the scope of his employment with Drivers; that Dulaney was temporarily totally disabled from February 16, 2007, through July 15, 2009; and that Dulaney attained maximum medical improvement and was permanently disabled from July 16, 2009, with permanent functional impairment.
Dulaney testified that he was 56 years old and had been a truckdriver for 20 years prior to the February 16, 2007, accident. Dulaney explained that all of his previous employments involved physical labor. Dulaney testified that on the day of the accident, the weather was dangerous, but that he was nonetheless instructed by Drivers to take a load or be fired. After being transported to the hospital, Dulaney underwent immediate neck surgery resulting in a "solid fusion with eight screws [and] a plate." Thereafter, Dulaney experienced tingling in his fingers, fainting, blurred vision, slurred speech, and headaches. Dulaney testified that a scan indicated that he suffered from cubital tunnel disease in both arms for which he also underwent elbow surgeries. Dulaney explained that he still experiences pain in his neck and elbows and utilizes a "TENS unit" which shocks and relaxes his muscles. Dulaney also testified that he has experienced significant difficulties with unpaid medical bills, resulting in bill collections and judgments against him for those outstanding bills.
Dulaney testified that he did not believe he could work any of the jobs which he had in the past because he has difficulty sitting for 2 or 3 hours before it becomes very painful to remain seated. Dulaney testified that he lives on his mother-in-law's ranch and works for room and board. Dulaney's work entails the supervision and the maintenance and feeding of the 45 to 50 horses on the ranch, which work he explained he used to physically do himself but can no longer handle. Dulaney explained that after any amount of time, he becomes exhausted and will sleep for long periods of time. Dulaney also testified that he has become very explosive and angry. Dulaney testified that he did not believe that he could work 8 hours a day, 5 days a week, 50 weeks a year as a reliable employee.
The deposition of Dulaney's treating physician, Dr. Steven Joseph Beer was received at trial. Dr. Beer is the neurosurgeon who performed surgery on Dulaney on the day of the accident at the Cheyenne Regional Medical Center in Wyoming. Dr. Beer performed a decompression of Dulaney's neck with a fusion from C3 to C6 after determining that Dulaney had dislocated his neck. Dr. Beer testified that as of March 26, 2007, there was no evidence of a closed-head injury, other than Dulaney's suffering from headaches, which was consistent with a possible postconcussive syndrome. Dr. Beer also testified that Dulaney "did have a mild head trauma when he had this accident." Dr. Beer testified that Dulaney healed well from the surgery but suffered from numbness and tingling in his arms. In June 2007, Dulaney began to suffer from more headaches and was subsequently referred to Dr. Kurt Hopfensperger. Thereafter, Dr. Beer also diagnosed Dulaney with bilateral cubital tunnel syndrome, which Dr. Beer opined was a result of the February 16, 2007, accident. Surgery was performed on each of Dulaney's elbows, and Dr. Beer testified that at an April 22, 2009, examination, he felt Dulaney had reached maximum medical improvement for his neck and elbow injuries. In May 2009, Dr. Beer assigned Dulaney a work recommendation of no truckdriving, no lifting over 20 pounds, and only working for a time period of 4 hours per day for 5 days a week. Dr. Beer opined that in accordance with the American Medical Association Guides for evaluation of permanent impairment, Dulaney should be awarded a 30-percent impairment of the whole body.
Dr. Beer testified that he also diagnosed Dulaney with chronic pain syndrome and that Dulaney's depression, anger issues, and irritability may result from a component of posttraumatic stress as a result of the accident. Dr. Beer agreed that Dulaney would be limited in his employment options and would not be a reliable worker due to his physical limitations, chronic pain syndrome, depression, and the medications necessary to treat the chronic pain syndrome.
After the referral from Dr. Beer, Dr. Hopfensperger indicated in his physician notes that Dulaney was possibly suffering from an unrecognized concussion from the injury, in addition to chronic headaches as a combination of migraine-type headaches. Dulaney underwent an MRI, which indicated normal results in regard to the brain.
