Castro v. Ibp, Inc.

• Decision Date: 14 October 2003
• Docket Number: No. A-02-1448.,A-02-1448.
• Parties: Dadila Castro, appellant and cross-appellee, v. IBP, inc., appellee and cross-appellant.
• Court: Nebraska Court of Appeals

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Dadila Castro, appellant and cross-appellee, v. IBP, inc., appellee and cross-appellant.

No. A-02-1448.

Court of Appeals of Nebraska.

Filed October 14, 2003.

Appeal from the Nebraska Workers' Compensation Court. Affirmed in part, and in part reversed.

Lee S. Loudon, of Law Office of Lee S. Loudon, P.C., L.L.O., for appellant.

Riko E. Bishop and Joseph F. Bachmann, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., and Bruce M. Smith for appellee.

Hannon and Inbody, Judges, and Buckley, District Judge, Retired.

Inbody, Judge.

I. INTRODUCTION

Dadila Castro appeals the December 13, 2002, order of the review panel of the Workers' Compensation Court affirming in part and in part reversing and remanding the trial court's order requiring IBP, inc., to pay for medical expenses resulting from Castro's January 6, 2000, surgery. IBP cross-appeals, alleging that the trial court and the review panel erred in determining the nature and extent of Castro's injuries and in ignoring the court-appointed vocational rehabilitation counselor's supplemental report which concluded that Castro had no loss of earning power. For the reasons stated herein, we affirm in part, and in part reverse.

II. STATEMENT OF FACTS

On August 18, 2000, Castro filed a petition wherein she alleged that on or about November 26, 1999, she sustained injuries in an accident arising out of and in the course of her employment by IBP. The matter came on for trial on July 17, 2001. At the outset of trial, the parties stipulated that Castro was injured in an accident on November 26, 1999, which accident arose out of and in the course of her employment by IBP. The parties also stipulated that at the time of the accident, Castro had an average weekly wage of $491.96.

Castro was born in Guatemala on November 17, 1966. At the time of trial, she was 34 years old. Castro completed 6 years of school in Guatemala and is able to read and write Spanish, but can read, speak, and write the English language only "a little bit."

Castro began working for IBP in the special trim department on April 25, 1994, which position involved cutting the fat off meat. She testified that on November 26, 1999, she was working next to a moving belt conveying trays of meat. She reached out to pull a tray of meat, weighing approximately 45 pounds, from the belt and felt pain in the lower part of her back, along her beltline, and in her groin and left leg. Castro reported her injury and was taken to the infirmary.

On November 30, 1999, Castro was treated by Dr. Francisca Acosta-Carlson, who diagnosed Castro with a possible hernia, which Dr. Acosta-Carlson noted was above Castro's incision line from a 1997 cesarean section. Dr. Acosta-Carlson referred Castro to Dr. Larry Bragg. Dr. Bragg diagnosed Castro as having "a painful incisional hernia related to a previous cesarean section." On January 6, 2000, Dr. Bragg performed surgery upon Castro to correct the hernia; however, although no hernia was located, Dr. Bragg removed a subcutaneous lipoma, a fatty tumor which may or may not be malignant. Dr. Bragg stated in his report dated January 6, 2000, that the lipoma "could certainly have contributed to her symptoms."

After the surgery, Castro experienced no relief from her pain and was again examined by Dr. Acosta-Carlson, who diagnosed Castro as having postsurgical neuralgia. Dr. Acosta-Carlson testified that Castro's symptoms should eventually cease. According to Dr. Acosta-Carlson, the neuralgia was caused by the cutting of nerves during the surgery to determine whether Castro had a hernia. During her deposition, Dr. Acosta-Carlson testified that Castro had certain restrictions upon returning to work, namely, that Castro should be allowed to sit or stand as needed.

Castro returned to work in February 2000 on light duty. On March 13, Castro was told by IBP employees that she had to either return to regular duty or "go home" because her injury was not job related; Castro was off work from March 14 through May 22. On May 22, Castro returned to work; however, she continued to experience abdomen, groin, and back pain. Castro again left employment after approximately 3 weeks.

Dale Householder, a certified vocational rehabilitation counselor appointed by the court, stated in his report dated September 1, 2000, that Castro had an 81- to 85-percent loss of earning power due to her lack of education and her physical restrictions. However, IBP asked Householder to evaluate Castro based upon the assumption that Castro had no restrictions, after which evaluation Householder opined that Castro had no loss of earning power. Householder's opinion that Castro had no loss of earning power was based upon the assumption that Dr. Acosta-Carlson had released Castro to return to work with no restrictions.

