GERSON SAUL DEL CID ESCOBAR, Plaintiff,
v.
JBS USA, Defendant.
No. 0030
Doc. 216
Nebraska Workers Compensation
January 26, 2017
Plaintiff: Michael P. Dowd Dowd, Howard & Corrigan LLC
Defendant: Dallas D. Jones Baylor, Evnen, Curtiss, Grimit
& Witt
AWARD
Julie
A. Martin, Judge
This
cause came on for hearing before the Nebraska Workers'
Compensation Court in Omaha, Douglas County, Nebraska, on the
21st day of November, 2016, on the Petition of
plaintiff, Answer of defendant, and on the evidence. Judge
Julie A. Martin, 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, closing argument briefs received, cause
fully submitted on December 21, 2016, and the Court, being
fully advised in the premises, finds as follows:
I.
In his
Petition, plaintiff alleged that on or about June 25, 2015,
he sustained an accident and injury to his whole body arising
out of and in the course of his employment with defendant.
Specifically, plaintiff claimed that while picking up heavy
tenderloins, he began experiencing pain in his back that
eventually extended down his left leg. Defendant admitted
plaintiff was in its employ on the day in question but has
denied the nature and extent of plaintiff's disability
and alleged that his condition is the result of an inherent
condition not attributable to his employment.
In
support of his claim, plaintiff offered Exhibits 1, 2 and 4
through 23. As there are prior exhibits in the record,
Exhibits 1, 2, and 4 through 16 were re-marked by the Court
with an "A" following the number, e.g. 1A, 2A, and
so forth. Defendant objected to Exhibit 20 on the basis of
foundation and Exhibit 23 as to relevance. After having
reviewed the evidence, the Court overrules the objections.
Defendant offered Exhibits 24 through 39 to which no
objections were voiced. Hence, Exhibits 1A, 2A, 4A through
16A, and 17 through 39 are received into evidence.
Pursuant
to the Court's Order for Submission of Joint Pretrial
Memorandum, the parties reached the following stipulations:
1.
Venue is proper;
2.
Plaintiff was employed by defendant on or about June 25,
2015;
3.
Plaintiff suffered an accident on or about June 25, 2015;
4. Plaintiff provided sufficient notice regarding his
accident of June 25, 2015;
5. For purposes of temporary disability and permanent
disability, plaintiff had an average weekly wage of $749.33;
and
6. The sum of surveillance video taken was 90.5 hours.
The
Court accepts the stipulations of the parties and so finds.
The
issues set forth by the parties to be resolved by the Court
at the time of trial are:
1.
Whether plaintiff's alleged ongoing low back complaints
were caused by his accident;
2.
Whether plaintiff has reached MMI;
3.
Whether plaintiff incurred any temporary disability;
4. If plaintiff has reached MMI, has he sustained any
permanent disability as a result of his accident, and if so,
the nature and extent of his permanent disability;
5. Whether any unpaid medical expenses were necessary as a
result of plaintiff's accident, and
6. Whether plaintiff is entitled to future medical care as a
result of his accident.
II.
As the
accident is not in dispute, the first issue for the Court to
decide is whether plaintiff's alleged ongoing low back
complaints were caused by the June 25, 2015 accident. It is
plaintiff's burden to establish by a preponderance of the
evidence that the injury for which an award is sought arose
out of and in the course of employment. § 48-151(2);
Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754
(1992). Mr. Escobar's alleged injury to his low back is
subjective in nature, i.e. not plainly apparent nor visible
to the casual or lay observer. As a consequence, Nebraska law
provides that an opinion from a medical expert is necessary
to establish 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).
On June
25, 2015, plaintiff was working as a tenderloin puller for
JBS, which required him to pull tenderloins off a conveyor
belt and trim the meat. As the Court learned from a prior
hearing, the tenderloins could weigh up to 135 pounds. At
some point during his shift, plaintiff went to the bathroom
and his supervisor pulled tenderloins from the line and
placed them in a large bin. When plaintiff returned, he had
to bend over the bin, lift the tenderloins, and place them
back onto his work table. Videos taken during the course of
litigation depict plaintiff's activities that day. (E1A;
E2A). It was while he was doing this work that Mr. Escobar
claims he injured his back.
According
to the company nurse, plaintiff went to the health services
office that same day. Although she was in another room, she
heard someone talking very loudly and went out and
encountered plaintiff. She asked him if he was okay. He said
his back hurt, but that he was really upset about his
supervisor. She then questioned him again if he was hurt or
needed anything, and he told her no. She did not see him
again for a week and a half.
Plaintiff
returned to health services on July 7, 2015, with complaints
of dull pain in his low back. (E5A). The nurse documented
"no apparent distress. Ambulates slow/steady gait.
Demonstrates [full range of motion without complaints of]
pain or facial grimace. Sit/stand w/ease. Single leg raises
neg. Hates job, wants new job—wants to be moved—doesn't
want to bid." She treated him with medications and a
Biofreeze massage and returned him to work. (E26, p.1). The
nurse applied the same modalities the next two days, and then
referred him on for a doctor's appointment on July 14,
2014, as plaintiff claimed he was no better. (E26, p.2).
Plaintiff
reported to the doctor at WorkFit that his left low back pain
was a 10 out of 10; he denied any radiation down into his
leg. (E7A). Except for tenderness over the lower back, the
examination was normal. Plaintiff was given medication and
released to work. As his pain complaints did not improve
during a recheck the following week, plaintiff was placed on
work restrictions and referred for physical therapy. (E7A,
p.7). During the initial evaluation, the therapist noted
decreased lordosis and range of motion of the lumbar spine.
(E7A, p.8). At the last session of August 24, 2015, plaintiff
reported a decrease in his pain, and the therapist noted
improvement in his range of motion. (E8A). As he still
complained of pain in his left low back and hip, he was
referred to a physiatrist. (E7A, pp.16&17).
On
August 27, 2015, plaintiff sought treatment at the UNMC
emergency room for a reported two month history of constant
left-sided low back pain and paresthesias in his left leg
after lifting at work. (E9A). Examination revealed a large
flank ecchymosis of the left lumbar back and tenderness of
lower back but normal range of motion. The x-ray report
stated "Lumbar vertebrae are normal in height and
alignment. The intervertebral disc spaces are symmetric and
fairly well-preserved. SI joints are unremarkable."
(E9A, p.4). Plaintiff was given medication and told to follow
up with his regular doctor. The physician also discussed
additional physical therapy and an MRI but did not feel there
was any indication for the test at that time.
Dr.
Christopher Anderson, physiatrist, first saw plaintiff on
August 31, 2015, for 10 out of 10 left-sided lumbar spine and
gluteal pain that radiated into the right thigh. (E10A).
Pertinent examination findings were of normal bilateral hip
rotation, manual muscle strength of 4/5 in the left lower
extremity with giveaway weakness in all muscles tested,
rotation of the lumbar spine not well tolerated, and
tenderness to palpitation of the left lumbar paraspinal
muscles. Dr. Anderson's diagnosis was of left lumbar
radiculitis as a result of the June 25, 2015 work injury. He
ordered additional medications, an MRI, and no work for one
week. (E10A, pp.3&5).
A
subsequent note from the JBS nurse indicated that plaintiff
initially wanted the time off work until he heard he would
not be paid benefits. (E26, p.4). Therefore, at his request,
Dr. Anderson released plaintiff back to light duty work (no
lifting, pushing, or pulling greater than 20 pounds and...
