Dupell v. Ford Storage & Moving & Vanliner Ins. Co.
| Decision Date | 03 October 2017 |
| Docket Number | No. A-16-1163.,A-16-1163. |
| Parties | MICHAEL DUPELL, APPELLEE, v. FORD STORAGE & MOVING AND VANLINER INSURANCE COMPANY, APPELLANTS. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the Workers' Compensation Court: JULIE A. MARTIN, Judge. Affirmed.
Brian D. Moore, of Larson, Kuper, Wenninghoff & Carney, P.C., L.L.O., for appellants.
Terry M. Anderson and Michael W. Khalili, of Hauptman, O'Brien, Wolf & Lathrop, P.C., for appellee.
Ford Storage & Moving (Food Storage) and Vanliner Insurance Company (collectively the Appellants) appeal from the Nebraska Workers' Compensation Court's award of benefits to Michael Dupell. Because we find the evidence sufficient to support the award, we affirm.
The present appeal primarily concerns the nature and extent of the injury sustained by Dupell as a result of his accident at Ford Storage in November 2014 where Dupell was employed. Dupell was 53 years old at the time of trial. Although some evidence suggests he had a degree in micro accounting, he testified that he only completed 2½ years of college between 1989 and 1991 and did not earn a degree. He briefly did some accounting work in 1997 and had some managerial experience in the 1990s.
Dupell has been employed at Ford Storage since September 1999. His initial duties at Ford Storage primarily included assembling and delivering furniture. Immediately prior to the November 2014 injury at issue in this case, Dupell's duties included "[l]oading, unloading trucks sometimes by hand, forklift, deliveries, driving a truck, making deliveries, [and] whatever [Ford Storage] needed [him] to do around the warehouse." A company representative described Dupell's position prior to the accident as the "odd-job guy" that "helped us with different aspects." Dupell had been in that position for approximately 1½ to 2 years.
Dupell has had a number of prior work-related injuries, some with Ford Storage and some with other employers. As relevant to the present appeal, in January 2007, Dupell was involved in a motor vehicle accident while driving a Ford Storage truck. According to Dupell, he sustained injuries to his neck and back in that accident, although the injury was primarily to his neck. Dupell eventually accepted a lump sum payment in connection with that accident. Dupell testified at trial in the present case to his understanding that the lump sum payment had been to compensate him for the 5-percent impairment rating his doctor had assigned. In his testimony, Dupell could not recall if the lump sum payment was for the cervical injury. Exhibit 16, which included documents relating to the lump sum payment for the 2007 injury, showed that the impairment rating was for the cervical injury and not a back injury. However, the court ultimately chose not to admit this exhibit into evidence.
The present accident occurred on November 3, 2014, while Dupell was making a delivery to a local warehouse for Ford Storage. Dupell injured his lower back while "pull[ing]" a pallet that weighed approximately 1,000 pounds into his truck. Dupell finished his shift and sought medical treatment the following morning. Dupell underwent a conservative course of treatment, including medications, physical therapy, and injections.
On March 20, 2015, Dupell underwent a functional capacity evaluation (FCE), but accurate "functional restrictions" could not be outlined for Dupell due to "his invalid test results." During the FCE, Dupell "demonstrated numerous findings of inconsistent and submaximal effort." The physical therapist who conducted the FCE observed that Dupell's "subjective complaints of pain and pain behaviors appear[ed] out of proportion with his objective findings of dysfunction." The physical therapist also noted that Dupell "appear[ed] safe to function at higher levels than he demonstrated during this exam."
Conservative treatment did not relieve Dupell's pain, and he was taken off work in late August or early September 2015 following an "incident involving a loss of continence" and was told by his family doctor to see Dr. Stephen Doran, the neurosurgeon who had treated him previously in connection with the November 2014 accident. On October 8, following "an updated lumbar MRI," Doran compared that MRI to one done on November 12, 2014. Although the radiologist thought the scans were unchanged, Doran felt that there had been "a slight but definitive progression in [Dupell's] disc bulge at L4-5 on the right side." Doran noted that he did not think that there was "significant nerve root compression of the L5 nerve root" shown in the 2014 MRI, but that the disc bulge had since "worsened slightly" so that the updated MRI showed that "now there is demonstrable compression of the L5 nerve root that would correlate with [Dupell's] leg pain." As Dupell had "failed an exhaustive course of conservative care," Doran recommended a"right L4-5 microendoscopic discectomy," which Doran felt "would have a reasonable probability of relieving [Dupell's] leg pain with unpredictable effect on his back pain."
