Frauendorfer v. Lindsay Mfg. Co., Inc.

• Citation: 639 N.W.2d 125,263 Neb. 237
• Decision Date: 15 February 2002
• Docket Number: No. S-01-778.,S-01-778.
• Parties: Harold FRAUENDORFER, Appellee, v. LINDSAY MANUFACTURING COMPANY, INC., Appellant.
• Court: Supreme Court of Nebraska

639 N.W.2d 125

263 Neb. 237

Harold FRAUENDORFER, Appellee, v. LINDSAY MANUFACTURING COMPANY, INC., Appellant.

No. S-01-778.

Supreme Court of Nebraska.

February 15, 2002.

Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Rolf Edward Shasteen, Lancaster, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

A trial judge of the Workers' Compensation Court found that Harold Frauendorfer suffered a work-related accident on April 17, 1995, while employed with Lindsay Manufacturing Company, Inc. (Lindsay). The trial judge awarded him temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, and permanent total disability (PTD) benefits. The trial judge also ordered that payments be made beginning from the date of the injury. The Workers' Compensation Court review panel affirmed except for determining that Lindsay was entitled to a credit against a portion of the award, an issue which is not a part of this appeal.

We determine that there was sufficient evidence to support the trial judge's award and that the presumption of correctness afforded to the loss of earning power evaluation from the agreed-upon rehabilitation counselor under Neb.Rev.Stat. § 48-162.01(3) (Supp.1999) was rebutted. Accordingly, we affirm.

BACKGROUND

In June 1999, Frauendorfer filed a petition with the Nebraska Workers' Compensation Court, seeking workers' compensation benefits for medical costs, TTD, TPD, and PTD. Before trial, the parties stipulated to the following facts: (1) Frauendorfer had suffered an injury to his back in an accident arising out of and in the course and scope of his employment with Lindsay on April 17, 1995, (2) all of his medical expenses had been paid, and (3) he reached maximum medical improvement (MMI) on February 3, 1999. The parties also agreed to Karen L. Stricklett and Tori L. Stratman as vocational rehabilitation counselors under § 48-162.01(3). Finally, the exhibits received at trial were stipulated to by the parties. The trial testimony and exhibits showed the following facts:

Frauendorfer had been employed with Lindsay since 1974 and worked as a tube mill operator when he was injured. He had an eighth grade education and, at the time of the accident, was 51 years old and earned an average weekly wage of $499.26. He injured his back while attempting to position an oversized piece of metal on the tube mill. After the accident, he was prescribed a regimen of pain pills, muscle relaxants, and physical therapy, but he continued to work approximately the same amount of hours and at the same rate of pay until September 27, 1995.

On October 5, 1995, Dr. Matthew C. Reckmeyer performed a hemilaminectomy and diskectomy on Frauendorfer's lower back for a herniated disk. Frauendorfer did not work from that date until March 17, 1996. On January 22, 1996, however, Reckmeyer had expressed an opinion that Frauendorfer could return to work in a limited capacity and released him to return for 6 to 8 hours per day, as could be tolerated.

On March 18, 1996, Frauendorfer returned to light-duty work at Lindsay. The parties stipulated that after his return, Frauendorfer worked at a reduced rate of pay, reduced hours, or both. He testified that after his first surgery, he worked only between 4 to 5 hours per day at light duty because that was all he could tolerate. In April, Reckmeyer released Frauendorfer to return to light-duty work, with restrictions for no lifting over 30 pounds occasionally and no squatting, stooping, crawling, or prolonged sitting. In October, a functional capacity evaluation was performed. The physical therapist classified Frauendorfer in the medium-work category but found he was not qualified for all medium-work jobs.

In March 1997, Reckmeyer issued a final report in which he assigned Frauendorfer a 20-percent permanent partial impairment due to his on-the-job injury and surgery. He also noted that he had referred Frauendorfer to Dr. H. Randal Woodward for possible further surgery.

A loss of earning power evaluation was performed in August 1997, in which Stricklett reviewed Frauendorfer's medical history, functional capacity evaluations, and employment and wage histories. Stricklett concluded that Frauendorfer's loss of access to suitable jobs in the Nebraska labor market was 31 percent and that his loss of earning capacity would be 20 percent if he were able to handle overtime hours at Lindsay, 30 percent if he were restricted to an 8-hour shift at Lindsay, and 40 to 50 percent if he were separated from his employment with Lindsay.

