TONY GARRETSON, Plaintiff,
v.
RAWHIDE CARRIERS, INC., Defendant.
No. 2342
DOC 205
Nebraska Workers Compensation
August 31, 2007
Douglas Pauley Conway, Pauley & Johnson P.C.
John
R. Timmermier Timmermier, Gross & Prentiss
AWARD
J.
Michael Fitzgerald, JUDGE
This
matter comes on for trial this 4
th day of April,
2007.
After
trial, the plaintiff offers Exhibit 28 which is a letter of
transmittal, plus a report dated April 24, 2007, from Dr.
Daniel Ripa. Exhibit 28 is received. Exhibit 29 advised that
the case is submitted. Exhibits 28 and 29 are received.
Prior
to June 2005 the plaintiff had suffered injuries to his
shoulders in an automobile accident in 1976. Treatment for
bilateral carpal tunnel syndrome in 1998 and treatment for a
low back injury. The low back injury occurred on or about
January 23, 2001.
Concerning
the injury of January 23, 2001, the plaintiff was driving a
truck for McMullin Transfer when he hurt his back moving a
tarp. The plaintiff was treated conservatively although
according to a vocational rehabilitation plan, there is a
recommendation for low back surgery (E15, pp. 5-8).
The plaintiff did not participate in the rehabilitation plan
(E15). That plan called for job placement.
On
August 30, 2001, Dr. Daniel Ripa wrote that he believed the
plaintiff "experiences significant difficulty in his
chosen occupation as an over the road truck driver. It is
unlikely that he will be able to continue performing that
type of work activity on an ongoing basis" (E14). On
May 29, 2003, Dr. Ripa writes the plaintiff could
participate in some short-haul truck driving or delivery type
work with short brief periods operating a truck and that he
may well be able to return to such activities. An over the
road or long-haul truck driving option would not be
acceptable to the plaintiff.
On
plaintiff’s application for employment with the defendant
(E9, pp. 30-35) the plaintiff notes that in December 2003 he
started work for United Transport as an owner-operator and a
truck driver. The plaintiff moved to White Farms Trucking in
January 2004. The plaintiff operated as Garretson Trucking
from March 2004 to June 2004, and beginning in June 2004 to
August 2004 the plaintiff leased to Wynne Transportation. The
plaintiff went broke, his truck broke down, and he stopped
driving the truck that he owned in August 2004.
Medical
records show that on May 14, 2004, the plaintiff applied for
a Department of Transportation (herein referred to as DOT)
physical. The plaintiff was unable to pass due to high blood
pressure and underwent therapy. The plaintiff’s blood
pressure came down and the DOT physical form was signed (E1,
p. 2).
The
plaintiff has chronic obstructive pulmonary disease, asthma,
and bronchitis. Records show numerous visits to Dr. Straka
and the physicians at Family Health Services in Geneva,
Nebraska, for upper respiratory symptoms, bronchitis, and
asthma. On June 10, 2004, the plaintiff was examined by Dr.
Straka for bronchitis. On July 27, 2004, the plaintiff was
examined by Dr. Straka for shortness of breath, cough,
and wheezes. The diagnosis is reactive airway disease with
wheezing (E1, p. 5).
On
October 5, 2004, the plaintiff was examined in the emergency
room of the Fillmore County Medical Center. The note states:
Tony presents to the ER today complaining of some pain in
his neck. He states that about a week ago he started to
have cramping in the neck. Now over the last couple of days
it is worse on the left side. This morning he woke up and
it is on both sides. He states he has been a little
light-headed with this. He has been using some Tylenol at
this time (E2, p. 5).
On
examination, there was tenderness in the paracervical muscles
down into the trapezius muscles as well. The diagnosis is
cervical strain and muscle tension headache. The plaintiff
was to wear a cervical collar all the time, except for in the
shower and was given medication. No x-rays were taken. The
plaintiff was to follow-up in the clinic as needed. The
plaintiff was discharged in good condition.
On
October 21, 2004, the plaintiff applied for an over the road
truck driver position with the defendant. This position was...