Dr. Anne Talbot, a licensed psychologist, evaluated Dulaney and opined that a mild traumatic brain injury was likely, but could not be clearly attributed to a diagnosis of postconcussion syndrome from the February 16, 2007, accident. Dr. Talbot indicated that the more likely causes of Dulaney's cognitive complaints were a result of a distraction from pain, the use of medications, and the influence of preexisting learning disabilities affecting coping skills. Dr. Talbot concluded that Dulaney's neuropsychological test results indicated a cognitive disorder, not otherwise specified, secondary to a possible mild traumatic brain injury from the February 2007 accident, also secondary to his chronic pain and medication regimen. Additionally, Dr. Talbot diagnosed Dulaney with depressive disorder, not otherwise specified, with a probable major depressive episode and chronic pain disorder.
Dr. Eric Sliteri, a licensed clinical psychologist, met with Dulaney on various occasions for pain management psychotherapy. Dr. Sliteri diagnosed Dulaney with pain disorder associated with both psychological factors (personality and coping style) and chronic, cervical, shoulder, and arm pain. Dulaney was further diagnosed with cognitive disorder deferred (postconcussion syndrome). Dr. Sliteri opined that "Dulaney's psychological testing suggests high levels of anxiety, depression and anger. He is experiencing significant difficulty in his adjustment to his persistent pain and the residuals of his brain injury."
The record also includes a synopsis from Dulaney's counselor, Mary Baer, who had been working with the family, which synopsis indicated that Baer had observed changes in Dulaney's mood since the February 16, 2007, accident and that Dulaney was becoming more easily angered and depressed and suffering from a worsened short-term memory.
Throughout the process of being evaluated by many medical professionals from the time of the accident through the date of trial, Dulaney was also evaluated by Dr. Mark H. Zacharewicz, a clinical neuropsychologist, for a neuropsychological evaluation related to ongoing symptom complaints by Dulaney. Dr. Zacharewicz reviewed Dulaney's medical records from Cheyenne Medical Specialist, P.C.; American Medical Response; Cheyenne Regional Medical Center; Wyoming Spine and Neurosurgery Associates; Wyoming Neurology; Smart Sports Medicine Center; Dr. Scott Primrack; Dr. Harlan R. Ribnik; Dr. Sliteri; Dr. Talbot; Laren Roper; and Baer. After his review of those records, Dr. Zacharewicz opined that Dulaney likely suffered a mild traumatic brain injury/concussion in the February 16, 2007, accident, but that Dulaney's symptom complaints also reflect a combination of effects associated with pain symptoms, sleep difficulties, psychological symptoms, medication recommendations, and preexisting learning difficulties. Dr. Zacharewicz indicated that Dulaney had most likely not reached maximum medical improvement for his head-injury-related symptoms. Dr. Zacharewicz explained that Dulaney was also suffering from a depression disorder related to the February 16 accident.
Dr. Primrack examined Dulaney in 2007, and again in 2009, and opined in his 2009 examination report that Dulaney sustained a 28-percent impairment of the whole person. Dr. Primrack indicated that there was some concern regarding a possible traumatic brain injury and that even though Dulaney did exhibit high levels of anxiety, depression, and anger, in Dr. Primrack's opinion, there was no specific permanent residual impairment for the brain injury and further that any restrictions imposed were for injuries suffered only to the cervical spine. Also, the progress notes from Dr. Ribnik indicated that he diagnosed Dulaney with traumatic brain injury and, on August 5, 2009, recommended that, based upon Dulaney's functional capacity examination, Dulaney could complete an 8-hour workday, in a medium category of work, with lifting limitations of less than 15 pounds.
Daniel Householder, the court-appointed vocational rehabilitation counselor, testified that in his report, he discussed two scenarios. Householder testified that in his first scenario, he did not include evidence of Dulaney's mental condition or preexisting conditions and instead focused solely on the physical disability. Householder testified that the second scenario set forth in the report was based upon Dulaney's vocational evaluations; psychological testing, which indicated cognitive disabilities; closed-head injury; temperament; and ability to hold gainful employment. Householder also considered the testimony of Dr. Beer that Dulaney would permanently suffer from chronic pain. Householder testified that he reviewed and primarily relied upon the reports of Drs. Sliteri, Zacharewicz, and Talbot in making his recommendations. The report indicates that Householder also utilized Dulaney's work history, medical records from seven additional medical professionals, a "SkillTran 'Pre Injury / Post Injury Analysis,'" and wage data.
