DIANE SANFORD, Plaintiff,
v.
MENARD, INC., Defendant.
No. 0078
Doc. 216
Nebraska Workers Compensation
February 8, 2017
Plaintiff: Michael W. Khalili, Hauptman, O'Brien, Wolf
& Lathrop PC.
Defendant: Timothy E. Clarke, Baylor, Evnen, Curtiss, Grimit
& Witt LLP.
AWARD
Julie
A. Martin, Judge
This
cause came on for hearing before the Nebraska Workers'
Compensation Court in Omaha, Douglas County, Nebraska, on the
7 th day of December, 2016, on the Petition of
plaintiff, the Answer of defendant, and on the evidence.
Judge Julie A. Martin, one of the judges of said court,
presiding. Plaintiff appeared in person and was represented
by counsel. Defendant was represented by counsel. Testimony
was taken, evidence adduced, cause submitted, and the Court,
being fully advised in the premises, finds as follows:
I.
Diane
Sanford filed a Petition alleging she sustained an accident
and injury while working for defendant on or about March 23,
2014. Specifically, she claimed that she tripped over a box,
landed on her right side, and aggravated a preexisting back
condition. She is seeking compensation for her injury.
In
response, Menard, Inc. admitted plaintiff was in its employ
on the date in question but generally denied her allegations
of an accident and injury. Defendant affirmatively alleged
that any disability did not arise out of her employment with
defendant and also that the condition resulted from a
sickness, disease, or inherent condition with plaintiff and
not her employment.
In
support of her claim, plaintiff offered Exhibits 1 through
15. Objections were made to Exhibits 10 and 13 on the basis
of relevance and foundation. Taking the matter under
advisement, the Court, having now reviewed the exhibits,
overrules the objections. With the parties' permission,
the Court was allowed to rule on any objections made during
the deposition of Dr. Eric Phillips (E15) post-trial. After
having the opportunity to read the transcript in its
entirety, the Court overrules all objections made therein.
Defendant offered Exhibits 16 through 31, to which no
objections were voiced. Hence, Exhibits 1 through 31 are
received into evidence.
Pursuant
to the Court's Order for Submission of Joint Pretrial
Memorandum, the parties reached the following stipulations:
1.
Jurisdiction and venue are proper;
2.
Plaintiff was employed by Menard on March 23, 2014;
3.
Defendant received timely notice of plaintiff's accident
pursuant to Neb. Rev. Stat. § 48-133;
4. Plaintiff's average weekly wage for the claimed date
of accident is $436.53; and
5. Defendant has paid some medical and indemnity benefits to
plaintiff for which it was entitled to a credit.
The
Court accepts the stipulations of the parties and so finds.
The
issues presented by the parties for resolution are as
follows:
1.
Whether the plaintiff suffered an accident and injury to the
low back as a result of the alleged accident on March 23,
2014;
2. The
nature and extent of plaintiff's injury and disability,
if any;
3. What
indemnity is owed, and the amount, (including temporary
total, temporary partial, and/or permanent partial);
4. Plaintiff's entitlement to payment of medical bills
and associated mileage (see attached summary of medical
charges);
5. Whether plaintiff has reached MMI or not;
6. Whether plaintiff is entitled to Neb. Rev. Stat. § 48-125
waiting time penalties, attorney fees, and costs, and, if so,
the penalty amount due; and
7. Whether plaintiff is entitled to an award for future
medical care, including her request for surgery.
II.
The
first issue for the Court to resolve is the fundamental
question of whether or not plaintiff sustained a compensable
accident and injury arising out of and in the course of her
employment with defendant on March 23, 2014. It is
plaintiff's burden to establish by a preponderance of the
evidence that the injury for which an award is sought arose
out of and in the course of employment. Neb. Rev. Stat. §
48-151(2); Edmonds v. IBP, Inc., 239 Neb. 899, 479
N.W.2d 754 (1992). 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). The Court finds that plaintiff has met her burden
of proving an accident while working for defendant.
Ms.
Sanford was employed at Menard in the receiving department,
unloading trucks and taking product to various departments
throughout the store. She testified that on the date in
question she tripped over a box that had fallen from a pallet
she was taking apart and fell to the ground. There were no
witnesses to the accident. She reported the incident to her
supervisor and to co-employee Shelby.
Defendant
did not offer substantial evidence to dispute the actual
occurrence of the accident. Neither the supervisor nor the
co-employee were called to challenge plaintiff's
testimony. Defendant admitted that it received proper notice
of the accident.
Therefore,
the Court finds satisfactory evidence has been offered by
plaintiff to meet her burden of proving an accident arising
out of and in the course of her employment with Menard on or
about March 23, 2014.
The
accident is only part of plaintiff's burden as she must
also prove that she sustained an injury. As the claimed
injuries to her back are subjective in nature and not plainly
apparent or visible to the casual or lay observer, Nebraska
law provides that an opinion from a medical expert is
necessary to establish the nature of the injury and its
causal connection to the accident sued upon. Mendoza
v. Omaha Meat Processors, 225 Neb. 771,
408 N.W.2d 280 (1987); Mack v.
Dale Electronics, Inc., 209 Neb.
367, 307 N.W.2d 814 (1981). Plaintiff has an evidentiary
obligation to present medical testimony that is sufficiently
definite to allow the fact finder to conclude that there is a
causal connection between the incident and the injury.
Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754
(1992).
After
the accident, plaintiff thought she was going to be fine and
continued her shift. She testified that she had pain in her
lower back on the left side later that night and the next day
had some pain in her left leg with some numbness into her
toes. A few days later, the pain spread into her right lower
back. She attributed her pain complaints to her fall at work.
She described the pain as constant and severe.
Ms.
Sanford testified that the pain continued to get worse and
finally sought treatment for her back pain with paresthesias
of the left leg and numbness in her left foot on June 10,
2014. (E2). Dr. Mark Woodruff's assessment was of a fall
from slipping, tripping, or stumbling and likely aggravation
of chronic low back pain. She was prescribed medication for
her complaints and restricted from lifting over 30 pounds
frequently at work. (E2, p.3; E28, p.4). Plaintiff returned
to Dr. Woodruff on July 14, 2014, claiming worsening symptoms
most prominent in the lower left lumbar spine, with radiation
to the buttocks, thighs, calves, and left foot. She reported
that this was a chronic problem that started more than 10
years ago with an acute exacerbation but did not recall any
precipitating event or injury. Her medications were refilled,
and...
