Barker v. Champion Home Builders, Inc., 032719 NEWC, 1402

Case DateMarch 27, 2019
CourtNebraska
JACKIE BARKER, Plaintiff,
v.
CHAMPION HOME BUILDERS, INC. AND THE INSURANCE COMPANY OF STATE OF PENNSYLVANIA, Defendants.
No. 1402
Doc. 217
In The Nebraska Workers’ Compensation Court
March 27, 2019
          Plaintiff: Jamie Gaylene Scholz Attorney at Law Miner, Scholz & Associates, PC, LLO           Defendants: Seth M. Jurcyk Attorney at Law McAnany, Van Cleave & Phillips, PA           AWARD           THOMAS E. STINE JUDGE.          This cause come on for hearing before the Nebraska Workers’ Compensation Court at York, York County, Nebraska, on March 14, 2019, on the Joint Pretrial Conference Memorandum dated February 28, 2019 (E6), and on the evidence, Judge Thomas E. Stine, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendants were represented by counsel. Testimony was taken, evidence adduced, cause submitted, and the Court being fully advised in the premises finds as follows:          INTRODUCTION          I.          On February 17, 2017, plaintiff was injured in an accident arising out of and in the course of her employment with defendant. Plaintiff sustained an injury to her left ankle. Defendants accepted compensability of the work accident and paid various workers’ compensation benefits. The parties stipulated that the only issues remaining for trial are whether the compounded topical medication cream (topical medication) prescribed by Dr. Phillip Essay meets the requirements of Neb. Rev. Stat. § 48-120, and whether plaintiff is entitled to an attorney’s fee for defendants’ failure to authorize payment for the topical medication. For the reasons set forth below, the Court finds the topical medication is reasonable and necessary medical care related to the work accident, and that plaintiff is entitled to an attorney’s fee for defendants’ failure to authorize payment for the topical medication.          At trial, plaintiff offered Exhibits 1 through 4, and defendants had no objections. Exhibits 1 through 4 were received into evidence. Defendants did not offer any evidence in addition to Exhibits 1 through 4. The Court took judicial notice of the December 18, 2018, Amended Notice of Trial and Pretrial Order (E5), and the February 28, 2019, Joint Pretrial Memorandum (E6). Neither party had any objections, and Exhibits 5 and 6 were received into evidence. Pursuant to Exhibit 6, the parties entered into the follow stipulations:
1. Venue is proper in York, York County, Nebraska.
2. Jurisdiction is proper with the Nebraska Workers’ Compensation Court.
3. Plaintiff was employed by defendant, Champion Home Builders, Inc. on February 17, 2017, when she met with accident and injury to her left ankle arising out of and in the course and scope of her employment with defendant, Champion Home Builders, Inc., for which she is entitled to benefits under the Nebraska Workers’ Compensation Act from defendants.
4. On February 17, 2017, plaintiff’s average weekly wage was $488.50 for permanent disability purposes and $467.22 for temporary disability purposes.
5. Notice, as contemplated by Neb. Rev. Stat. § 48-133, was timely given by plaintiff.
6. Plaintiff is entitled to temporary total disability from February 17, 2017, to May 24, 2018; plaintiff is entitled to a further period of temporary total disability while participating in formal retraining from January 7, 2019, to May 15, 2020, as outlined in the Court-approved vocational rehabilitation plan.
7. Plaintiff reached maximum medical improvement on May 25, 2018, and sustained a 27 percent permanent impairment to her left foot for which plaintiff is entitled to permanent partial disability benefits of $325.67 for 40.5 weeks.
8. Plaintiff has permanent work restrictions as a result of her accident and injury of February 17, 2017, which are outlined in the functional capacity evaluation completed by Makovicka Physical Therapy on June 20, 2018, and subsequently adopted by Phillip Essay, MD.
9. Plaintiff is entitled to a period of formal retraining from January 7, 2019, to May 15, 2020, as outlined in the Court-approved vocational rehabilitation plan.
10. Plaintiff is entitled to future medical expenses as set forth in Neb. Rev. Stat. § 48-120.
11. Defendant is entitled to a credit for benefits paid.
At trial, the parties stipulated to the following additional fact:
12. If the Court finds that attorney’s fees are warranted, then the parties stipulate that a fair and reasonable amount of attorney’s fees is $1,500.00.
         The Court reviewed the evidence and finds the stipulations to be fair and reasonable, and that they are not contrary to good morals or public policy. The Court finds the parties are bound by the stipulations voluntarily made, and that there are no exceptional circumstances such to allow either party relief from the stipulations. The Court will enforce the stipulations, as good cause has not been shown for declining to do so. See, Cervantes v. Omaha Steel Castings, Co., 20 Neb.App. 695, 703, 831 N.W.2d 709, 715...

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