RANDY CHAMBERLAIN, Plaintiff,
v.
TS TECH AMERICAS, INC., d/b/a TRI-CON INDUSTRIES, LTD, Defendant.
No. 0020
Doc. 216
Nebraska Workers Compensation
February 3, 2017
Plaintiff: Justin W. High High & Younes
Defendant: James D. Garriott Cassem, Tierney, Adams, Gotch
& Douglas
AWARD
John
R. Hoffert, Judge
THIS
CAUSE came on for hearing before the Nebraska Workers'
Compensation Court atLincoln, Lancaster County, Nebraska, on
November 23, 2016, on the Petition of the plaintiff, Answer
of the defendant and on the evidence, Judge John R.
Hoffert, one of the judges of said court, presiding.
Plaintiff appeared in person and was represented by counsel.
Defendant was represented by counsel. Testimony was taken,
evidence adduced, and cause submitted with the receipt of
briefs post-trial.
The
Court, having listened to the testimony presented at trial;
having evaluated the exhibits received into evidence; having
had the benefit of the written closing arguments of counsel
last received on December 8, 2016, and, being otherwise fully
advised in the premises, finds as follows:
I .
Prior
to the presentation of oral testimony, the parties advised
the Court that they had reached several stipulations, to-wit:
(1) that the plaintiff was employed by the defendant on the
date of his alleged accident of September 24, 2014; (2) that
the plaintiff did, indeed, sustain an accident arising out of
and in the course and scope of his employment with the
defendant on September 24, 2014, resulting in injuries to
both of his knees; (3) that notice of plaintiff's
accident and injury was not at issue; (4) that there were no
outstanding medical bills through the date of trial that the
defendant had not paid already; (5) that the plaintiff was
making no claim for any temporary total disability benefits
through the date of trial; and (6) that venue was proper.
The
Court accepts the stipulations of the parties and so finds.
The
plaintiff offered Exhibits 1 through 56 and 66-67 into
evidence. The defendant voiced no objection to the receipt of
the tendered materials.
Hence,
plaintiff's Exhibits 1 through 56 and 66-67 were received
into evidence.
The
defendant, in turn, offered Exhibits 57 through 65 into
evidence. The plaintiff made a global objection to the
exhibits arguing that they were duplicative or otherwise
irrelevant. The Court overruled the objections.
Hence,
defendant's Exhibits 57 through 65 were received into
evidence as well.
Pursuant
to the agreement of the parties, the Court has reviewed the
deposition objections set forth in Exhibit 52 post-trial and
hereby overrules the same.
II.
Given
the various stipulations of the parties, the first issue for
the Court to resolve at trial is the determination of the
nature and extent of injury(ies) sustained by the plaintiff
in the stipulated accident of September 24, 2014.
Both in
his Petition as well as during direct examination at trial,
Mr. Chamberlain contends that he suffered injuries to his
head, neck, back, upper extremities and lower extremities.
While the assertions of injury are broadly made by plaintiff,
the only persuasive evidence offered in the matter concern
plaintiff's knee injuries. In other words, the medical
evidence is such that the only injuries which the fact-finder
believes to be noteworthy and deserving of analysis concerns
plaintiff's bilateral knees.
The
plaintiff's claim of injuries to his knees is, of course,
subjective in nature. In other words, they are not plainly
apparent nor visible to the casual or lay observer. As a
consequence, Nebraska law clearly provides that an opinion
from a medical expert is necessary to establish both the
nature of the injury and its causal connection to the
accident sued upon. Mendoza v. Omaha Meat
Processors, 225 Neb. 771, 408 N.W.2d 280 (1987);
Hamer v. Henry, 215 Neb. 805,
341 N.W.2d 322 (1983); Mack v.
Dale Electronics, Inc., 209 Neb.
367, 307 N.W.2d 814 (1981).
In this
regard, the plaintiff has referred the Court's attention
to the opinions offered by not only his treating physician
but also by defendant's examining expert.
A
sampling of those opinions follows.
First of all, it is clear to me that Mr. Chamberlain had
substantial pre-existing degenerative disease within both
knees that predated his accident of September 24, 2014.
However, historically, and without any information to the
contrary, it would appear that the patient did indeed at a
bare minimum aggravate the pre-existing degenerative change
within both knees. In addition, the patient had an abrasion
to his left elbow (this is identified in Dr. Rector's
note) and by the history provided by the patient during our
September 8 office visit. He indicates he sustained injury
to his head, neck, and low back, in addition to the elbow
and knees.
Obviously, meeting
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