Stacy v. Great Lakes Agri Marketing, Inc., 083107 NEWC, 1974

• Case Date: August 31, 2007
• Court: Nebraska

MICHAEL E. STACY, Plaintiff, v. GREAT LAKES AGRI MARKETING, INC., Defendant. No. 1974 DOC 205 Nebraska Workers Compensation August 31, 2007           Jeffry Patterson Attorney at Law           D. Steven Leininger, Leininger, Smith, Johnson, Baack, Placzek, Steele & Allen           ORDER OF AFFIRMANCE, IN PART AND REVERSAL, IN PART, ON REVIEW          THIS MATTER came on for a review hearing before a panel of the Nebraska Workers' Compensation Court at Lincoln, Lancaster County, Nebraska, on July 17, 2007, on the Application for Review filed by the plaintiff on February 12, 2007, alleging errors in the Award entered on January 31, 2007, by Judge Michael P. Cavel, and upon the oral arguments and briefs of the parties.          The Court, having heard the oral arguments of counsel; having reviewed the written briefs submitted by the parties; and being otherwise fully advised in the premises, finds as follows.          I.          The plaintiff has assigned nine errors in his Application for Review (T86-87) which, restated and renumbered, assert; (1) that the trial court erred in failing to find that the plaintiff suffered a body as a whole injury in the accident at issue and thus was entitled to permanent total disability benefits; (2) that the trial court erred in finding that the plaintiff’s period of temporary total disability ended as of January 20, 2006; (3) that the trial court was clearly wrong in failing to find that the plaintiff was entitled to vocational rehabilitation services; (4) that the trial court was clearly wrong in concluding that the defendant was entitled to a credit for benefits paid pursuant to Exhibit 31; and (5) that the trial court erred in concluding that a reasonable controversy regarding plaintiff’s entitlement to benefits existed. Each alleged error will be considered, in turn.          II.          The first error claimed by the plaintiff concerns the finding by the trial court that workers’ compensation benefits for a member or scheduled injury as opposed to a whole body injury were owed unto plaintiff because of the accident at issue. For the benefit of the reader the panel sets forth the conclusions of Judge Cavel in this regard.

The next issue for the Court to address concerns whether the plaintiff’s injury is scheduled, non-scheduled, or both. The Court finds that the plaintiff’s permanent injury is limited to his right leg. The plaintiff was struck on his right leg just below his knee. The plaintiff developed thrombophlebitis and complex regional pain syndrome. The plaintiff argues that the complex regional pain syndrome affects his nervous system and that the anti-coagulation therapy affects his blood and circulatory system. But the question is not what system of the body may be affected, but the situs of the residual impairment. The complex regional pain syndrome impairs the plaintiff’s use of his right leg and there is no evidence from any physician that the plaintiff suffers complex regional pain syndrome in any other part of his body. With respect to the anti-coagulation therapy, the Court is not persuaded that it produces any limitations in the plaintiff not already produced by the permanent impairment of the plaintiff’s right leg (T81).

         In his brief as well as in oral argument, the plaintiff asserts that the trial court was too myopic in its approach to the issue of plaintiff’s resulting injury. Specifically, it is claimed that while the initial violence to the physical structure of the plaintiff’s body was a blow to his right knee causing a non-displaced fracture of his femoral condyle, two diseases-deep venous thrombosis (DVT) and complex regional pain syndrome (CRPS)-naturally flowed from the initial blow. These diseases according to the plaintiff do not affect or impact Mr. Stacy’s right knee only. In other words, DVT is a disease that impacts his circulatory system and CRPS is a condition that impairs his sympathetic nervous system. While acknowledging that these conditions, together with a degenerative knee problem, resulted in the total loss of use of plaintiff’s right leg, plaintiff claims that the manifestations or affects are not limited solely to the right lower extremity. ...