Opinion
No. A-19-823.
04-21-2020
TIM HAMILTON, APPELLANT, v. JBS HOLDINGS, APPELLEE.
Jon Rehm, of Rehm, Bennett, Moore & Rehm, P.C., L.L.O., for appellant. Charles L. Kuper and John T. Densberger, of Larson, Kuper, Wenninghoff, P.C., L.L.O., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion) 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: THOMAS E. STINE, Judge. Affirmed. Jon Rehm, of Rehm, Bennett, Moore & Rehm, P.C., L.L.O., for appellant. Charles L. Kuper and John T. Densberger, of Larson, Kuper, Wenninghoff, P.C., L.L.O., for appellee. MOORE, Chief Judge, and RIEDMANN and WELCH, Judges. RIEDMANN, Judge.
INTRODUCTION
Tim Hamilton appeals the Nebraska Workers' Compensation Court's order finding that he was not entitled to future medical benefits for his injuries and that he was not entitled to permanent disability benefits following his workplace injury in October 2017. Based on our review of the record, we affirm.
BACKGROUND
Hamilton suffered two injuries during his employment at JBS Holdings (JBS). In September 2015, Hamilton was injured when he slipped in a bathroom stall and injured his right arm. In October 2017, Hamilton slipped while descending stairs and injured his shoulders and neck. In April 2018, Hamilton filed a petition in the compensation court seeking benefits as a result of his September 2015 injury; however, according to the pretrial memorandum from June 2019, Hamilton was seeking benefits for both his September 2015 injury and his October 2017 injury. The pretrial memorandum also indicated that the contested issues for trial included the extent of Hamilton's injuries and disability, his entitlement to future medical care, payment of unpaid medical bills, and his entitlement to permanent disability. Because Hamilton's appeal pertains only to future medical care and his entitlement to permanent disability benefits for the October 2017 injury, we focus on those issues.
A trial was held in July 2019 at which Hamilton testified that he slipped while using the bathroom before his shift when he suffered the September 2015 injury. He saw Dr. Thomas Werner at JBS the week after he was injured. Werner referred Hamilton for an MRI of his shoulder, which showed that he had moderate degenerative joint disease in his right acromioclavicular joint. Werner subsequently diagnosed Hamilton with osteoarthritis in his right shoulder.
Hamilton next treated with Dr. Richard Cimpl in January 2016. Cimpl stated in his notes from that visit that Hamilton had arthritis in his right shoulder which was aggravated when he slipped. Cimpl further stated, "down the road [Hamilton] may require surgical intervention," and that if Hamilton's pain progresses he "may require a shoulder replacement." Hamilton saw Cimpl again in March 2016, and Cimpl again indicated that a shoulder replacement is something that Hamilton "may consider." Hamilton testified that he did not meet with an orthopedic surgeon, although Cimpl suggested that he do so.
Hamilton testified that after his September 2015 injury he was placed on light duty at JBS. His October 2017 injury occurred when he slipped while descending stairs during his shift, and he braced himself against the railing, injuring his shoulders and neck. He saw his family physician, Dr. Zachary Meyer, in November. Meyer recommended that he take pain medication and undergo physical therapy. Hamilton saw Meyer again later in November and in December, and Meyer ordered a CT scan and once again instructed Hamilton to undergo physical therapy. Hamilton next saw Meyer in June 2018 for a separate issue, but complained of soreness while he worked. Meyer noted that the CT scan which had previously been ordered did not reveal any damage, and that although Hamilton still had pain in his neck, Meyer stated, "at this time I have really nothing more to offer."
Hamilton testified that he was terminated from JBS in December 2017 for unrelated reasons. He obtained work through a staffing agency and indicated on his application that he did not have any work restrictions. At the time of trial, Hamilton was working at Overhead Door in Grand Island, Nebraska, which involved lifting boxes and pulling and assembling doors. He testified that he had pain in his shoulders, back, and neck while working, but was not under any work restrictions. To manage his pain, he took multiple pain medications and muscle relaxers per day.
JBS provided the court with an independent medical evaluation report from Dr. Jason Mickels performed in March 2019. Mickels referenced the MRI of Hamilton's shoulder from 2015 which showed moderate degenerative joint disease. He observed that Hamilton had significant arthritic changes in his right shoulder which predated the September 2015 injury; thus, Mickels opined that Hamilton did not suffer "any significant injury" as a result of his September 2015 fall. The report went on to indicate that Hamilton was working without restrictions. In the alternative, if he did suffer an injury in September 2015, he reached maximum medical improvement (MMI) in March 2016. Further, Mickels stated that Hamilton reached MMI for the October 2017 injury in January 2018, and that he did not require future medical care for either injury.
Following the trial, the compensation court found that Hamilton suffered compensable injuries in September 2015 and October 2017. Specifically, referencing the September 2015 injury, the court found that Hamilton sustained a temporary exacerbation of his underlying degenerative arthritis in his right shoulder and that he reached MMI in March 2016. The court further determined that Hamilton was not entitled to future medical care for either injury. Regarding Hamilton's September 2015 injury, the court determined that Cimpl's testimony that Hamilton "may" require future shoulder operations was not definite enough to award future medical care. Regarding the October 2017 injury, the court found there was insufficient evidence demonstrating Hamilton was in need of future medical care. Finally, the court determined that Hamilton was not entitled to permanent disability benefits for his October 2017 injury. Hamilton timely appealed.
ASSIGNMENTS OF ERROR
Hamilton assigns, restated, that the compensation court erred in failing to award him future medical benefits and in not awarding him permanent partial disability benefits as a result of his October 2017 injury.
STANDARD OF REVIEW
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016). Determinations by a trial judge of the Workers' Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in light of the evidence. Id.
