Opinion
No. A-11-087.
12-20-2011
ROBERT VANCE, APPELLANT, v. SOUTHWEST AIRLINES, APPELLEE.
Mandy L. Strigenz, of Sibbernsen, Strigenz & Sibbernsen, P.C., for appellant Dennis R. Riekenberg and Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.
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 in part, and in part reversed and remanded with directions.
Mandy L. Strigenz, of Sibbernsen, Strigenz & Sibbernsen, P.C., for appellant
Dennis R. Riekenberg and Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.
INBODY, Chief Judge, and SIEVERS and PIRTLE, Judges.
INBODY, Chief Judge.
INTRODUCTION
Robert Vance appeals the order of the Nebraska Workers' Compensation Court review panel which reversed portions of the trial court's award of disability; specifically, the trial court's percentage determination of permanent partial disability and the order for payment of Vance's future medical expenses.
STATEMENT OF FACTS
Vance was injured in two separate accidents arising out of and in the course of his employment with Southwest Airlines (Southwest). On March 12, 2009, Vance filed a petition in the Workers' Compensation Court alleging that on February 20, 2007, while working as a ramp supervisor, Vance injured his neck and left elbow lifting heavy freight. The petition also alleges that on October 20, 2008, Vance injured his right elbow and right bicep tendon while lifting heavy freight and luggage.
As mentioned, Vance is employed by Southwest, and he has been a ramp supervisor for the last 18 years of his 21 years of employment with Southwest. Vance's employment entails supervision of the operation of the loading, unloading, and servicing of aircraft, including working with ramp agents, unloading baggage, loading and unloading cargo, and anything else associated with servicing the aircraft. Vance indicated that, typically, there are four supervisors because at least one supervisor is needed per shift, of which there are three shifts.
At trial, the parties stipulated that on February 20, 2007, Vance was involved in an accident in which he sustained injury to his neck and left elbow, which arose out of, and in the course of, his employment with Southwest. Vance was seen by Southwest's physician, Dr. Art West, who prescribed physical therapy for Vance's neck and left elbow injury. Physical therapy did not improve Vance's condition to his neck, but Vance was released back to work as there had been improvement in his left elbow. Due to Vance's continued neck pain, he sought further treatment with Dr. Douglas Long at Midwest Neurosurgery. Dr. Long's physician notes indicate that in July 2007, Vance continued to experience pain in his neck, left shoulder, and upper left extremity. On August 17, Vance underwent cervical surgery, after which, Vance was prescribed pain medications and physical therapy. On September 25, Vance reported increasing neck and shoulder pain and Dr. Long prescribed additional medications in addition to a refill of Vance's pain medications. On January 15, 2008, Dr. Long indicated that Vance had completed physical therapy and was "doing quite well." Dr. Long opined that Vance had reached maximum medical improvement and was to follow up as necessary. Vance was released to work without restrictions, although Dr. Long found that, according to the "AMA Guides to the Evaluation of Permanent Impairment, 5th Edition," Vance was rated at a 25-percent impairment rating to his body as a whole. This evidence was received by the trial court without objection. No other expert testimony or evidence was adduced by either party regarding impairment or loss of earning capacity.
Vance continued to suffer pain in his neck and returned to Dr. Long on April 22 and May 13, 2008. Vance reported to Dr. Long that he was suffering some left-sided neck pain, but not arm pain. Vance was prescribed pain medications and physical therapy. Vance testified that he has ongoing pain related directly to his neck, but Dr. Long's office has ceased prescribing medication to him since October 2009. Vance testified that he has gotten used to the pain and does not think about it. It is undisputed that Southwest has fully paid Vance temporary total disability benefits, permanent disability benefits, and medical expenses for the February 20, 2007, accident, and in his pretrial statement, Vance indicated that disability for this particular injury was not an issue because benefits had already been paid. Southwest's pretrial statement indicates that, for the February 20, 2007, accident, it had paid Vance 33 weeks of temporary total disability at $617 per week for a total of $20,361.01 and had also paid Vance $31,795.02 in permanent partial disability.
In May 2008, Vance also began to experience pain in his right elbow. Vance wore an arm brace to alleviate some of the ache in the elbow, but over the summer, Vance's pain increased. Vance also underwent an emergency appendectomy which left him absent from work from June 21 to July 27, 2008. Vance testified that the pain continued, but, due to a shortage of supervisors and the strain which his absence would cause to the other supervisors, he continued to work. In September 2008, Vance sought out treatment from his family physician, Dr. Nicholas Steier, and was prescribed pain medication and injections. Vance's pain persisted, and he was referred to Dr. Jack McCarthy, with his first appointment on October 20, 2008.