Householder's report indicates that, even though Dulaney graduated from high school in 1971, he measured with a reading age level of 8 years 11 months. Postinjury, Dulaney scored in the extremely high range of emotional distress on the "global severity index" and was classified as a dysfunctional pain patient. On the "symptom checklist," Dulaney also had extremely high scores for obsessive-compulsive, anxiety, and hostility scales. The report details those medical reports reviewed, in addition to Dulaney's scores on various other evaluations and testing. The report indicates that should Dulaney be able to find employment, he should expect a loss of 55 to 59 percent; that he has a loss of 85 to 98 percent of access to procure work on his own as in the past; that his temperament and stamina limit his ability to hold a job; and that Householder questions Dulaney's ability to regularly perform tasks. The report concludes:
There is a lot of medical and psychological evidence in this case, some going in different directions. We also have . . . Dulaney's expression of his current abilities. The medical evidence by Dr. Ribnik and in Dr. Beer's deposition concluded that . . . Dulaney has reached MMI from his physical injuries and that the permanent work restrictions outlined by the FCE are valid. We have an IME by Dr. Primack [sic] that limits . . . Dulaney a little further than the FCE. We have academic results and recent test scores(Emphasis in original.)
that indicate that . . . Dulaney is generally below average academically speaking and that schooling was a challenge for him. We have psychologists and counselors alluding to the fact that . . . Dulaney continues to suffer from deep anger issues which have manifested in temper outbursts and demonstrate issues with frustration and concentration. I feel compelled to present a two case scenario.
1. If we follow the objective medical evidence in this case utilizing the work restrictions outlined by FCE and also factoring in Dr. Primrack's restrictions. . . . Dulaney has the capability to perform at [a] limited number of jobs as evidenced by his loss of access to the labor market and his potential loss of wages. I would also look at his ability to obtain and hold a job once obtained as being highly questionable in his case. Thus it would be my conclusion that . . . Dulaney would have a 65% to 70% loss of earning power.
2. I feel after looking at all the medical evidence, his residual pain complaints, . . . Dulaney's temperaments, his own perceptions of his capabilities and most importantly the testing evidence supported by the vocational testing and psychological testing; that . . . Dulaney falls into what is described as the Odd Lot Doctrine.
In Schlup v. Auburn Needleworks, Inc., 239 Neb.854, 479 N.W.2d 440 the Nebraska Supreme Court quoted Heiliger v. Walters, & Heiliger Electric, Inc.[,] 236 Neb. 459, 461 N.W.2d 565 (1990) and stated: "Total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well[-]known branch of the labor market. The essence of the test is the probable dependability with which the claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps.
Thus in scenario number two . . . Dulaney would be 100% disabled.
The trial court found that as a result of the February 16, 2007, accident, Dulaney was temporarily totally disabled from February 16, 2007, to July 15, 2009, and also sustained a permanent partial disability to the whole measured as a 100-percent loss of earning power. The trial court found that Dulaney suffered a neck injury and mild head injury and that Dulaney's ongoing cognitive complaints were the result of the February 16, 2007, accident in conjunction with his preexisting verbal learning disability. The trial judge found that Dr. Beer's records and deposition were consistent with the medical opinions that Dulaney was unable to work full time due to his chronic pain and physical limitations and that Dulaney experienced a 30-percent impairment to his whole body due to the cervical injury, including the cubital tunnel syndrome in both arms. The trial court further adopted Householder's recommendation that Dulaney suffered from a 100-percent loss of earning power and found that Householder's opinion was not rebutted by Drivers.
