Kurti v. Douglas County School District 0001, 091120 NEWC, 0443
Case Date | September 11, 2020 |
Court | Nebraska |
1. Plaintiff was employed by the defendant at the time of the accident.
2. Plaintiffs average weekly wage for both temporary and permanent disability was $745.89.
3. Venue is proper in Douglas County, Nebraska.
4. Plaintiff gave notice to the defendant of the injury to her neck as required by Neb. Rev. Stat. § 48-133.The issues for the Court to resolve are: 1. Whether the plaintiff suffered injuries in an accident that arose out of and in the course of her employment with the defendant on June 10, 2015, and if so, the nature and extent of the injuries suffered; 2. Whether plaintiff gave notice to the defendant of her carpal tunnel, thoracic and lumbar back injuries as required by Neb. Rev. Stat. § 48-133; 3. Plaintiff’s entitlement to indemnity benefits; 4. Defendant’s liability for the unpaid medical bills offered into evidence at Exhibit 24; and 5. Plaintiff’s entitlement to an award of future medical care. The Court will address each issue individually. I. WHETHER THE PLAINTIFF SUFFERED INJURIES IN AN ACCIDENT THAT AROSE OUT OF AND IN THE COURSE OF HER EMPLOYMENT WITH THE DEFENDANT ON JUNE 10, 2015, AND IF SO, THE NATURE AND EXTENT OF THE INJURIES SUFFERED Plaintiff alleges that she suffered injuries to her neck, thoracic spine, lumbar spine and right upper extremity all caused by repetitively having to push and pull a 450-pound floor scrubber. Repetitive trauma claims like this are analyzed under the rubric of an accident as that term is defined by Neb. Rev. Stat. § 48-151(2). Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009). Defendant argues plaintiff cannot prove she suffered an accident as that term is defined by § 48-151(2). Defendant argues plaintiff cannot meet the “suddenly and violently” element because plaintiff’s injury did not occur at an identifiable point in time nor was the cause of the accident reasonably limited in time. See Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003). In addition, defendant disputes that plaintiff’s thoracic and lumbar injuries are related to her repetitive use of the auto scrubber. The Court will first address whether plaintiff proved she suffered an accident as that term is defined by the Act. In order to be entitled to benefits under the Nebraska Workers’ Compensation Act, an injured worker must prove she suffered an accident arising out of and in the course of her employment. Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954). An accident is defined as “an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” Neb. Rev. Stat. § 48-151(2). “Suddenly and violently” does not mean instantaneously and with force, but, rather, the element is satisfied if the injury occurs at an identifiable point in time, requiring the employee to discontinue employment and seek medical treatment. Swoboda v. Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166 (2004). Plaintiff is a 58 year old Albanian national, who came to the United States in 2005. On August 1, 2005, she began working as an assistant custodian on the second shift for the defendant. (E125). She worked full-time five day a week. As of the day of trial, she continues to work for the defendant in that same capacity at Omaha South High School. In 2014, plaintiff’s job required her to clean the wood shop, the cafeteria, the kitchen and the weight room at Omaha South. In January 2014, plaintiff began using the Nilfisk Advance Scrubber (referred to during testimony as the “auto scrubber”) to clean the kitchen and cafeteria floors. The auto scrubber is depicted in Exhibit 4 on page 8. According to plaintiff’s testimony, the auto scrubber weighs about 450 lbs. Plaintiff testified that while the machine is basically self-propelled, she was still required to pull on the auto scrubber. There were times the auto scrubber would get stuck in corners, forcing her to pull on it with all of her strength. This caused her pain. Plaintiff testified she used the auto scrubber every day in the kitchen, which was difficult because the kitchen floor had food and sauce stuck on it. In addition, the kitchen was narrower compared to the cafeteria, making it hard to navigate. She testified she used the auto scrubber for 2 ½ to 3 hours per day. By February of 2014, plaintiff was having symptoms in her neck that radiated up to her head. Plaintiff testified she first thought her symptoms might be related to her ear because she was also having ear pain. As a result, plaintiff sought medical treatment with Dr. Barbara Heywood on February 7, 2014. (E111, p. 6). Dr. Heywood recorded that plaintiff was having right ear pain for about a month accompanied by dizziness and tenderness. Id. Dr. Heywood also recorded that plaintiff was having neck pain along with numbness in her right arm. Plaintiff told Dr. Heywood that she was not sure if the pain started in her ear and moved to her neck or vice versa. Plaintiff was diagnosed with cervical arthritis. (E111, p. 7). She was told to return if her symptoms worsened or failed to improve. Id. Plaintiff testified she continued to work for the defendant throughout 2014 and her pain continued to worsen. She sought medical treatment again on December 12, 2014, when she was seen by Dr. John Craig. In his office note, Dr. Craig recorded that plaintiff was suffering from right-sided neck pain and that her trapezius was sore to the touch. (E1, p. 1). He noted the pain had been present for more than one month and diagnosed a trapezius muscle spasm and foot pain. (E1, pp. 1&3). Plaintiff was instructed to return in one month. Id. Plaintiff continued to treat with Dr. Craig in the early months of 2015. Her treatment consisted primarily of medications and physical therapy. When plaintiff received light duty restrictions from Dr. Craig, her medical care was switched over to Comp Choice due to a workers’ compensation claim being filed. Plaintiff was first seen by Dr. Mark Byrnes at Comp Choice on May 11, 2015. (E3, p. 1). Dr. Byrnes noted that plaintiff started to develop pain in the right side of her...
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