Whited v. Robert Dairy Co., 012214 NEWC, 1900

• Case Date: January 22, 2014
• Court: Nebraska

STEVEN A. WHITED, Plaintiff, v. ROBERT DAIRY COMPAY, Defendant, v. STATE OF NEBRASKA, WORKERS’ COMPENSATION TRUST FUND, Intervenor, No. 1900 DOC 210 Nebraska Workers' Compensation Court January 22, 2014           Todd D. Bennett, Attorney at Law           Lorra O'Banion Assistant Attorney General           Patrick B. Donahue, Attorney at Law           AWARD           John R. Hoffert, Judge          APPEARANCES:          THIS MATTER came on for hearing before the Nebraska Workers’ Compensation Court at Grand Island, Hall County, Nebraska, on November 13, 2013 and December 19, 2013, on the Amended Petition of the plaintiff, Answer to Amended Petition of the defendant, Appearance of the Intervenor, State of Nebraska, Workers’ Compensation Trust Fund 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 as was the Intervenor. Testimony was taken, evidence adduced, and cause submitted with receipt of briefs post-trial.          The Court having listened to the testimony presented at trial; having evaluated the exhibits received into evidence at the trial and post-trial hearing of December 19, 2013; having had the benefit of the written closing arguments of counsel last received on December 20, 2013; and, being otherwise fully advised in the premises, finds as follows:          I.          Prior to the presentation of oral testimony, the parties advised the Court they had reached numerous stipulations as memorialized in Exhibit 25. Specifically, the parties agreed as follows, to-wit:

(1) on February 24, 2009, plaintiff suffered an accident arising out of and in the course of his employment with defendant; (2) proper notice was given by plaintiff to defendant of the accident; (3) the accident occurred in Grand Island, Hall County, Nebraska; (4) at the time of the accident plaintiff was earning an average weekly wage for purposes of temporary and permanent disability benefits of $945.81 for a compensation rate of $630.54 per week; (5) from February 24, 2009, to July 8, 2009, inclusive, a period of 19.2857 weeks, plaintiff continued to work at Roberts Dairy Company at full duty and at full wages; (6) from July 9, 2009, to January 15, 2010, inclusive, a period of 27.2857 weeks, plaintiff did not work or worked light duty at Roberts Dairy Company for which plaintiff is entitled to temporary total and temporary partial disability benefits in the total amount of $8,597.50 for which plaintiff was timely paid $8,687.57, an overpayment of $90.07 for which defendant is entitled to credit; (7) plaintiff reached maximum medical improvement for purposes of this case on January 15, 2010; (8) from January 16, 2010, through March 23, 2010, inclusive, a period of 9.5714 weeks, plaintiff worked at full duty at Roberts Dairy Company; (9) the last day plaintiff worked at Roberts Dairy Company was March 23, 2010; (10) the first time anyone on behalf of defendant received a copy of Dr. Longley’s clinical note of January 15, 2010 was when Michael Chamberlin of Broadspire, the third party administrator for defendant, received a copy of Dr. Longley’s January 15, 2010 clinical note on February 15, 2010; (11) plaintiff underwent two consecutive p eriods of formal vocational rehabilitation in the form of job placement beginning September 17, 2010, and ending March 28, 2011, a period of 26.1429 weeks during part of which time plaintiff was employed, for which plaintiff is entitled to temporary total and temporary partial disability benefits in the total amount of $11,619.96, for which plaintiff has been fully and timely compensated by defendant; (12) plaintiff was temporarily totally disabled from January 22, 2013, to February 10, 2013, a period of 3 weeks, and was 50 percent temporarily partially disabled for the 2 weeks thereafter; (13) defendant has paid to plaintiff permanent partial disability benefits in the total amount of $67,389.92; (14) plaintiff’s salary arrangement at BAC Roofing was that plaintiff would be paid $45,000.00 per year; (15) for the year 2011, plaintiff was paid a gross salary of $33,713.83 by his employer, Roy’s Grand Dodge; (16) the statement of Benefits Paid, Exhibit 23, accurately sets forth the workers’ compensation benefits paid on behalf of defendant to plaintiff in this case. The first three pages of that exhibit are in a format that was once used by Roberts Dairy Company, but is no longer used, and do not include all the indemnity payments made, but only those indemnity payments up to August, 2011. On those pages 1-3, Code 16 refers to temporary partial disability benefits, Code 17 refers to temporary total disability benefits, Code 18 refers to permanent disability benefits and Code 26 refers to the payment of temporary disability benefits during the period of vocational rehabilitation pages 4, 5 and 6 of that exhibit set out all the medical benefits paid. Pages 7, 8 and 9 of that exhibit set forth all the indemnity payments made by defendant in this case; (17) Michelle Hultine is the court appointed vocational rehabilitation specialist in this case; and (18) defendant received a copy of Michelle Hultine’s loss of earning capacity report dated September 7, 2010 on September 9, 2010. The Court accepts these stipulations of the parties and so finds.

         The plaintiff offered Exhibits 1 through 18 into evidence. The defendant employer objected to Page 17 of Exhibit 2 arguing that the medical report of Dr. Jana Van Wie lacked foundation and was not based upon the personal knowledge of the physician. The Court overruled the objections. Absent any further objections by either the defendant employer or the intervenor, the Court, thus, received plaintiff’s Exhibits 1 through 18.          The defendant employer, in turn, offered Exhibits 19 through 25 into evidence. The plaintiff objected to Exhibit 24 arguing an Award entered by Judge Cavel of this Court in an unrelated case was irrelevant. The Court overruled the objection noting that it would, in the end, only assign whatever weight, credibility, and relevance the exhibit truly deserved. No further objections being made by either the plaintiff or the intervenor, the Court received defendant employer’s Exhibits 19 through 25 into evidence.          The intervenor, State of Nebraska, Workers’ Compensation Trust Fund, offered no exhibits of its own choosing to rely upon the exhibits received into evidence.          Per the agreement of the parties, the Court was to rule on the objections set forth in the depositions of Richard Dimon (E12) and Mike Corman (E14) post-trial. Having had that opportunity, the Court hereby overrules any and all objections.          II.          Given the numerous stipulations entered into by the parties, the issues presented for decision are few in number. That is not, however, to suggest that they would be easily resolved. The Court engaged in a deliberative and reflective analysis of the evidence presented and has reached the following conclusions...