DOYLE ENDORF, Plaintiff,
v.
CHIEF INDUSTRIES, INC., Defendant.
No. 1088
DOC 208
Nebraska Workers Compensation
March 29, 2010
Tony
J. Brock, Attorney at Law
Brock
Law Offices, P.C., L.L.O.
Mark
A. Fahleson Sarah S. Pillen, Attorneys at Law
AWARD
John
R. Hoffert, JUDGE
APPEARANCES:
THIS
CAUSE came on for hearing before the Nebraska Workers’
Compensation Court at Lincoln, Lancaster County, Nebraska, on
December 16, 2009, on the Second Amended 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 receipt
of briefs post-trial. The Court, having listened to the
testimony presented at trial; having evaluated the exhibits
introduced into evidence; having read the respective written
submissions of counsel last received on January 4, 2010; 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 were able to reach several stipulations,
to-wit: (1) that the plaintiff was employed by the defendant
on the date of his alleged accident of December 6, 2007; (2)
that the plaintiff gave notice to the defendant employer of
his alleged accident as soon as practicable as required by
Nebraska law; (3) that on the date of his alleged accident
the plaintiff was earning an average weekly wage of $895.21;
and (4) that venue was proper. The Court accepts the
stipulations of the parties and so finds.
The
plaintiff offered into evidence Exhibits 1 through 12. The
defendant objected to Exhibit 12 arguing that the
Medical Bill Index prepared by plaintiff’s attorney was
irrelevant. The Court overruled the objection indicating that
it would, of course, only consider relevant evidence when
deciding the issues before it. Consequently, Exhibits 1
through 12 were received into evidence.
The
defendant, in turn, offered into evidence Exhibits 13 through
24. The plaintiff had no objection to the tendered materials.
Hence, Exhibits 13 through 24 were received into evidence as
well.
II.
Given
the limited stipulations entered into by the parties, the
first issue for the Court to resolve at trial is the seminal
matter of determining whether or not the plaintiff suffered
an accident arising out of and in the course and scope of his
employment with the defendant on December 6, 2007. Both in
his Second Amended Petition as well as during direct
examination at trial, Mr. Endorf alleged that while in
defendant’s employ as a truck driver he fell from his trailer
while covering his load with a tarp. He landed squarely on
his feet and then fell to his knees owing to the momentum of
the fall. An ambulance was called and he was transported to
St. Mary’s Hospital & Medical Center in Grand Junction,
Colorado (E16).
The
plaintiff, it must be noted, appeared credible on the witness
stand in his description of the accident and its aftermath.
Support for plaintiff’s assertions can be found in the
Claimant’s Report required by and filed with his employer
within days of the accident (E14). Additionally, the
contemporaneous medical records generated at the time of
plaintiff’s admission to St. Mary’s Hospital & Medical
Center confirm plaintiff’s representations to the Court
(E16). While certainly under no obligation to prove or
disprove plaintiff’s claim of an accident, the Court also
observes that the defendant did not mount any serious
challenge to plaintiff’s testimony in this regard.
In any
event, the Court is satisfied that the plaintiff has carried
his burden of proof and persuasion and established that he
did, indeed, suffer an accident arising out of and in the
course and scope of his employment with the defendant on
December 6, 2007.
III.
To find
that one has sustained an accident under the Act is not to
necessarily conclude that an entitlement to benefits
necessarily follows. In other words, it is still incumbent
upon the claimant to establish that any claimed injury was
causally related to the accident sued upon. In his Second
Amended Petition, Mr. Endorf claimed that he suffered
injuries to his lower extremities as well as a stroke
allegedly flowing from those injuries. The stroke occurred
several weeks later, i.e. January 2, 2008.
All of
these injuries are, of course, subjective in nature.
Restated, they are not plainly apparent nor otherwise visible
to the casual or lay observer. Consequently, it is well
established under Nebraska law that an opinion from a medical
expert is necessary to prove the causal link between the
claimed injury(ies) and the accident at issue. Binkerd v.
Central Transp. Co., 236 Neb. 350, 461 N.W.2d 87 (1990);
Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408
N.W.2d 280 (1987); and, Hamer v. Henry,
215 Neb. 805, 341 N.W.2d 322 (1983).
For
ease of reference and given the approach adopted by the
parties in their post-trial written closing arguments, the
Court will first address the orthopaedic injuries to be
followed by the alleged stroke injury.
With
regard to his lower extremity injuries, the plaintiff has
offered into evidence the opinions of Dr. Donald J. Walla who
opined that the plaintiff’s injuries to the left patellar
tendon and medial tibial plateau, the right fibula, the right
ankle, and the MP joint of his right 4th and
5th toes were caused by his work-related accident
of December 6, 2007 (E5, p. 24). While...