Dr. Benjamin Bixenmann conducted an independent medical examination of Dupell on November 24, 2015. Bixenmann was provided with "several documents from consulting specialists" Dupell had seen previously and after the exam was provided with MRIs of Dupell's lumbar spine taken in November 2014 and September 2015. Based on his examination of Dupell and the materials provided, Bixenmann opined that Dupell had reached MMI "given his current treatment for his diagnosis of lumbar intervertebral disc herniation with radiculopathy sustained during a work injury on 11/3/14" and calculated a total whole person impairment of 9 percent. He also thought that "surgical decompression of the right L5 nerve via a microdiscectomy procedure at the L4-5 level would improve [Dupell's] current pain condition." Bixenmann also recommended a return to work with a 20-pound lifting restriction and "limited bending and twisting at the waist given his current condition."
On January 29, 2016, Doran performed the recommended surgery. Following surgery, Dupell participated in physical therapy, which he testified did not help with his pain. On March 31, the therapist noted that Dupell's progress was "[f]air to poor" because Dupell was "still so limited by pain and guarding that he has difficulty [with] bending [and] lifting." After his last physical therapy appointment on April 12, Dupell transitioned to a "work hardening" or "work conditioning" program. Dupell was last seen by Doran on April 27. At that time, Doran stated that Dupell's residual back pain following surgery continued to improve, although he still had pain with bending. Dupell was "progressing" and had about 3 weeks left of the work conditioning program. Doran stated further that once Dupell completed his work conditioning, he would be able to return to work "full time without restrictions" on about May 23.
Dupell returned to work for Ford Storage on May 23, 2016 as a forklift driver. A Ford Storage representative testified that Dupell's pre-injury job (the local delivery position) no longer existed at the time of his release to work. The job duties of the forklift driver position are similar to Dupell's previous job duties without "the delivery aspect." Dupell testified that he is able to do his current job, that no accommodations are being made for him, but that he still has pain in his back. At the time of trial, he was working full-time without restrictions, albeit "[w]ith pain." Although overtime hours were available to Dupell at the time of trial, he testified that he rarely accepts them because of his continued pain.
In a letter dated August 8, 2016, Doran stated that while Dupell had residual back and buttock pain, he was placed at maximum medical improvement (MMI) on June 29. Doran noted that Dupell was "capable of working his normal job" and that "no follow-up was scheduled." Doran stated that "using the AMA Guide to the Evaluation of Permanent Impairment," Dupell "qualified for a DRE Lumbar Category 3 with a history of herniated disc treated surgically," which "qualifies him for a 13% impairment of the whole person."
Dupell made phone calls to Doran's office after returning to work, but had been "playing phone tag with the nurse" and had not obtained another appointment for his continued back pain. However, on August 15, 2016, Doran ordered an FCE for Dupell's diagnosis of "[o]ther intervertebral disc displacement, lumbar region." The FCE, completed on August 25, had a 76 percent validity measure and indicated that Dupell could work at the sedentary to light dutyphysical demand level for an 8-hour work day. Restrictions on constant standing and walking prevented Dupell from being placed in the light to medium physical demand category. In a September 15 letter to Dupell's attorney, Doran indicated that he had reviewed the FCE, agreed with the report, and placed Dupell "at a sedentary to light duty permanent restriction 8 hour work day."
Dupell was asked at trial whether he was currently following the restrictions of the August 2016 FCE at work. He indicated that he was not. Dupell testified that in each 2-week period he was currently working three 12-hour shifts the first week followed by four 12-hour shifts the next week and that he was "[r]iding a forklift about 10 hours, 12 hours a day." He testified that Ford Storage had not dropped his work schedule down to 8 hours because of the restrictions and had not provided longer breaks, more breaks, or lighter duty. Dupell acknowledged, however, that he had never provided Ford Storage with any restrictions and that he never provided them with the FCE report. The Ford Storage representative who...
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