Nelson v. Omaha Steel Castings Co., 052413 NEWC, 1349

• Case Date: May 24, 2013
• Court: Nebraska

DUANE D. NELSON, Plaintiff, v. OMAHA STEEL CASTINGS CO., a corporation, Defendant. No. 1349 DOC 212 Nebraska Workers' Compensation Court May 24, 2013           James F. Fenlon, Attorney at Law James F. Fenlon, P.C.           Harry A. Hoch III, Attorney at Law Sodoro, Daly, Shomaker & Selde PC LLO           AWARD           Daniel R. Fridrich, Judge          APPEARANCES:            This cause came on for hearing before the Nebraska Workers' Compensation Court at Omaha, Douglas County, Nebraska on this 30^th day of April, 2013, on the plaintiff’s Petition, answer of the defendant and on the evidence, Judge Daniel R. Fridrich, one of the judges of said court presiding. Plaintiff appeared in person and was represented by his attorney, James F. Fenlon. Defendant was represented by Harry A. Hoch, III. Testimony was taken, evidence adduced, and the cause submitted.          Plaintiff offered Exhibits 1 through 16, which were received into evidence without objection. Defendant offered Exhibits 17 through 19, which were received into evidence without objection.          The parties entered into a series of stipulations set forth below, which the Court accepts as true:

1. Plaintiff was injured in two accidents which arose out of and occurred in the course and scope of his employment with the defendant on May 14, 2008, and August 5, 2009. 2. Plaintiff’s average weekly wage for both accidents was $585.23. 3. Plaintiff reached maximum medical improvement on April 1, 2010. 4. Plaintiff is not making a claim for vocational rehabilitation benefits. 5. Plaintiff worked for the defendant from December 14, 2009, to January 4, 2010. Plaintiff’s last day of work was January 4, 2010.

         Plaintiff suffered two accidents with the defendant. The Court will address each accident individually.          MAY 14, 2008, ACCIDENT          The evidence showed that plaintiff was an employee of the defendant on May 14, 2008. He had worked for the defendant since 1974. On the day of the accident, he was a crane operator. Plaintiff proved that he injured his neck on that day when the crane he was operating hit an I-beam, causing his crane to come to a sudden stop. Plaintiff was thrown around the cab of the crane and struck the heater. He felt immediate pain in his back and neck. The only injury that is found related to this accident, however, is an injury to the plaintiff’s neck. Causation for that injury comes from Dr. Michael O’Neil. (E5, p. 6). Defendant did not stipulate to such an injury but did not offer any evidence to refute it.          As a result of that accident, plaintiff proved he was temporarily totally disabled from May 14, 2008, through and including June 8, 2008. (E2, p. 18, 20&24). Based upon the average weekly wage of $585.23, plaintiff is entitled to temporary total disability (hereinafter "TTD") benefits at the rate of $390.15 per week for 3.7143 weeks. Plaintiff is entitled to $1,449.13 in TTD benefits from the defendant for the May 14, 2008 accident.          Defendant offered evidence that it has paid a total of $18,349.57 in indemnity benefits for both accidents. (E19). Defendant is entitled to a credit for indemnity benefits paid (minus the TTD owed for this date of injury) towards any benefits owed toward the August 5, 2009, accident.          The Court finds the plaintiff reached maximum medical improvement for this particular accident on August 1, 2008. (E2, p. 36). On this particular day, it was noted by Dr. Peter Lennarson that plaintiff no longer had numbness, tingling or weakness in his arms. Plaintiff had mild back pain and occasional headaches. Plaintiff was working his normal job and had been previously released to work full duty on June 23, 2008. (E2, p. 29). Dr. Lennarson released plaintiff from his care on August 1, 2008. While plaintiff continued to receive medical treatment after August 1, 2008, ongoing medical treatment does not mean plaintiff is not at maximum medical improvement. Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).           The Court is cognizant that the parties stipulated to a date of April 1, 2010, as the date plaintiff reached maximum medical improvement. The stipulation, however, did not specify from which accident the plaintiff reached maximum medical improvement. The Court concludes the stipulated date of maximum medical improvement of April 1, 2010, applies to the second accident.          Based upon the evidence in the record, the Court finds the plaintiff suffered a 0 percent loss of earning capacity and is entitled to no permanent partial disability (hereinafter "PPD") benefits as a result of this particular accident. See Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). Plaintiff was released to return to work without limitations and thereafter continued working his regular job as a crane operator. While Dr. Michael O’Neil opined plaintiff suffered a 6 percent impairment to his cervical spine as a result of this accident, the Court finds that rating applies to the August 5, 2009, accident. Plaintiff had no permanent impairment from this accident and instead relies upon the report of Dr. Ramakanth Vemuluri, who opined plaintiff had no limitations or restrictions from the accident. (E2, p. 28&29). In choosing to believe Dr. Vemuluri over Dr. O’Neil on this issue, the Court is mindful that as the trier of fact, this Court can pick which, if any, expert witnesses to believe. Owen v. American Hydraulics, Inc., 258 Neb. 881, 606 N.W.2d 470 (2000).          The Nebraska Supreme Court has held that before an order for future medical benefits may be entered there should either be a stipulation of the parties to that effect or evidence in the record sufficient to support a determination that...