Nelson v. First Data Resources, Inc., 072613 NEWC, 1233

• Case Date: July 26, 2013
• Court: Nebraska

VELORA NELSON, Plaintiff, v. FIRST DATA RESOURCES, INC., and  ZURICH AMERICAN INSURANCE, Defendants. No. 1233 DOC 212 Nebraska Workers' Compensation Court July 26, 2013           James J. Regan, Attorney at Law.           Thomas D. Wulff, Attorney at Law.           AWARD           Daniel R. Fridrich, Judge.          APPEARANCES:          This cause came on for hearing before the Nebraska Workers' Compensation Court in Douglas County, Nebraska, on July 3, 2013, on the petition of the plaintiff, answer of the defendants and on the evidence, Judge Daniel R. Fridrich, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendants were represented by counsel. Testimony was taken, evidence adduced and the cause submitted.          Plaintiff offered Exhibits 1 through 11. Defendants objected to Exhibit 1 on the basis of late disclosure of the exhibit and foundation. Those objections were overruled. Exhibits 1 through 9 and 11 were received into evidence. Defendants objected to Exhibit 10, pages 8 through 15, on the grounds of relevancy. The Court took those objections under advisement except for the objections to pages 9 and 10. The objections to pages 9 and 10 were sustained. The Court retained pages 9 and 10 of Exhibit 10 for the record. The Court will address the defendants’ objections to pages 8 and 11 through 15 later in the Award. Defendants offered Exhibits 12 through 19, which were received into evidence without objection from the plaintiff.          The parties entered into the following stipulations, which the Court accepts as true:

1. Plaintiff suffered an accident and injury to her neck arising out of and in the course and scope of her employment with First Data Resources, Inc. (hereinafter "FDR") on August 1, 2010. 2. Plaintiff was an employee of FDR on August 1, 2010. 3. Venue is proper in Omaha, Douglas County, Nebraska. 4. Plaintiff’s average weekly wage is $407.90. 5. Plaintiff gave notice of her accident and resulting neck injury to FDR. 6. Plaintiff lost no compensable work between August 1, 2010 and December 13, 2010.

         The central issue in dispute is the nature and extent of the plaintiff’s injury and resulting disability. The plaintiff has the burden of proving the nature and extent of the injury she suffered. Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636 (1996). Similarly, the plaintiff must prove a causal relationship between the accident she suffered and her disability. U.S. West Communications v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998). Because the plaintiff’s neck injury is subjective in nature, meaning it is neither readily apparent nor visible to the Court, an opinion from a medical expert is necessary to establish the cause and extent of the injury. 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).          The first issue to resolve is the nature and extent of the plaintiff’s injury. Plaintiff worked for FDR in the zip sort department as a Team Production Operator I. She had worked for FDR since December 24, 2006. (E6). On August 1, 2010, she was moving mail that was loaded on a pallet. She moved the pallet with a hand jack. She was in the horseshoe area of the facility. She looked behind her and saw nothing behind her. She stepped backed and tripped on another hand jack and fell on her right side. She hit her head and neck on a pallet with sleeves on it.          Plaintiff immediately reported the injury and sought medical treatment with Kathleen Archer (hereinafter "Archer"), APRN, N.P. of Gretna Family Health. (E4, p. 15). At that visit, plaintiff complained of neck pain that radiated to her...