SHYLA FUNK, Plaintiff,
v.
STERLING TRANSPORTATION SERVICES, INC., AND ACUITY MUTUAL INS. CO., Defendants., DOC: 216 NO: 0808, AWARD
No. 0808
Doc. 216
Nebraska Workers' Compensation
March 16, 2021
\
Plaintiff: Shyla Funk Self-Represented Litigant
Defendants: JohnW. Iliff Gross & Welch, PC, LLO
AWARD
JOHN
R. HOFFERT, JUDGE
THIS
CAUSE came on for hearing before the Nebraska Workers'
Compensation Court at Lincoln, Lancaster County, Nebraska, on
January 19, 2021, on the (Amended) Petition of the plaintiff,
Answer of the defendants and on the evidence, Judge John R.
Hoffert, one of the judges of said court, presiding.
Plaintiff
appeared in person and was not represented by counsel.
Defendants were 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; having
reviewed the exhibits received into evidence; having had the
benefit of the written closing arguments of the parties last
received on March 2, 2021; 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 employer
on the date of her alleged accidents of January 7, 2016, and
March 9, 2016; (2) that on the date of her accident of
January 7, 2016, the plaintiff earned an average weekly wage
(AWW) of $665.00 for purposes of calculating her entitlement,
if any, to both temporary total and permanent disability
benefits; (3) that on the date of her accident of March 9,
2016, the plaintiff earned an AWW of $627.19 for purposes of
calculating her entitlement, if any, to both temporary and
permanent disability benefits; and, (4) that venue was
proper.
The
Court accepts the stipulations of the parties and so finds.
The
plaintiff offered Exhibits 12 through 20 into evidence. The
defendants made numerous objections to the receipt of the
offered materials. The Court by separate order dated February
1, 2021, ruled upon those objections. To summarize, the
defendants’ objections to Exhibit 14, pages 1 and 2, on
relevancy grounds as well as their objections to pages 5
through 25 of Exhibit 16 on claims of hearsay are sustained.
Otherwise, plaintiff’s Exhibits 12 through 20 were
received into evidence, except for the above identified pages
of Exhibits 14 and 16.
The
defendants, in turn, offered Exhibits 21 through 47 into
evidence. The plaintiff objected to the reports of
defendants’ medical experts as found in Exhibits 28,
30, and 31, arguing that they lacked relevancy and
credibility. The Court overruled the plaintiff’s
objections. A further challenge was made to Exhibit 47 on
what the Court understood to be relevancy grounds. That
objection was also overruled.
In sum,
defendants’ Exhibits 21 through 47 were received into
evidence.
II.
Given
the limited number of stipulations entered into by the
parties, the first issue for the Court to resolve at trial is
the all-important matter of determining whether or not the
plaintiff sustained accidents arising out of and in the
course and scope of her employment with the defendant
employer on January 7, 2016, and March 9, 2016.
Both in
her Petition as well as during direct examination at trial,
Ms. Funk [also identified as Shyla Horowitz in the exhibits
owing to her marriage during the pendency of this matter]
alleged that on January 7, 2016, she slipped and fell while
in the loading bay at a Cargill plant. As described with more
particularity in Exhibit 16, pages 1 and 2, the plaintiff
contends that she fell in a twisting motion while trying to
grab onto her trailer for support. Her hard hat flew across
the loading bays as she impacted the ground. As a result of
the slip and fall of January 7, 2016, the plaintiff contends
she suffered traumatic injuries to her right shoulder, arm,
and wrist.
On
March 9, 2016, the plaintiff contends that while again in the
course and scope of her employment with the defendant
employer, she was injured when a bar from bent trailer came
back and struck her in the right shoulder.
The
defendants in their Answer to Plaintiff’s First Amended
Petition denied these various allegations.
Having
listened to the testimony of the plaintiff as well as having
reviewed various contemporaneous medical records surrounding
the accidents under review, the Court is satisfied that the
plaintiff has carried her burden of proof and persuasion
establishing that she suffered accidents arising out of and
in the course and scope of her employment with the defendant
employer on both January 7, 2016, and March 9, 2016.
In
accepting the testimony of Ms. Funk as credible, the Court
considered such factors as her interest in the outcome of
this matter; her general demeanor; her apparent fairness
exhibited on cross-examination; and, as noted, the extent to
which her testimony was deemed to be corroborated by various
contemporaneous written records. The photographic evidence
taken on the day of the accident and submitted by the
plaintiff (E13, pp. 1-3) also lent credibility to her
testimony. Additionally, her history to her medical care
provider on the very date of her accident of January 7, 2016,
served to also provide documentary support for her claim.
(E13, pp. 11-16).
While
certainly under no obligation to do so, the defendants did
not appear to seriously contest the plaintiff’s claim
of having sustained work accidents on January 7 and March 9
of 2016.
In sum,
the Court finds that Ms. Funk sustained accidents on each of
the dates alleged in her pleadings and as reiterated during
her direct examination at trial.
III.
Having
determined that the plaintiff sustained accidents on the
dates alleged serves only to satisfy one half of the
necessary equation to trigger the awarding of benefits under
the Nebraska Workers’ Compensation Act. In other words,
one must not only satisfy the requirement that an accident(s)
was sustained, but also that an injury(ies) resulted.
As far
as the Court is able to determine from the plaintiff’s
testimony as well as the medical opinions offered by numerous
experts, the injuries claimed by the plaintiff were such that
a clear division of accountability as to which accident
specifically caused which injuries cannot be determined.
Restated, the accidents at issue both involved a physical
insult to plaintiff’s right upper extremity. In
addition to these musculoskeletal injuries, the plaintiff
contends that she also eventually developed complex regional
pain syndrome (CRPS) as a result of the accidents and
injuries at issue.
The
injuries claimed by the plaintiff are, of course, subjective
in nature. In other words, they are not plainly apparent nor
visible to the causal 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(s) 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 Dr. Michael J. Vener
(E13, pp. 71-72), Dr. Elena Furrow (E14, pp. 96-97), and Dr.
Patrick R. Danaher (E14, p. 57). The defendants, by contrast,
tout the opinions of their retained and examining experts,
Dr. Ian D. Crabb (E28) (E29) (E30), Dr. Morgan T. LaHolt
(E27), and Dr. David C. Randolph (E31).
Clearly,
the Court as trier of fact is called upon to determine which
of the medical experts to believe. That exercise is never an
easy one, and the Court in this case expended a great deal of
time and effort in analyzing the opinions and conclusions
offered by the medical experts. In the course of its
assessment, the Court considered such things as the accuracy
of the history relied upon by the medical experts; the
soundness of the...