During his first appointment with Dr. McCarthy, Vance was given restrictions to lift no more than 3 to 5 pounds and was given a sling to wear. Vance reported the injury to Southwest on October 21, 2008. Vance participated in physical therapy for his arm; eventually, an MRI revealed a torn right bicep tendon and Vance underwent surgery to repair the tear. Dr. McCarthy's physician notes also revealed that on March 30, 2009, Vance indicated that he was suffering from soreness of his left arm, which continued through February 2010. Dr. McCarthy indicated that Vance reported experiencing left forearm pain consisting of varying degrees of tenderness. On April 27, Dr. McCarthy administered injections of Marcaine and Depo-Medrol to Vance's left arm, which continued over the next several appointments through February 25, 2010, which was the last appointment contained within the record. Vance was released to return to work on April 7, 2009. Vance continued to seek treatment with Dr. McCarthy, who, on August 10, 2009, opined that Vance had reached maximum medical improvement with a 10-percent partial impairment to the right upper extremity. Vance continues to work for Southwest, but still experiences pain in his right arm and testified that he continues to take anti-inflammatory medication for pain.
The trial court found that on February 20, 2007, Vance sustained a 25-percent permanent partial impairment of his body as a whole, and that as a result of the accident on October 21, 2008, Vance sustained a 10-percent permanent partial impairment to his right arm. The trial court found that Vance was entitled to $617 in benefits per week for temporary total disability benefits and a like sum for permanent disability benefits and that very few issues remained outstanding regarding the issues surrounding the February 20, 2007, accident, as the benefits and medical expenses incurred had been paid by Southwest. Likewise, the trial court found that Vance was entitled to $644 per week for the October 21, 2008, accident, for 24 2/7 weeks temporary total disability benefits and for a like sum each week for 22 4/7 weeks for a 10-percent permanent partial impairment to his right arm. The trial court ordered Southwest to pay for Vance's medical bills and for continued treatment and medical care for the symptoms relating to the injuries sustained in both accidents.
Southwest appealed to the review panel, alleging that the trial court erred in numerous ways, including by determining that Vance sustained a 25-percent permanent partial impairment of the body as a whole as a result of the February 20, 2007, accident; the trial court's findings regarding the October 21, 2008, accident; the award of future medical benefits without explicit evidence that future medical treatment was reasonably necessary; and the finding that Vance provided notice of the injuries as soon as practicable.
The review panel affirmed the trial court's finding that Vance suffered an injury on October 21, 2008. The review panel found that the trial court erred by awarding Vance a 25-percent permanent disability as a whole because, even though Vance's neurosurgeon indicated that Vance had suffered a 25-percent impairment to the body as a whole and had reached maximum medical improvement, the doctor had not issued any permanent restrictions for Vance. The review panel further found that there was no explicit evidence that future medical treatment was reasonably necessary and reversed the trial court's award of such. A dissenting opinion was also issued which opined that the trial court's order should be affirmed in all respects, with the exception of the award for benefits for future medical care for the February 20, 2007, accident. Vance has now timely appealed to this court.
ASSIGNMENTS OF ERROR
On appeal, Vance assigns that the review panel erred in reversing the trial court's award of a 25-percent permanent partial disability as a whole for the accident of February 20, 2007; in reversing the trial court's award for payment of future medical expenses for the accident of February 20, 2007; and in reversing the trial court's award for payment of future medical expenses for the accident of October 21, 2008.
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 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. Neb. Rev. Stat. § 48-185 (Reissue 2010).
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 court judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Tapia-Reyes v. Excel Corp., 281 Neb. 15, 793 N.W.2d 319 (2011). With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.
ANALYSIS
Permanent Partial Disability—February 2007 Accident.
Vance argues that the review panel erred by reversing the trial court's award of a 25-percent permanent partial disability to the body as a whole for the February 20, 2007, accident.
