Cervantes v. Omaha Steel Castings Co.

• Decision Date: 16 April 2013
• Docket Number: No. A–12–210.,A–12–210.
• Citation: 20 Neb.App. 695,831 N.W.2d 709
• Parties: Rafael CERVANTES, appellant, v. OMAHA STEEL CASTINGS CO., appellee.
• Court: Nebraska Court of Appeals

20 Neb.App. 695

831 N.W.2d 709

Rafael CERVANTES, appellant,

v.OMAHA STEEL CASTINGS CO., appellee.

No. A–12–210.

Court of Appeals of Nebraska.

April 16, 2013.

Syllabus by the Court

[20 Neb.App. 695]1. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court, a higher appellate court reviews the trial judge's findings of fact, which will not be disturbed unless clearly wrong.

2. Stipulations: Parties: Trial: Courts. Stipulations voluntarily entered into between the parties to a cause or their attorneys, for the government of their conduct and the control of their rights during the trial or progress of the cause, will be respected and enforced by the courts, where such stipulations are not contrary to good morals or sound public policy.

[20 Neb.App. 696]3. Stipulations: Parties. Parties are bound by stipulations voluntarily made, and relief from such stipulations after judgment is warranted only under exceptional circumstances.

4. Stipulations: Parties: Courts: Good Cause. Courts will enforce valid stipulations unless some good cause is shown for declining to do so, especially where the stipulation has been acted upon so that the parties could not be placed in status quo.

5. Stipulations. Stipulations cannot be contradicted by evidence tending to show the facts to be other than as stipulated.

6. Pleadings: Waiver. An admission made in a pleading on which the trial is had is more than an ordinary admission; it is a judicial admission and constitutes a waiver of all controversy so far as the adverse party desires to take advantage of it, and therefore is a limitation of the issues.

7. Pleadings: Evidence. Judicial admissions must be unequivocal, deliberate, and clear, and not the product of mistake or inadvertence.

8. Pleadings. An admission in an answer does not extend beyond the intendment of the admission as clearly disclosed by its context.Timothy S. Dowd, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellant.

Harry A. Hoch III, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellee.

IRWIN, MOORE, and PIRTLE, Judges.

PIRTLE, Judge.

INTRODUCTION

Rafael Cervantes appeals from the award of the Nebraska Workers' Compensation Court filed February 22, 2012. The court rejected certain stipulations of the parties and found Cervantes was not permanently and totally disabled as a result of multiple scheduled member injuries. The court also found that Cervantes was entitled to vocational rehabilitation services from June 8, 2008, to July 21, 2011, but that he would not be entitled to services beyond that period of time.

BACKGROUND

Cervantes was born in April 1958, and he does not read, write, or speak English. He attended school through the sixth grade in Mexico, and his previous work experience included work as a field hand in Mexico.

In the United States, Cervantes worked for Omaha Steel Castings Co. (Omaha Steel). This job included picking up containers of food weighing greater than 10 pounds and required overhead lifting and reaching. The qualifications for Cervantes' position included the ability to work at a fast pace and lift up to 100 pounds.

On August 14, 2006, Cervantes was standing on a steel beam, suspended approximately 5 feet in the air. He slipped off the beam, and as he fell, his right arm was pulled, causing significant pain. On August 18, Cervantes was diagnosed with a “SLAP II tear of the superior labrum” in the right shoulder, and he was treated conservatively for his injury. On August 24, Cervantes was advised that in order to adequately treat the labrum tear, it would be appropriate for him to undergo surgery, which he elected not to undergo. Cervantes returned to work for Omaha Steel shortly after the accident, primarily using his left arm to perform his work duties.

Cervantes sought a second opinion from Dr. Kirk Hutton, who also recommended surgery on Cervantes' right shoulder, and Cervantes refused the treatment. On February 14, 2007, Dr. Hutton issued a report with his diagnosis of Cervantes' injuries, noting that if he did not have surgery, he had reached maximum medical improvement and sustained an 18–percent permanent partial impairment rating of his upper right extremity. Dr. Hutton set permanent work restrictions of “light work with lifting 20 pounds maximum and frequent lifting and/or carrying of objects weighing up to 10 pounds.” He recommended that Cervantes “keep work below shoulder level and close to the body.” Dr. Hutton stated Cervantes would need future medical care and treatment, including possible surgery, as well as “physical therapy and/or anti-inflammatory and pain medicines on occasion.” On July 25, Dr. Hutton modified the permanent restrictions to include only “sedentary work, 10 pounds lifting maximum.”

