Bovill v. Quality Pork Int'l
| Docket Number | A-23-002 |
| Decision Date | 29 August 2023 |
| Parties | Randall Bovill, appellant, v. Quality Pork International, Inc., and Zurich American Insurance Company, appellees. |
| Court | Nebraska Court of Appeals |
Appeal from the Workers' Compensation Court: J. MICHAEL FITZGERALD, Judge. Affirmed.
James R. Walz for appellant.
Joseph W. Grant and Kaitlyn J. Glaessmann, of Prentiss Grant L.L.C., for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
An employee sought workers' compensation benefits for an injury to his neck that he claimed was sustained during a surgical procedure performed to repair a work-related shoulder injury and exacerbated by a fall in the company parking lot. Based upon the employee's medical records and conflicting expert testimony, the Workers' Compensation Court determined the employee failed to prove that he suffered a neck injury during the surgical procedure but that the shoulder injury was compensable. The employee appeals the compensation court's decision denying benefits for his neck injury and the employer cross-appeals the court's award of vocational rehabilitation services for the shoulder injury. We affirm.
Randall Bovill sued Quality Pork International and Zurich American Insurance Company (collectively QPI) to recover medical cost and indemnity payments for injuries arising out of the course and scope of his employment with QPI. The parties agree that Bovill suffered a shoulder injury during his employment on November 11, 2019, however, Bovill also claimed that due to his positioning during surgery to repair his shoulder, he sustained a neck injury which is likewise compensable. He further asserted in his amended complaint that he suffered a subsequent fall on ice on his way in to work which permanently exacerbated his neck injury. The issue before the compensation court was causation of the neck injury.
On January 4, 2019, Bovill was in a car accident. Two days later, he sought medical treatment and was diagnosed with whiplash and cervical strain. An x-ray of his cervical spine revealed
On January 8, 2019, Bovill sought additional treatment at a medical clinic and reported that he was still experiencing neck pain that prevented him from working. The report notes that Bovill communicated tenderness along the "occipital and cervical spinal paraspinal muscles." Bovill was told to continue heating and icing his neck, taking ibuprofen, and exercising his neck.
Bovill returned to the emergency room on April 4, 2019, with complaints of neck pain. He reported recently seeking chiropractic treatment but did not think it helped. After the emergency room visit, Bovill reported back to the medical clinic, where he detailed thoracic back pain and mild palpable tenderness over the cervical spine. Bovill received an injection of Toradol.
At trial, Bovill described the pain he experienced from his car accident as different than the pain he experienced after his shoulder surgery. He testified at trial that after seeing the chiropractor, his neck pain resolved.
In October 2019, Bovill was hired by QPI. On November 9, Bovill was draining water from a cart that tipped over. As Bovill lifted the cart, he felt a pop in his shoulder. The injury was ultimately diagnosed as a right rotator cuff tear.
After seeking medical treatment at a local hospital, Bovill followed up with his primary care physician. Bovill was originally prescribed physical therapy (PT), which he participated in until December 2019. A December MRI revealed a full thickness rotator cuff tear. Because he was not making progress with PT, Bovill was referred to an orthopedic surgeon, Dr. Jack McCarthy. McCarthy recommended surgery to repair his rotator cuff.
Bovill began light-duty work after his injury and continued light-duty work until his shoulder surgery. During this time, he continued working on a full-time basis. At work, he labeled, bagged, and sealed products.
On January 2, 2020, Bovill had surgery to repair his rotator cuff. The operative report described that Bovill was placed on anesthesia without difficulty and was then rolled into the left lateral decubitus position. After the surgery, Bovill was taken to a recovery room in stable condition.
According to McCarthy's post-operative reports, Bovill had a follow-up appointment 10 days after his surgery, at which time he denied any post-operative problems. It was noted that he had mild swelling and tightness in his shoulder. McCarthy released Bovill to return to work on January 20, 2020, with the restrictions that Bovill did not do any lifting over 1 pound with his right arm, no overhead work, and kept his sling on. Bovill was given modified-duty work that was consistent with his medical restrictions.
Bovill testified that on January 27, 2020, he slipped on ice in the parking lot while he was walking into work and recalled that he was able to see McCarthy the same day as the fall. However, McCarthy's office notes of January 28 indicate that Bovill had slipped "the day before yesterday." He reported feeling acute and severe pain over his right shoulder but did not experience a popping event or subluxation. He also told McCarthy that he missed one day of work that week and had left early on January 28, because the pain was too significant. McCarthy did not think Bovill sustained a significant injury to his shoulder and that the "flare" would settle down over time.
Despite Bovill's contention that the fall occurred in the company parking lot, an email from his human resource director, Laura Nelson, documents that he told her he had slipped on ice at home on Sunday, January 26, 2020. Nelson confirmed this in her trial testimony. QPI's records show Bovill missed work on Monday, January 27, and Tuesday, January 28, because he fell on the ice.
Bovill started PT again on February 28, 2020. On March 6, which was his fourth PT visit, Bovill's PT notes indicate he reported a sharp pain from his neck down to his shoulder that comes and goes. He stated the pain began 2 to 3 weeks prior. His physical therapist thought it was a muscle spasm.
On March 9, 2020, Bovill reported improvements in both his shoulder and neck pain. Bovill continued to progress in PT, as he made advancements at each appointment. By March 18, Bovill was not reporting any major pain or discomfort. He also reported that he had his "best night yet last night regarding pain levels."
Bovill returned to PT on May 7, 2020, for an unplanned session, because his shoulder "froze up" at work while he was performing his job duties. Bovill said his shoulder "suddenly had pain and he couldn't move it." PT notes indicate that Bovill experienced increased pain from scapula palpations. By May 22, Bovill was reportedly progressing through therapy again and able to decrease his pain. By June 1, Bovill reported being able to perform functional daily activities with little difficulty.
Bovill's supervisor, Amy Ruppart, testified that Bovill was able to complete his work while he was on light and modified duty. However, on June 16 and 17, 2020, Bovill "no called-no showed" to work. Ruppart explained that if an employee "no called-no showed" two times in a calendar year, it was considered a voluntary resignation. Consequently, Bovill turned in his equipment and did not return to work at QPI.
In September 2020, Bovill was still experiencing pain in his neck, so McCarthy referred him to a neurosurgeon, Dr. Timothy Burd. McCarthy also recommended that Bovill get an MRI of his neck. However, the MRI was not completed until March 2021, because QPI would not authorize it. Bovill also completed a Functional Capacity Evaluation (FCE) on September 14, 2020. The results indicated that Bovill was able to work at the light-medium physical demand level.
After Bovill stopped working at QPI, he applied for unemployment benefits in September or October 2020. In his application, he represented that he was physically capable of working at that time. But after his job search failed to produce employment, he filed for social security disability benefits. In his application for social security disability benefits, Bovill described himself as unable to work, consistent with the Social Security Administration doctor's findings. Bovill clarified that although he testified in his deposition of July 2021 that he could work, he would still be in pain and was willing to work through the pain to provide for his family.
Burd examined Bovill in October 2021. He recommended a three-level fusion from C4 to C7.
Bovill testified that this was his fourth rotator cuff surgery, and the third on his right shoulder. Bovill claimed that he began feeling the pain in his neck shortly after the surgery, and he told McCarthy about the neck pain during his second visit and every visit after.
Bovill explained that his neck pain is so severe that it prevents him from standing up straight and causes him to lean forward. He can only do things at home for a short period of time, and then he must sit down. If he lays down, he cannot roll over without feeling neck pain. The pain prevents him from falling asleep.
Nelson testified that it...
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