While the claimant has the burden to prove by a preponderance of the evidence that his or her employment proximately caused the injury which resulted in a compensable disability, the issue of causation of injury or disability is one for determination of the trier of fact. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 194 (2002); Bernhardt v. County of Scotts Bluff, 240 Neb. 423, 482 N.W.2d 262 (1992). Along with causation, the issue of whether the claimant has sustained a permanent impairment, and the extent of the impairment, are questions of fact. Green v. Drivers Mgmt., Inc., supra; Hoffart v. Fleming Cos., 10 Neb. App. 524, 634 N.W.2d 37 (2001). In testing the sufficiency of the evidence to support the findings of fact, the evidence must be considered in the light most favorable to the successful party. Green v. Drivers Mgmt., Inc., supra.
The term "impairment" is a medical assessment, while the term "disability" is a legal issue. Green v. Drivers Mgmt., Inc., supra; Jorn v. Pigs Unlimited, Inc., 255 Neb. 876, 587 N.W.2d 558 (1998). Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment. Green v. Drivers Mgmt., Inc., supra, citing Phillips v. Industrial Machine, 257 Neb. 256, 597 N.W.2d 377 (1999).
Both parties cite to the case Green v. Drivers Mgmt., Inc., supra, in support of their respective positions. In Green v. Drivers Mgmt., Inc., Stanley Green was injured in the course of his employment and was awarded temporary total disability and permanent partial disability. The trial court found that Green suffered a 50-percent loss of earning capacity, although no physician assigned a permanent impairment rating or gave Green any permanent physical restrictions. The Nebraska Supreme Court found that the trial judge committed clear error in making such a conclusion as there was no evidence in the record that Green suffered a permanent impairment. The court found that a workers' compensation award cannot be based on mere possibility or speculation and that if an inference favorable to the plaintiff can only be reached on the basis thereof, then he or she cannot recover. The court held that before permanent partial disability benefits can be awarded, the claimant must prove that he or she has a permanent impairment.
Without a finding of permanent medical impairment, there can be no permanent restrictions. Without impairment or restrictions, there can be no disability or labor market access loss. Absent permanent impairment or restrictions, the worker is fully able to return to any employment for which he or she was fitted before the accident, including occupations held before the injuries occurred.Id. at 206, 639 N.W.2d at 103.
Clearly, contrary to Southwest's argument, simply because there were no permanent restrictions placed on Vance, that does not conclusively prevent a finding of permanent partial impairment. Green v. Drivers Mgmt., Inc., holds that a prerequisite to an award of permanent disability is that there be permanent impairment, but the court did not hold that there must be disability before there can be an award of permanent impairment. The conceptual basis for this holding of Green v. Drivers Mgmt., Inc., is careful attention to the difference between impairment, fundamentally a medical concept, and disability, which at its core is a legal concept. We articulated this notion in our decision in Green v. Drivers Mgmt., Inc., 10 Neb. App. 299, 634 N.W.2d 22 (2001), reversed in part on other grounds, Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 194 (2002).
In the case at hand, the single judge found that Vance had sustained a 25-percent permanent partial impairment of his whole body as a result of the February 20, 2007, accident. Dr. Long assigned this percentage to Vance in accordance with medical guidelines, and Vance testified at length regarding the injury and his use of medication to treat the injury. In the trial court's award, there were very few findings of fact regarding this matter, as it appears from the record that, until Southwest's appeal to the review panel, the 25-percent impairment rating was not an issue. No objection was made to Dr. Long's findings and impairment rating, and no evidence was presented to rebut that evidence. There is nothing in the record that would suggest that the 25-percent impairment rating given by the trial court was based upon pure speculation. The issues of whether Vance sustained permanent impairment and the extent of such impairment are questions of fact for the trial court. See Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 194 (2002). Based upon our review of the record, we cannot say that the trial court was clearly wrong in making such determinations. As such, we find that the review panel erred by reversing the trial court's determination that Vance suffered a 25-percent permanent impairment to his body as a whole as a result of the injury of February 20, 2007.
Future Medical Expenses for February 20, 2007, Accident.
Vance argues that the review panel erred in reversing the trial court's award for payment of future medical expenses for the February 20, 2007, accident.
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. Adams v. Cargill Meat Solutions, 17 Neb. App. 708, 774 N.W.2d 761 (2009).
