DAVID REZAC, Plaintiff,
v.
OLIVER HOMES, LLC, Defendant.
No. 1117
DOC 206
Nebraska Workers Compensation
September 14, 2007
Timothy S. Dowd, Attorney at Law
Justin
High Ronald E. Frank, Attorneys at Law
ORDER OF AFFIRMANCE AND REMAND ON REVIEW
This
matter came on for a review hearing before the Nebraska
Workers' Compensation Court at Omaha, Douglas County,
Nebraska, on September 11, 2007, on the application for
review of the defendant filed April 26, 2007, alleging error
in the award entered on April 18, 2007, by Judge James R.
Coe, and upon the written briefs and oral arguments of the
parties.
I.
The
first error alleged by the defendant is that Judge Coe erred
in determining that the plaintiff was temporarily partially
disabled from April 24, 2006, to the date of hearing on March
13, 2007, and would continue to be temporarily partially
disabled. There is an opinion from Dr. Christopher Ihle,
expressed January 15, 2007, that the plaintiff had not yet
attained maximum medical improvement. The doctor had earlier
expressed the opinion that the plaintiff was going to require
a distal claviculectomy which has not yet been performed.
Furthermore, there is evidence that Dr. Ihle imposed
restrictions upon the use of the plaintiff’s right arm and
there is no evidence that those restrictions have been lifted
or altered. While it is true that the plaintiff was able to
secure employment one week after his employment with the
defendant was ended, the plaintiff works fewer hours and at a
lesser rate of pay. In the case Frauendorfer v. Lindsay
Mfg. Co. Inc., 263 Neb. 237, 639 N.W.2d 125 (2002), Mr.
Frauendorfer was able to return to work with his same
employer, but at fewer hours and a reduced rate of pay. An
award of temporary partial disability to Mr. Frauendorfer
until such time as he attained maximum medical improvement
was affirmed. The difference in this case is that Mr. Rezac
is working for a new employer. The review panel finds that
Judge Coe was not clearly wrong in finding the plaintiff to
have been temporarily partially disabled since April 24,
2006. The review panel does note, however...