On July 30, 2010, Drivers filed an appeal to the three-judge review panel alleging that the trial court erred by relying on the opinion of Dr. Beer, by relying on Householder's report, and by finding that Dulaney was permanently and totally disabled. The review panel determined that, as a matter of law, the trial judge did not err by concluding that Dr. Beer's testimony supported a finding that Dulaney was unable to work full time due to his physical limitations and chronic pain. However, the review panel found that there was no competent evidence Dulaney suffered permanent injury or restrictions causally related to depression or a closed-head injury and that thus, it was error for Householder to rely upon those diagnoses in formulating earning power and was also error for the trial court to rely upon Householder's second scenario. The review panel found that "if [Householder] assumed the existence of permanent impairment or restrictions not shown to exist, the presumption [of the correctness of the court-appointed counselor was] rebutted." The review panel ordered that the case be remanded to the trial court to determine Dulaney's "permanent loss of earning power without reference to any assumed permanent impairment or restrictions secondary to depression or the alleged head injury." It is from this order that Dulaney has timely appealed to this court.
assignments of error
Dulaney assigns that the three-judge review panel erred (1) by failing to acknowledge the sufficiency of Dr. Beer's testimony alone to support a finding of total disability, (2) by disregarding the reasoning set forth in its opinion regarding expert opinions, (3) by disregarding evidence of disability for which no physical restrictions or impairments had been assigned, and (4) by disregarding Dulaney's testimony regarding disability.
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 or 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. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008); Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007). 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 finding 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. Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 803 N.W.2d 489 (2011). With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.
ANALYSIS
Essentially, Dulaney's assignments of error revolve around the review panel's reversal of the trial judge's loss of earning power based upon the court's adoption of Householder's second scenario in its conclusion that Dulaney sustained a 100-percent loss of earning power and that the review panel disregarded the conclusions of Dr. Beer.
Total disability in the context of workers' compensation law does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Meredith v. Schwarck Quarries, 13 Neb. App. 765, 701 N.W.2d 387 (2005). Whether an injured worker is totally disabled is a question of fact which may be reversed upon appeal only if the finding of the Workers' Compensation Court is clearly wrong. Brummer v. Vickers, Inc., 11 Neb. App. 691, 659 N.W.2d 838 (2003). An employee who is injured to the extent that the employee cannot perform services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for the services is nonexistent may be classified as totally disabled. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991). The test for a worker's employability after a compensable injury is whether the worker can compete in the open and normal labor market for the worker's services. Id. The compensation court can look at an employee's work-related injury, as well as his or her existing physical and academic limitations, in determining whether the employee is permanently disabled. Schlup v. Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992). Furthermore, although medical restrictions or impairment ratings are relevant to a workers' compensation claimant's disability, the trial judge is not limited to expert testimony to determine the degree of disability, but instead may rely on the testimony of the claimant. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).
Householder's report, as set out in the statement of facts, clearly sets forth the basis from which he makes his recommendations on both scenarios, which includes the medical records received into the record by the trial court. While it is true that there is no evidence in which a medical professional sets a specific number for a percentage of permanent impairment as a result of the injury to Dulaney's head during the February 16, 2007, accident, there is significant evidence in the record to support Householder's recommendation.
In June 2009, a functional capacity evaluation was conducted which concluded that Dulaney should consider other job options which would allow Dulaney to sit at a desk and perform work with appropriate modifications to deter neck and elbow pain. The evaluation indicates that Dulaney's pain would not limit his ability to drive a truck, but would "seriously impact" his ability to load and unload the truck, do over-the-road maintenance, and operate safely in the event of an emergency.
The trial court also heard testimony from Dulaney himself that he did not believe he could work any of the jobs which he had in the past because he has difficulty sitting for 2 or 3 hours before it becomes very painful. Dulaney testified that he lives on his mother-in-law's ranch and does some work for room and board. Dulaney supervises the maintenance and feeding of the 45 to 50 horses on the ranch, which he explained he used to physically do himself but can no longer do. Dulaney explained that, after any amount of time, he becomes exhausted and will sleep for long periods of time. Dulaney also testified that he has become very explosive and angry. Dulaney testified that he did not believe that he could work 8 hours a day, 5 days a week, and 50 weeks a year as a reliable employee.