A review of the record indicates that over a lengthy period of time, Vance continued to participate in physical therapy and to take medications for pain in his neck resulting from the February 20, 2007, injury. Vance testified that immediately after the accident, he saw Dr. West, who prescribed physical therapy for the injury to the neck and left elbow. The injury to Vance's elbow improved with physical therapy, but eventually, Vance required surgery and further treatment for the injury to the neck. Dr. Long performed the surgery related to the neck injury and provided aftercare for Vance. Vance testified that although he continues to have ongoing pain related to his neck, he is no longer taking any medication for the neck pain because his physician, Dr. Long, was no longer prescribing any medication, and the record does not indicate that he has undergone any further treatment for his neck.
At trial, Vance did not indicate that he continued to suffer from any pain or problems related to the left elbow injury from February 20, 2007; but, in his brief, he indicates that he has had numerous visits with Dr. McCarthy, his treating physician for his right elbow injury that occurred on October 21, 2008, for his left elbow. The record reveals that on March 30, 2009, Dr. McCarthy first indicated that Vance reported having soreness in his left arm. No treatment for his left arm was indicated or discussed in the physician notes which focused on the progression of activity and working with Vance over time on the right elbow. On April 27, Dr. McCarthy again notes that Vance indicated "proximal forearm pain" on the left side but concluded that the pain was "not associated with any mechanical compromise." Dr. McCarthy recommended a tennis elbow strap for the right and left forearms, continued exercise, and injections of Marcaine and Depo-Medrol.
On May 21, 2009, Dr. McCarthy's notes indicate that "[r]elative to his left side, his lateral epicondylar discomfort has substantially improved with the injection." Dr. McCarthy again recommended that Vance be advanced to regular work activities. On July 13, Vance again complained of pain in the left proximal forearm which appeared to improve by the October 22 appointment on which Dr. McCarthy indicated that Vance had good functional range and that the arm was "not really tender." However, at that appointment, Dr. McCarthy administered an injection of Marcaine and Depo-Medrol to Vance's left "ECRB." Also at that appointment, Dr. McCarthy indicated that Vance could return to work "full duty with no restrictions." At appointments with Dr. McCarthy on January 14 and February 25, 2010, Vance reported "significant pain over his left proximal forearm . . . not associated with any trauma." At both appointments, Vance was administered injections of Marcaine and Depo-Medrol.
Thus, while the record indicates that Vance suffered from pain in his left arm and forearm, there was no evidence presented that this pain and treatment that necessarily followed was caused by the February 20, 2007, accident. The record contains no evidence that would link the left arm pain which first arose at the appointment with Dr. McCarthy in March 2009, to the left elbow injury in February 2007. Furthermore, Dr. Long had ceased to prescribe any further treatment or pain medication for Vance's injury to his neck. Therefore, we find that the trial court was clearly wrong by ordering Southwest to continue to provide for future medical expenses for the February 20, 2007, injury to the neck and left elbow without explicit medical evidence that future treatment is reasonably necessary, given that the injury was a subjective injury requiring expert medical opinion. See Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991) (holding that unless character of injury is plainly apparent, workers' compensation claimant's injury is subjective condition, and expert opinion is required to establish causal relationship between incident and injury as well as any claimed disability consequent to such injury). We find that this rule would naturally extend to the question of whether future medical treatment is required when the injury at issue, as here, is a subjective injury.
Future Medical Expenses for October 21, 2008, Accident.
Similarly, Vance argues that the review panel erred in reversing the trial court's award for payment of future medical expenses for the October 21, 2008, accident.
Keeping in mind the preceding analysis, our review of the record reveals that Vance continues to see Dr. Steier for pain in his right elbow. On August 10, 2009, Dr. McCarthy recommended that Vance continue to see Dr. Steier and to monitor possible side effects. Vance further testified that he continues to take anti-inflammatory medication for his right elbow. Thus, the record clearly contains explicit evidence that future medical treatment is necessary and, as such, the trial court was not clearly wrong by ordering that Southwest pay Vance's future medical expenses relating to the October 21, 2008, injury. The review panel erred by ordering that this portion of the award be reversed.
CONCLUSION
In conclusion, we find that the trial court was not clearly wrong in its determination that Vance suffered a 25-percent permanent partial impairment as a result of the February 20, 2007, accident and also in its order that Southwest pay future medical expenses for the October 21, 2008, accident. We do find that the trial court erred by ordering Southwest to pay for future medical expenses for the February 20, 2007, accident without any evidence to support said order. Therefore, we reverse the review panel's decision that the trial court erred in its determination regarding permanent partial impairment and future medical expenses for the October 21, 2008, accident, and remand the cause to the review panel with directions to reverse those determinations in accordance with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.