CANDICE DAVIS, Plaintiff,
v.
CROWELL MEMORIAL HOME, Employer,
and
FIRSTCOMP INSURANCE COMPANY, Insurance Carrier, Defendants.
No. 1818
DOC 206
Nebraska Workers Compensation
August 24, 2007
Leif
D. Erickson, Attorney at Law
Benjamin E. Maxell , John R. Timmermier, Attorneys at Law
AWARD
Michael P. Cavel, JUDGE.
This
cause came on for hearing before the Nebraska Workers'
Compensation Court at Blair, Washington County, Nebraska, on
August 13, 2007, on the pretrial order of August 6, 2007, and
on the evidence, Judge Michael P. Cavel, one of the judges of
said court, presiding. The plaintiff appeared in person and
was represented by counsel. The defendants were represented
by counsel. Testimony was taken, evidence adduced, cause
submitted, and the Court, being fully advised in the
premises, finds as follows:
I.
The
parties have stipulated, and the Court finds, that Candice
Davis was employed by Crowell Memorial Home on April 7, 2005,
at an average weekly wage of $454.05 ($496 for the purpose of
calculating entitlement to permanent disability) and suffered
injury by accident that date arising out of and in the course
and scope of her employment. The parties also stipulated, and
the Court finds, that FirstComp Insurance Company was the
workers’ compensation insurer in Nebraska of Crowell Memorial
Home on April 7, 2005.
II.
The
first issue for the Court to resolve concerns the extent and
duration of any temporary disability caused by the
plaintiff’s accident of April 7, 2005. When the plaintiff was
seen at the Blair Clinic on April 8, 2005, her complaints
dealt with her right shoulder. When she was seen on
April 11, 2005, her complaints included right neck pain
laterally. On April 12, 2005, she was restricted from lifting
over 10 pounds, from using her right arm, and from repetitive
neck movement. These restrictions are reflected on page 5 of
Exhibit 1.
On
April 27, 2005, the plaintiff received a letter from Penny
Cavin, a claims adjuster with FirstComp Insurance, denying or
declining the plaintiff’s claim for workers’ compensation
benefits. At the time of trial, the Court heard testimony
from Prudence Cemer, the director of nursing at Crowell
Memorial Home, to the effect that workers’ compensation
injuries to Crowell employees are accommodated, but if an
injury is not a work related injury, the restrictions are not
accommodated. A copy of Ms. Cavin’s letter to the plaintiff
of April 27, 2005, was sent to Crowell Memorial Home and Ms.
Cemer expected that the letter would have been routed to
Terry Wulf, an administrative assistant at Crowell who
handled workers’ compensation matters. Ms. Cemer also
testified that Ms. Wulf would have been the individual
at Crowell who would have assigned employees with work
related restrictions to light duties accommodating those
restrictions. In June, Crowell took the position that the
plaintiff had abandoned her employment because she had...
