Bosse v. Advance Services Inc., 042516 NEWC, 0038

• Case Date: April 25, 2016
• Court: Nebraska

KIM EDWARD BOSSE, Plaintiff, v. ADVANCE SERVICES INC., Defendant. No. 0038 Doc. 216 Nebraska Workers Compensation April 25, 2016           ORDER           Tom Stine, Judge.          This matter came on for hearing on April 20, 2016, on plaintiff's Motion to Compel Vocational Rehabilitation Counselor to Perform Loss of Earning Capacity Evaluation. Plaintiff offered Exhibits 1-5 in support of his motion, and defendant had no objections. Exhibits 1 through 5 were received for purposes of plaintiff's motion. Defendant offered Exhibit 6 in opposition to plaintiff's motion, and plaintiff had no objections. Exhibit 6 was received for purposes of plaintiff's motion. Plaintiff requests an order from this Court compelling the court-appointed vocational rehabilitation counselor to perform a loss of earning capacity evaluation.          Plaintiff sustained an injury to his right lower extremity as a result of an accident arising out of and in the course and scope of his employment with defendant. (E3). Dr. Philip M. Cahoy found that plaintiff incurred 37 percent impairment to his right lower extremity as a result of the work injury. Id. On August 24, 2015, Cahoy found plaintiff reached maximum medical improvement from his injuries, and sent plaintiff for a functional capacity examination (FCE) to determine plaintiff's return to work abilities. (E1). An FCE was performed on October 13, 2015. (E2).          The FCE examiner determined plaintiff was able to work in the light to medium physical demand category. (E2:5). With respect to plaintiff's functional capabilities, the examiner stated:

[Plaintiff] demonstrated limitations in certain postures. It is recommended that he avoid kneeling and crawling. Additionally, bending and stooping, squatting, crouching, and use of stairs should be engaged in on a minimal basis only. All activity that requires walking should be done such that he can use a cane in his left upper extremity. Walking is recommended on an occasional but moderate distances. Stationary standing can be engaged in up to 60 minute durations but he should have regular rest or position changes after this. Sitting did not show any significant limitations however he should be allowed regular position changes and be allowed the ability to reposition his right leg. Regarding material handling capabilities, it is recommended that [plaintiff] does not engage in frequent carrying with bilateral upper extremities secondary to the need to use a cane during all gait activity. Lifting can be engaged in according to the capacity that he demonstrated and the recommendations that are listed below.

(E2:1). The examiner also documented that plaintiff's maximum carrying ability for his right upper extremity is 10 pounds, with frequent carrying ability at five to eight pounds. (E2:2). It was also recommended that plaintiff not carry items with his left upper extremity while walking secondary to plaintiff's need to utilize a cane with his left upper extremity. Id. Plaintiff uses a cane to ambulate because of the injury to his right lower extremity. (E3:2).          The examiner detailed that plaintiff can work eight hours per day, with four hours spent sitting and four hours spent standing, and two to three hours may be spent walking. (E2:3). The examiner remarked that plaintiff has the ability to lift up to 55 pounds with both hands on an occasional basis, and up to 30 pounds on a frequent basis. (E2:3). The examiner found plaintiff is able to occasionally push 106 pounds and frequently push up to 50 pounds, and that plaintiff is able to pull 82 pounds occasionally, and frequently 50 pounds. (E2:4). Finally, the examiner determined plaintiff has no restrictions in either of his upper extremities with respect to reaching, firm grasping, and light grasping. (E2:4).          Based on the results of the FCE, plaintiff requested that a vocational rehabilitation counselor be appointed to provide vocational rehabilitation benefits to plaintiff, and also perform a loss of earning capacity analysis. (E4). Mr. Dustin Russell was appointed by the Court to provide...