If the record contains evidence to substantiate the factual conclusions reached by the trial judge in workers' compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).
ANALYSIS
1. FUTURE MEDICAL BENEFITS
Hamilton asserts that the compensation court erred in failing to order JBS to pay for his future medical care as a result of his injuries. We disagree.
Before an order for future medical benefits may be entered, there should be a stipulation of the parties or evidence in the record to support a determination that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease. Tchikobava v. Albatross Express, supra. Because there was not a stipulation between the parties regarding future medical benefits, we examine the record to determine if there was evidence demonstrating that future medical care will be reasonably necessary to relieve Hamilton of the effects of his injuries.
(a) September 2015 Injury
The compensation court determined that Hamilton was not entitled to future medical benefits because Cimpl's testimony was not sufficiently definite to demonstrate that Hamilton was in need of future medical care.
An award of future medical expenses requires explicit evidence that future medical treatment is reasonably necessary to relieve the injured worker from the effects of the work-related injury. Id. Expert medical testimony based upon "could," "may," or "possibly" lacks the definiteness required to support an award from the Workers' Compensation Court. Edmonds v. IBP, inc., 239 Neb. 899, 479 N.W.2d 754 (1992); Ladd v. Complete Concrete, 13 Neb. App. 200, 690 N.W.2d 416 (2004).
Here, Cimpl stated in his notes on multiple occasions that "down the road [Hamilton] may require surgical intervention," or "long term . . . he may require a shoulder replacement," and again ". . . a total shoulder arthroplasty, which I think at some point [Hamilton] may consider." Accordingly, the evidence in the record supports the court's conclusion that Cimpl's medical opinion lacked the required definiteness to support an award of future medical care.
On appeal, Hamilton asserts that, because Cimpl's opinion was that he may need future surgery if the pain in his arm continued, and because he testified that his arm continued to hurt, it is fair to infer that he needed shoulder surgery. However, Hamilton's testimony regarding his continued pain and his argument that he likely would need future surgery is in contrast to the other evidence before the court. Mickels' medical report indicated that Hamilton was not in need of future medical care. Moreover, the MRI of Hamilton's shoulder performed in November 2015 showed that he had moderate degenerative joint disease in his shoulder which predated his accident, and Werner diagnosed him with osteoarthritis. The compensation court found this evidence more credible than Hamilton's testimony, stating that he suffered a temporary exacerbation of his underlying degenerative arthritis in his shoulder.
The Workers' Compensation Court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018). Therefore, just because Hamilton testified that he continued to have pain in his shoulder did not require the court to order JBS to pay for future medical care, because the court found the more credible evidence indicated that Hamilton suffered a temporary exacerbation of his underlying degenerative joint disease as result of his September 2015 fall. Thus, the court did not abuse its discretion by failing to order JBS to pay for future medical care.
(b) October 2017 Injury
Regarding Hamilton's October 2017 injury, the court found that neither Meyer nor Mickels indicated Hamilton was in need of future medical care; therefore, Hamilton failed to sustain his burden of proof. The record supports the court's conclusion. Meyer stated in his notes from June 2018 although Hamilton continued to have neck pain, "I have really nothing more to offer." Likewise, Mickels opined that Hamilton reached MMI for the injury in January 2018, and that he was not in need of future medical care. Therefore, the compensation court's finding that Hamilton was not entitled to future medical care is supported by the record; consequently, it is not clearly wrong.
Hamilton asserts that the court ignored evidence indicating that Meyer stated that he required a CT scan, an FCE, as well as muscle relaxers and NSAIDS for his October 2017 injury. However, in its order, the court stated that, "if evidence contrary to the findings of this Court is contained in the record, but not discussed herein, said evidence was rejected or viewed as unpersuasive by the Court." Therefore, we presume that the court rejected or found unpersuasive Meyer's recommendations as a basis for future medical care. Accordingly, the record supports the factual conclusions reached by the court, and we will not substitute our view of the facts for those of the court.
Based on the record before us, the compensation court did not clearly err in finding that Hamilton was not entitled to future medical care for his injuries.
2. PERMANENT PARTIAL DISABILITY
Hamilton also argues that the compensation court erred in failing to award him permanent partial disability benefits as a result of his October 2017 injury. We disagree.
Whether a claimant has sustained disability which is total or partial and which is temporary or permanent is a question of fact. Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000). As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Frauendorfer v. Lindsay Mfg. Co., supra.
At trial Hamilton testified regarding his limitations following the October 2017 injury. He testified that he experiences pain in his shoulders in his current employment, but he does not have any work restrictions. Mickels' report indicated that Hamilton was not permanently disabled, and Meyer opined that Hamilton did not have any work restrictions. In its order, the court stated that it "is not persuaded by . . . [Hamilton's] own testimony that [Hamilton] has sustained any permanent impairment or permanent disability to his shoulders as a result of the work injury." The compensation court is the sole judge of witness credibility and the weight to be given to their testimony. Id. Given the conflicting testimony and the compensation court's assessment of Hamilton's credibility, its denial of benefits for permanent disability is not clearly erroneous.
Hamilton argues that a plaintiff can testify to the extent of their own disability, and that the mere fact that he could continue to work following his injury did not mean that he was not limited by his injuries. As we iterated above, the compensation court explicitly stated that it was not persuaded by Hamilton's testimony regarding the extent of his limitations following the October 2017 injury. Additionally, the evidence the court found persuasive, Mickels' report and Meyer's notes, indicate that Hamilton was not permanently disabled. Accordingly, we do not find that the court's determination that Hamilton was not entitled to permanent disability benefits was clearly wrong.
CONCLUSION
For the foregoing reasons, we affirm the order of the compensation court.
AFFIRMED.