On November 8, 2007, Cervantes saw Dr. D.M. Gammel for pain in his left shoulder. Dr. Gammel noted that there was “no known specific injury,” but that Cervantes did not have the use of his right shoulder, as he needed surgery. Dr. Gammel also noted that Cervantes had been using his left shoulder exclusively, with increased pain and difficulty. He later diagnosed the injury as a “labral tear.” On December 5, Cervantes saw another doctor for a left shoulder MRI, which showed a “[t]ear of superior labrum extending anterior to posterior consistent with Type 2 SLAP tear of the glenoid labrum.”

Cervantes' final day of employment at Omaha Steel was January 16, 2008. He has not been able to perform any of the types of work he completed previously because of the restrictions caused by his injuries.

After an MRI on December 5, 2007, Dr. Hutton's February 27, 2008, “Progress Note” diagnosed Cervantes with “[b]ilateral shoulder SLAP lesions.” Dr. Hutton prescribed “a sedentary work restriction keeping work below shoulder level and close to the body,” with respect to the shoulder injuries.

Dr. Hutton's letter report on April 4, 2008, noted the current diagnosis for the left shoulder was a “SLAP II tear.” Dr. Hutton could not say with a reasonable degree of medical certainty that the tear was caused by Cervantes' work activities, but the types of duties that Cervantes described certainly may have aggravated his condition causing it to become painful. He said Cervantes reported dealing with his right shoulder pain by overcompensating and using his left shoulder, subsequently developing pain. Dr. Hutton recommended surgery, which Cervantes refused, opting to treat his left shoulder more conservatively. Dr. Hutton noted Cervantes would need physical therapy and “continued anti-inflammatory usage” to treat both shoulders, and he recommended vocational training to help Cervantes get a job which did not require lifting, pushing, or pulling, because these activities would aggravate his shoulder conditions. He stated that if Cervantes elected not to have surgery on his left shoulder, he had reached maximum medical improvement and had sustained a 12–percent permanent partial impairment to each upper extremity.

On December 26, 2008, Dr. Hutton completed a medical questionnaire, diagnosing Cervantes with a left shoulder “SLAP II lesion.” He stated the lesion was aggravated by Cervantes' work activities with Omaha Steel. He assigned a 12–percent permanent impairment to Cervantes' left upper extremity “as a result of the work-related aggravation he sustained to a pre-existing left shoulder condition as a result of performing his work activities” for Omaha Steel.

Cervantes underwent vocational rehabilitation training from June 8, 2008, through July 21, 2011. During this period, and throughout the trial, Cervantes was not a legal resident of the United States, but he represented that he was in order to obtain vocational rehabilitation services.

Ted Stricklett, a vocational rehabilitation consultant, worked with Cervantes to assist with classes in English as a second language. In September 2010, Stricklett sent an e-mail to counsel stating, “If consideration is given to [Cervantes'] work restrictions per Dr. Hutton (Sedentary work while keeping work below shoulder level and close to his body) and if I were to assume vocational rehabilitation is unsuccessful, then it would be my opinion that ... Cervantes would be competitively unemployable.” On December 15, 2011, Cervantes underwent a psychological evaluation. The evaluation determined Cervantes' intellectual functioning is “borderline to low average.” He is also functionally illiterate and not able to communicate effectively without the aid of an interpreter.

On July 21, 2011, Stricklett wrote a report stating that Cervantes was unsuccessful in his vocational rehabilitation and that it was still his opinion Cervantes was competitively unemployable. On the same day, Cervantes filed his petition alleging he sustained bilateral upper extremity injuries in an accident on August 14, 2006, arising out of and in the course of his employment with Omaha Steel. He also alleged he was entitled to compensation from the company.

Omaha Steel's answer stated:

[Omaha Steel] admits that on August 14, 2006, [Cervantes] was an employee of ... Omaha Steel ..., and while employed on said date and while engaged in his duties of employment, he suffered an injury to both of his shoulders as a result of an accident arising out of and in the course of his employment....

The answer also stated that the injury sustained to Cervantes' right shoulder and upper extremity was the result of being struck by a piece of equipment and that he sustained an injury to his left shoulder and upper extremity “as a result of overcompensating for his related right shoulder/ upper extremity injury.” Further, the answer admitted Cervantes “sustained a 12% impairment to his left upper extremity and an 18% impairment to his right upper extremity as a result of the aforementioned accident and injuries.”

A pretrial conference was held on January 5, 2012, and a pretrial order was issued on ...