Garcia v. PCT, Incorporated, 090607 NEWC, 2209

• Case Date: September 06, 2007
• Court: Nebraska

ANA GARCIA, Plaintiff, v. PCT, INCORPORATED, Defendant. No. 2209 DOC 205 Nebraska Workers Compensation September 6, 2007           Lee S. Loudon, Attorney at Law Law Office of Lee S. Loudon           Nicole M. Mailahn, Attorney at Law Jacobsen, Orr, Nelson, Wright & Lindstrom, P.C.           AWARD           J. Michael Fitzgerald, JUDGE          This matter comes on for trial this 12^th day of March, 2007, in Hastings, Nebraska.          Prior to May 10, 2005, the plaintiff had a low back condition known as isthmic spondylolisthesis. On May 10, 2005, the plaintiff was lifting at work when she heard a pop and her back began to hurt. Dr. Jonathan Fuller states in a letter dated November 1, 2005,

Ms. Garcia has an industrial back injury that occurred on May 10, 2005, in the course of lifting heavy objects at work. Ms. Garcia denies any pre-existing back pain and states unequivocally that her first back pain requiring treatment occurred after the lifting incident.          Ms. Garcia has isthmic spondylolisthesis. This condition was not caused by the lifting incident, but was rendered symptomatic by the lifting incident according to the history provided to me by Ms. Garcia. This would represent an aggravation of a pre-existing condition (E6, p. 1).

         The plaintiff was treated by Dr. Troy Wilson and Dr. Charles Nowacek. The plaintiff was referred to Dr. Jonathan Fuller at the Nebraska Spine Center.          On April 10, 2006, Dr. Fuller performed an anterior posterior spinal fusion L5-S1 by the transforaminal lumbar interbody fusion technique at Nebraska Methodist Hospital (E10, pp. 4-5). This procedure involved inserting a 10-mm custom spine cage.          On August 4, 2006, Dr. Fuller wrote that the plaintiff was to begin physical therapy and to start range of motion training as part of her physical therapy regimen. The plaintiff may return to work with a lifting limit of 15 pounds and no excessive bending, twisting, or stooping. These restrictions will be in effect until November 4, 2006 (E6, p. 15).          On November 3, 2006, Dr. Fuller found the plaintiff at maximum medical recovery. A helical CT scan was ordered to verify that the fusion was solid. The plaintiff was to continue work restrictions until an FCA is done. Restrictions were continued at 15 pounds and no excessive bending, twisting, or stooping. (E6, p. 17).          On November 28, 2006, Dr. Fuller wrote: "Ms. Garcia is not yet at maximum medical improvement. Her next appointment is on December 7, 2006 and at that time she will undergo a functional capacity assessment." Dr. Fuller stated that provisionally the plaintiff’s impairment was 21 percent (E6, p. 19).          On December 7, 2006, plaintiff attended a functional capacity evaluation (FCE) by Erick Alvarez, BS (E6, pp. 22-56). A listing of material handling ability, nonmaterial handling ability, repetitive and static work ability, work classification, and additional comments are found in Exhibit 6, page 24. Mr. Alvarez’s functional capacity evaluation finds the plaintiff can lift 15 pounds occasionally and 10 to 15 pounds frequently. The plaintiff can occasionally bend, squat, kneel, crawl, and stair climb. The plaintiff can constantly sit, stand, and walk, but can only forward reach occasionally. The plaintiff can overhead reach frequently.          The plaintiff had a functional capacity evaluation on January 26, 2007, at Excel Physical Therapy (E32). This functional capacity evaluation was done by Neal Wachholtz. Mr. Wachholtz finds the plaintiff can lift generally 20 pounds, except from shoulder to overhead when the plaintiff can only lift 15 pounds. The plaintiff can push and pull 30 pounds, carry 25 pounds, and lift 25 pounds 12 inches to knuckle. This is all occasionally. Frequent...