On April 3, 2000, Castro was seen by Dr. Dennis P. McGowan. He diagnosed Castro as having chronic low-back pain, left meralgia paresthetica, and an undetermined etiology of left groin pain. Dr. McGowan also assigned certain restrictions wherein Castro should avoid sitting or standing for more than 45 minutes without being allowed to move and should lift no more than 25 pounds occasionally, 10 pounds frequently, and 5 pounds continuously. Dr. McGowan also stated that Castro should not bend or twist her back when lifting.

Dr. McGowan was of the opinion that Castro had a 7-percent impairment of the whole person. However, in a report dated November 27, 2000, Dr. McGowan stated that an MRI done on September 26 revealed "desiccation of the L3-4 and L4-5" disks, "central herniation on L4-5," and a "high intensity annular tear of the 3-4 disk with a small bulge." In a letter dated April 17, 2001, Dr. McGowan stated that he was of the opinion that Castro was not yet at maximum medical improvement and had a 10-percent whole body impairment.

Castro testified that she again returned to work on September 18, 2000, where she remained until she sustained another accident in April 2001, which accident is not a part of this appeal. She also testified that she always has pain in her back but that she experiences "very strong pain" if she lifts anything over 30 pounds. She also experiences constant pain in her groin area. Castro has difficulty sitting for extended periods of time without experiencing back pain, experiences back and groin pain when standing, and cannot twist, bend, or reach without pain.

On June 3, 2002, the trial court entered an order stating that the court found that Castro suffered a low-back injury as a result of the November 26, 1999, accident as diagnosed by Dr. McGowan and that she reached maximum medical improvement on April 13, 2000. The court also found that Castro suffered a 45-percent loss of earning power as a result of the November 26, 1999, accident. The court further found that the medical expenses related to the surgery were reasonable and necessary because the surgery was a natural and logical consequence of the attempted diagnosis of Castro's symptoms. The court awarded Castro $327.98 per week for 19 1/7 weeks for temporary total disability and $147.59 per week for 280 6/7 weeks for Castro's 45-percent loss of earning power. The court did not award Castro vocational rehabilitation benefits because at the time of trial, she was employed at IBP in a job which she was tolerating physically. The court ordered IBP to pay for any future medical expenses which are reasonably necessary due to Castro's injuries incurred in the November 1999 accident.

IBP appealed to the review panel, and on December 13, 2002, the review panel affirmed in part and in part reversed and remanded the judgment of the trial court. Specifically, the review panel found that the trial court erred in failing to exclude the costs of Castro's surgery and treatment. The review panel stated:

[I]t is obvious on its face the expenses were unreasonable due to the fact that the Court found that [Castro] suffered a back injury and then awarded medical expenses for a lipoma removal on what is known as a "rule out" basis to determine a diagnosis. If the examining doctors in a good faith attempt to find a cause of [Castro]'s pain would have performed the surgery and found nothing then the review panel could agree that the cost of this exploratory surgery would have been compensable . . . . But once the basis of [Castro]'s complaint is found and it is unrelated to the accident the treatment cannot be awarded.

The review panel remanded the matter to the trial court with direction to exclude those expenses and any disability benefits resulting from complications of the January 6, 2000, surgery. Castro timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Castro's sole assignment of error is that the review panel erred in reversing the trial court's award of medical expenses for the cost of Castro's January 6, 2000, surgery and related treatment.

In its cross-appeal, IBP assigns as error that the trial court and the review panel erred in (1) determining the nature and extent of Castro's injuries and (2) ignoring the court-appointed vocational rehabilitation counselor's supplemental report which concluded that Castro had no loss of earning power.

IV. STANDARD OF REVIEW

A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that the court acted without or in excess of its powers; the judgment, order, or award was procured by fraud; there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or the findings of fact by the compensation court do not support the order or award as it exists. Neb. Rev. Stat. § 48-185 (Cum. Supp. 2002). As to questions of law, an appellate court in workers' compensation cases is obligated to make its own determinations. Smart v. Scrivner/Food 4 Less, 254 Neb. 111, 574 N.W.2d 505 (1998); Zavala v. ConAgra Beef Co., 11 Neb. App. 235, 647 N.W.2d 656 (2002), reversed in...