JERRY THOMPSON, Plaintiff,
v.
FAIRBANKS INTERNATIONAL, Defendant.
No. 1501
DOC 211
Nebraska Workers' Compensation Court
August 30, 2012
Jerry
J. Milner, Milner Law Office, P.C., Attorney at Law
Gregory D. Worth, McAnany, Van Cleave & Phillips, P.A.,
Attorney at Law
AWARD
John
R. Hoffert, Judge
THIS
CAUSE came on for hearing before the Nebraska Workers’
Compensation Court at Kearney, Buffalo County, Nebraska, on
May 8, 2012, 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. The Court having listened to
the testimony at trial; having evaluated the exhibits
received into evidence; having had the benefit of the oral
closing arguments of counsel; and, being otherwise fully
advised in the premises, finds as follows.
I.
Prior
to the presentation of oral testimony, the parties advised
the Court that they were able to reach several stipulations,
to wit: (1) that the plaintiff was employed by the defendant
on the date of his alleged accident of August 27, 2010; (2)
that the plaintiff did, indeed, sustain an accident arising
out of and in the course and scope of his employment with the
defendant on August 27, 2010 (the nature and extent of any
resulting injury, however, being at issue); (3) that notice
of the accident was given as soon as practicable by Mr.
Thompson to his employer as required by Nebraska law; (4)
that on the date of his accident the plaintiff earned an
average weekly wage of $897.84 for purposes of assessing his
entitlement to both temporary and permanent disability
benefits; (5) that the defendant is entitled to a credit in
the amount of $14,886.19 for payment of various medical bills
incurred by the plaintiff in the treatment of his injury all
as set forth in defendant’s Pretrial Statement; (6) that the
defendant has paid unto the plaintiff temporary total
disability benefits for a period of 26.43 weeks at a weekly
rate of $598.56 for a total payout of $15,819.94; (7) that
the defendant has also paid to the plaintiff permanent
partial disability benefits for a loss of earning capacity of
80 percent for a period of 62.57 weeks continuing to the date
of trial for a total sum of $29,961.60; (8) that Ms. Michelle
Hultine was the court-appointed vocational rehabilitation
counselor assigned the duty of assessing plaintiff’s loss of
earning power and entitlement to vocational rehabilitation
services; and (9) that venue was proper. The Court accepts
the various stipulations of the parties and so finds.
The
plaintiff offered Exhibits 1 through 17 into evidence. The
defendant voiced no objection to the receipt of the tendered
materials. Consequently, plaintiff’s Exhibits 1 through 17
were received into evidence.
The
defendant, in turn, offered Exhibits 18 through 21 into
evidence. The plaintiff, likewise, had no objections to the
offer. Thus, defendant’s Exhibits 18 through 21 were received
into evidence as well.
II.
Owing
to the various stipulations of the parties relative to
employment, occurrence of accident, notice, average weekly
wage and the like, the issues presented for resolution are
few in number. This is not, however, to suggest that they
were of little importance or easily resolved.
The
first issue for the Court to decide at trial is the
determination of the nature and extent of the injury suffered
by the plaintiff in the stipulated accident of August 27,
2010. Both in his Petition as well as during direct
examination at trial, the plaintiff indicated that he injured
his low back while lifting a 30 pound object feeling a crunch
or grinding sensation in his low back area as a result. This
injury is, of course, subjective in nature. In other words,
it is not plainly apparent nor visible to the casual or lay
observer. Therefore, Nebraska law clearly provides that an
opinion from a medical expert is necessary to establish both
the nature of the injury and its causal connection to the
accident sued upon. Mendoza v. Omaha Meat
Processors, 225...
