Abrams v. Capstone Technologies, 090507 NEWC, 1538

• Case Date: September 05, 2007
• Court: Nebraska

SHARON ABRAMS, Plaintiff, v. CAPSTONE TECHNOLOGIES, Defendant. No. 1538 DOC 206 Nebraska Workers Compensation September 5, 2007           Brett McArthur, Attorney at Law           Abigail A. Wenninghoff, Jason A. Kidd, Attorneys at Law           ORDER           Ronald L. Brown, JUDGE          Defendant’s objection to the appointment of a vocational counselor to perform a loss of earning power evaluation was heard August 9, 2007. Counsel participated by telephone conference. Both counsel had submitted exhibits in advance of the telephone hearing. The Court received Exhibits 1 through 6.          The issue presented by the parties was whether plaintiff experienced any permanent whole body functional impairment and/or permanent physical restrictions that would entitle her to indemnity for a permanent loss of earning capacity versus scheduled member impairment. Dr. John Treves opined, "I do not think the radiculopathy is compressive in nature as her cervical MRI is essentially normal but this could be related to a stretch injury to the C5 root causing a right upper extremity persistent radiculitis. Concerning the relationship of her diagnosis and symptoms to her alleged work injury, I do not think that there is any injury to her cervical spine." (E1, p.1) He then provided a 5 percent whole body impairment rating, which seems inconsistent with his previous statement. To cloud the matter further, Dr. Treves concluded, "Lastly, concerning permanent restrictions, I do not think she has any restriction on her cervical spine." Dr. Treves’ opinion that the cervical condition "could be related" is not sufficient to establish causation of the alleged injury.          Dr. Jeffrey Thornton did provide a causation opinion regarding plaintiff’s right sided neck and arm pain in his report of March 20, 2007 (E3). However, he provided an impairment rating for the right arm only. Dr. Thornton confirmed his opinions in his deposition regarding causation, maximum medical improvement and the opinions expressed within his previous narrative report (E2: 14: 12-25; 15: 1-25; 16: 1-15)...