Frauendorfer continued to experience pain in his lower back and legs, and he was advised by Woodward to have a second surgery. February 5, 1998, was the last day that Frauendorfer worked at Lindsay. On February 11, Woodward performed an anterior spine fusion. Frauendorfer's pain persisted after the second surgery, however, and Woodward recommended a third surgery because he believed that Frauendorfer's spine was probably not solidly fused at the fusion site. Frauendorfer, however, was unwilling to undergo a third surgery. Woodward then referred him for another functional capacity evaluation. After receiving that report, Woodward agreed with a recommendation of light duty at 8 hours per day, with restrictions of lifting 30 pounds occasionally and 20 pounds more frequently, and assigned a 15-percent permanent partial impairment to his whole body. As noted, the parties stipulated that his MMI was reached on February 3, 1999.

In May 1999, Lindsay offered Frauendorfer employment within the restrictions of the functional capacity evaluation—i.e., a "light duty" job which would allow him to sit or stand as he felt necessary and which did not require heavy lifting—but he did not respond to the offer. He testified that since the second surgery, he was able to work around the house for only 1 to 2 hours before needing to lie down and relieve the pain in his back. He also stated that he took narcotic analgesics continually for pain, which caused him to be drowsy.

In May 1999, Stratman completed a loss of earning capacity analysis for Frauendorfer. Stratman concluded that if Frauendorfer returned to light-duty work at Lindsay, his loss of earning capacity would be approximately 30 percent, and that if he separated from his employment at Lindsay, his loss of earning capacity would be 60 percent.

In June 1999, James T. Rogers also did an earning capacity analysis. He concluded that Frauendorfer did not entirely fit within the "light duty" work classification because he was unable to either sit or stand for extended periods of time and because of his restrictions against bending, crouching, and stooping. Rogers considered him unsuitable for industrial production or assembly work. Considering Frauendorfer's physical limitations, age of 55, limited eighth grade education, and lack of transferrable skills, Rogers concluded that Frauendorfer was totally disabled under the odd-lot doctrine.

TRIAL JUDGE'S FINDINGS

The trial judge awarded Frauendorfer TTD benefits in the amount of $332.84 per week from October 5, 1995—the date of his first surgery—until January 21, 1996, the day before Reckmeyer expressed an opinion that Frauendorfer could return to work in a limited capacity. In addition, the trial judge awarded him TPD benefits in the amount of $99.85 per week for the period from January 22, 1996 to February 10, 1998—the day before his second surgery—an amount that the trial judge stated represented a TPD of 30 percent. This award was based upon the trial judge's finding that the evidence showed Frauendorfer frequently worked less than 8 hour shifts during this period or received a lower wage. The trial judge conceded that there was no medical opinion that Frauendorfer was unable to work 8-hour shifts during this time. He, however, relied upon Stricklett's 1997 report, in which she concluded that Frauendorfer would have a 30-percent loss of earning capacity at Lindsay if he were restricted to 8-hour shifts.

The trial judge awarded Frauendorfer a second period of TTD benefits from February 11, 1998—the day of his second surgery—to February 2, 1999, the day before his MMI. Concerning Frauendorfer's permanent disability, the trial judge acknowledged that Lindsay had offered Frauendorfer employment with a sit-or-stand option and which required little physical exertion. But the trial judge specifically stated that he believed Frauendorfer's testimony that he needed to lie down to relieve his back pain from either prolonged sitting or standing. Furthermore, the trial judge stated that he found Roger's opinion persuasive. From this evidence, the trial judge awarded Frauendorfer PTD benefits from February 3, 1999, the date of his MMI, and further PTD benefits as long as he remained permanently and totally disabled.

REVIEW PANEL'S FINDINGS

Lindsay appealed the award to the review panel of the Nebraska Workers' Compensation Court. The review panel concluded that the trial judge had correctly determined that Frauendorfer was entitled to PTD benefits from the date of his injury to the day before his first surgery. The review panel, however, determined that the trial judge had erred in failing to provide credit for the wages Lindsay paid to him during this time. Because the parties had stipulated that Frauendorfer continued to work full time during this period, the review panel concluded that the wages he had earned exceeded Lindsay's obligation to pay indemnity and reversed the award for total disability from April 18 to October 4, 1995. Frauendorfer has not cross-appealed from this portion of the review panel's order.

The review panel concluded that the trial judge (1) correctly calculated Frauendorfer's TPD benefits and (2) correctly awarded Frauendorfer PTD benefits based on Frauendorfer's testimony regarding his limitations and Rogers' opinion regarding...