Dr. Beer testified that there was evidence of a closed-head injury sustained in the February 16, 2007, accident; that Dulaney's headaches were consistent with a diagnosis of postconcussive syndrome; and that Dulaney's depression, anger, and irritability may be a component of posttraumatic stress syndrome. Dr. Hopfensperger diagnosed Dulaney with an unrecognized concussion even though Dulaney's MRI results indicated normal brain function. Dr. Talbot opined that a mild traumatic brain injury could not be ruled out for a diagnosis of postconcussion syndrome, but that most likely it was a part of Dulaney's cognitive complaints combined with distraction from pain, medication usage, and the influence of preexisting learning disabilities. Dr. Sliteri opined that Dulaney experienced difficulty as a result of the residuals of a brain injury and that Dulaney's counselor noted there had been significant changes in Dulaney's mentality since the February 16 accident. Dr. Zacharewicz similarly indicated that Dulaney suffered a mild traumatic brain injury/concussion in the February 16 accident and that he had not yet reached maximum medical improvement for that injury.
To the contrary of those determinations, the record also contains medical evidence that Dr. Primrack opined Dulaney did not suffer permanent residual impairment from the brain injury and that even though Dr. Ribnik noted a diagnosis of Dulaney for a brain injury in his physician notes, Dr. Ribnik opined Dulaney could return to work 8 hours a day, 5 days a week, with medium work and a less than 15 pounds lifting restriction.
When the record in a workers' compensation case presents conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court. Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007). The trial judge is entitled to accept the opinion of one expert over another. Id. The review panel, in ordering the trial court to determine Dulaney's loss of earning power without regard to Householder's second scenario, substituted its judgment for that of the trial court.
The issues of whether Dulaney sustained a permanent impairment, and the extent of such impairment, are questions of fact. See Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 194 (2002). Based upon our review of the record, we find that the record sufficiently supports the trial court's findings of fact, and we will not substitute our judgment for that of the trial court. The review panel erred by ordering the trial court to revisit its determination regarding loss of earning capacity.
Dulaney also argues that contrary to the findings of the review panel, Drivers failed to rebut the presumption set forth in Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010) regarding the opinion given by Householder, the court-appointed vocational rehabilitation counselor. Pursuant to § 48-162.01(3), a court-appointed vocational case manager's opinion is entitled to a rebuttable presumption of correctness. In addition to the information regarding the reports set forth above, Householder found that prior to Dulaney's injury, there existed 570 occupations in the Department of Transportation that Dulaney had occupational access to, and that postinjury, he had occupational access to only 11, resulting in a 98-percent loss for occupations of which Dulaney would have transferable skills. Householder also determined that prior to the accident, Dulaney had access to 3,100 unskilled occupations and only 460 postinjury, resulting in an 85-percent loss of unskilled jobs. Householder further opined:
I believe that virtually all of his occupational loss is unquestionably due to his personality changes post injury and physical limitations and the fact that he would need a job where he can basically work alone and not in frequent contact with people. This is further supported by the fact that I have reviewed the job openings posted through the Wyoming Job Network for Cheyenne and surrounding areas. There were 275 current openings . . . and after reviewing that list in detail I was not able to find one position that I felt [Dulaney] would be capable of doing.
Drivers did not submit a rebuttal report, nor did Drivers present any evidence or testimony which would otherwise rebut the conclusions reached by Householder. Furthermore, as we have already indicated, Householder's report is supported by the record. Therefore, we find that contrary to the determination of the review panel that the presumption had been rebutted, Householder's report was not rebutted and the trial court did not err by relying upon his report in its determination.
CONCLUSION
Under the deferential standard of review accorded to the factual determinations of a workers' compensation court trial judge, we find no clear error in the determination that Dulaney was permanently and totally disabled and had suffered a 100-percent loss of earning power as a result of the February 16, 2007, accident and injury. Accordingly, we reverse the review panel's order to remand the matter back to determine Dulaney's permanent loss of earning power and remand the cause with directions that the review panel affirm the trial court's decision in its entirety.
REVERSED AND REMANDED WITH DIRECTIONS.