YVONNE SMITH, Plaintiff,
v.
THE STATE OF NEBRASKA, Defendant.
No. 1426
DOC 206
Nebraska Workers Compensation
September 11, 2007
Joseph
C. Dowding, Attorney at Law
Tracy
L. Warren Assistant Attorney General
AWARD
John
R. Hoffert, JUDGE
This
cause came on for hearing before the Nebraska Workers'
Compensation Court at Lincoln, Lancaster County, Nebraska, on
June 27, 2007, on the Petition of the plaintiff, Answer of
the defendant and on the evidence, Judge John R. Hoffert, 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, and cause submitted with receipt of briefs
post-trial on August 7, 2007. The Court, having listened to
the testimony presented at trial; having evaluated the
exhibits introduced into evidence; having read the respective
written submissions of counsel; and being otherwise fully
advised in the premises, finds as follows.
I.
Prior
to the presentation of oral testimony, the parties were able
to reach several stipulations, to wit: (1) the plaintiff was
employed by the defendant on the date of her alleged accident
of January 25, 2006; (2) the plaintiff did, in fact,
suffer an accident arising out of and in the course and scope
of her employment with the defendant on January 25, 2006; (3)
notice of said accident was given as soon as practicable by
the plaintiff to the defendant following said accident; (4)
plaintiff suffered a right thumb injury in said accident, but
the remainder of plaintiff’s claimed injuries are in contest;
(5) on the date of her accident the plaintiff earned an
hourly rate of pay of $11.11 with an average weekly wage for
purposes of the computation of temporary total and temporary
partial disability benefits of $421.96; (6) the plaintiff was
temporarily totally and temporarily partially disabled from
January 25, 2006, through July 18, 2006, as set forth in
paragraph III of Plaintiff’s Pre-Trial Memorandum which
the parties agreed the Court could judicially notice (marked
as Exhibit 34); (7) plaintiff received payment from the
defendant of all temporary total and/or temporary partial
disability benefits owed unto her for the time frame from
January 25, 2006, through July 18, 2006; and, (8) that both
venue and jurisdiction were proper. The Court accepts the
stipulations of the parties and so finds.
The
plaintiff offered into evidence Exhibits 1 through 20 and 32
through 33. [Exhibit 32 was offered and received into
evidence post-trial as leave of Court to do so was extended
so that plaintiff could rebut a medical report offered by the
defendant, which had prompted an initial objection of
untimely disclosure.] The defendant objected only to Exhibits
19 and 20, arguing that the depositions of Troy Reiners and
Lisa Hoffman were irrelevant and did not constitute the best
evidence. The Court overruled the objections based upon the
understanding that the depositions would reduce or eliminate
cumulative evidence as both witnesses were to be called at
trial in any event. Hence, the Court received plaintiff’s
Exhibits 1 through 20 and 32 through 33 into evidence.
The
defendant, in turn, offered Exhibits 21 through 31 into
evidence. The plaintiff objected only to Exhibit 26, pages 11
through 13 on the basis that the report of Dr. John Massey
was not timely disclosed and thus served to prejudice
plaintiff’s opportunity for rebuttal. As noted above, the
Court, in lieu of striking said report, extended the
opportunity to plaintiff to provide a report from her primary
medical expert, Dr. Daniel Ripa, post-trial. Consequently,
the Court received defendant’s Exhibits 21 through 31 into
evidence as well. [Pursuant to the agreement of counsel, the
Court reviewed the transcripts of the aforementioned
depositions post-trial so as to rule upon any objections
registered by either counsel. Having had the opportunity to
review said transcripts, the Court hereby overrules all
objections.]
II.
Owing
to the stipulations entered into by the parties relative to
plaintiff’s employment, occurrence of compensable accident,
and the like, the first issue for the Court to resolve at
trial is the matter of determining the full nature and extent
of any injuries sustained by plaintiff. In other words, while
the defendant has conceded that the plaintiff sustained a
right thumb injury in the stipulated accident, plaintiff’s
assertion that she suffered right carpal tunnel syndrome and
resulting reflex sympathetic dystrophy or regional complex
pain syndrome remained issues in dispute. Thus, they are
matters for resolution by the Court. Each of the claimed
injuries will be discussed, in turn.
With
respect to the plaintiff’s claim that she suffered carpal
tunnel syndrome as a result of her employment with defendant,
the medical evidence is less than uniform as to not only
diagnosis but cause. Each side has presented reports from
various physicians who have offered diverse opinions on the
subject. Thus, the Court is called upon to choose which of
the experts to credit. While the Court acknowledges the
legitimacy of the lament by several physicians that the
plaintiff’s presentation (symptom and otherwise) was less
than clear and consistent, the fact remains that the
plaintiff was diagnosed with carpal tunnel syndrome by
objective testing. (The EMG and nerve conduction study
revealing a mild to moderate degree of right distal median
neuropathy) (E11). (Dr. Ripa also noted that an entrapped or
constricted median nerve was evident at the time of surgery)
(E13, p. 16).
In the
end, the Court found the opinions of defendant’s examining
expert, Dr. George L. Pratt and plaintiff’s operating
surgeon, Dr. Daniel R. Ripa, to be persuasive on the issue of
not only the diagnosis of carpal tunnel syndrome but also of
the cause of plaintiff’s carpal tunnel syndrome. In reaching
this conclusion the Court is by no means satisfied that the
syndrome was related in any manner to the singular discrete
traumatic event occurring on January 25, 2006, when the
plaintiff injured her thumb in her attempt to catch a falling
box of files. Rather, the Court agrees with Drs. Pratt
and Ripa that the carpal tunnel syndrome was "probably
related to her long term (several years) hand/wrist/arm
repetitive work activities. . . ." (E28, p. 14) (E13, p.
29). [At this juncture the Court would certainly note that
one of defendant’s medical experts, Dr. D. M. Gammel, did
suggest that plaintiff’s carpal tunnel syndrome was the
byproduct of her obesity and diabetic condition, but provided
no persuasive analysis of the role of plaintiff’s obvious
repetitive work activities in the development of her
condition. This shortcoming led the Court to discount his
opinion. Additionally, the Court acknowledges and shares the
general sense of the medical evidence (considered as a whole)
that the interplay of plaintiff’s subjective presentation
relative to her thumb injury and right extremity complaints
was confusing or otherwise clouded any attempt to segregate
the two. Yet, several medical experts were able to sort
through the perplexity presented. Finally, the Court would
observe that while it has not found that the plaintiff’s
carpal tunnel syndrome was the result of the accident
sued upon, no due process concerns are evident as the
defendant certainly was aware of the claim for the condition
as well as the medical evidence generated by plaintiff in the
preparation of her case. Indeed, the defendant was quite
vigorous in its defense of this claimed injury and mounted a
spirited medical rebuttal to same.]
In
finding that the plaintiff has established that her carpal
tunnel syndrome was related to her work activities for
defendant, the Court obviously has concluded that Ms. Smith
has satisfied the three elements necessary to establish that
her repetitive work activities met the statutory definition
of "accident" as set forth in Nebraska Revised
Statutes § 48-151(2). In other words, the Court finds that
the plaintiff’s injury was unexpected or unforeseen; happened
suddenly and violently; and produced objective symptoms of
injury.
The
medical records generated contemporaneously with the events
under review served to support or satisfy the
"unexpected or...
