Gardner v. Int'l Paper Destruction & Recycling
| Citation | 865 N.W.2d 371 |
| Decision Date | 17 July 2015 |
| Docket Number | No. S–14–815,S–14–815 |
| Court | Supreme Court of Nebraska |
| Parties | Bryant Gardner, Appellee, v. International Paper Destruction & Recycling, Appellant. |
Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellant.
Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch Law, P.C., L.L.O., Omaha, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Workers' Compensation: Appeal and Error.An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.
2. Workers' Compensation: Appeal and Error.On appellate review, the factual findings made by the trial judge of the Workers' Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.
3. Workers' Compensation: Appeal and Error.In workers' compensation cases, an appellate court determines questions of law.
4. Workers' Compensation.The Nebraska Workers' Compensation Act provides that when an employee suffers personal injury caused by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation from his or her employer if the employee was not willfully negligent at the time of receiving such injury.
5. Workers' Compensation: Proof.In a proceeding to modify a prior award, the employer has the burden of establishing a decrease of incapacity and the employee has the burden of establishing an increase.
6. Workers' Compensation: Words and Phrases.Under Neb.Rev.Stat. § 48–121 (Reissue 2010), a workers' compensation claimant may receive permanent or temporary workers' compensation benefits for either partial or total disability. “Temporary” and “permanent” refer to the duration of disability, while “total” and “partial” refer to the degree or extent of the diminished employability or loss of earning capacity.
7. Workers' Compensation.Compensation for temporary disability ceases as soon as the extent of the claimant's permanent disability is ascertained.
8. Workers' Compensation.Temporary disability benefits should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.
9. Workers' Compensation.When an injured employee has reached maximum medical improvement, any remaining disability is, as a matter of law, permanent.
10. Workers' Compensation.Temporary disability benefits are discontinued at the point of maximum medical improvement, because a disability cannot be both temporary and permanent at the same time.
11. Actions: Appeal and Error.The law-of-the-case doctrine reflects the principle that an issue litigated and decided in one stage of a case should not be relitigated at a later stage.
12. Workers' Compensation: Expert Witnesses: Physicians and Surgeons.The Workers' Compensation Court is the sole judge of the credibility and weight to be given medical evidence, even when the health care professionals do not give live testimony.
13. Workers' Compensation.Causation of an injury or disability presents an issue of fact.
14. Workers' Compensation.Whether a plaintiff in a workers' compensation case is totally and permanently disabled is a question of fact.
15. Judgments: Appeal and Error.In testing the sufficiency of the evidence to support the findings of fact, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence.
16. Workers' Compensation: Proof.A claimant is entitled to an award under the Nebraska Workers' Compensation Act for a work-related injury and disability if the claimant shows, by a preponderance of the evidence, that the claimant sustained an injury and disability proximately caused by an accident which arose out of and in the course of the claimant's employment, even though a preexisting disability or condition has combined with the present work-related injury to produce the disability for which the claimant seeks an award.
17. Workers' Compensation.A workers' compensation claimant can recover benefits when an injury, arising out of and in the course of employment, combines with a preexisting condition to produce a disability.
18. Workers' Compensation: Words and Phrases.Total disability does not mean a state of absolute helplessness. It means that because of an
injury (1) a worker cannot earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform or (2) the worker cannot earn wages for work for any other kind of work which a person of his or her mentality and attainments could do.
Bryant Gardner, the appellee, suffered an accident arising out of and in the course of his employment on April 16, 2009, while he was employed by the appellant, International Paper Destruction & Recycling (the employer). The Nebraska Workers' Compensation Court filed an “Award” on September 23, 2010, awarding temporary benefits to Gardner. The employer filed a petition to modify the award on May 6, 2013, alleging that Gardner had reached maximum medical improvement and had experienced a decrease in incapacity. In an order filed May 24, the compensation court found that Gardner had reached maximum medical improvement. After a trial on the employer's petition to modify, the compensation court filed a “Further Award” on August 8, 2014, in which the court applied the odd-lot doctrine and determined that, given Gardner's preexisting mental and cognitive deficits, and based upon his physical injuries that arose from the accident, Gardner was permanently and totally disabled. The employer appeals. We affirm.
On April 16, 2009, while employed by the employer as a truckdriver, Gardner was operating a semitrailer truck when he was involved in an accident in Omaha, Nebraska. Due to the accident, Gardner was briefly rendered unconscious and suffered injuries to his head, neck, and lower back. Gardner filed a petition in the Workers' Compensation Court on August 27, seeking compensation for his injuries.
The employer filed its answer on September 3, generally denying the allegations set forth in Gardner's petition and raising an affirmative defense of willful negligence.
After a trial was held on June 14, 2010, the compensation court filed its “Award” on September 23. The court stated that on April 16, 2009, Gardner was operating a semitrailer truck and that as he was exiting eastbound L Street to merge onto northbound Interstate 680, he failed to negotiate the circular entrance ramp and the semitrailer truck rolled. The court found that Gardner sustained a “ ‘closed head injury ’ ” in the accident of April 16 and that Gardner was unconscious for a brief period of time after the accident.
Gardner saw Dr. Kip Burkman on April 23, 2009. Dr. Burkman noted that Gardner's symptoms included headache, depression, anxiety, blurred vision, dizziness, neck pain, numbness and tingling, confusion, poor balance, and memory loss. The compensation court determined that Gardner's medical history showed that prior to the accident, Gardner had experienced all of the symptoms that Dr. Burkman listed in his report of April 23. The court further determined, based on medical reports, a CT scan of Gardner's head, and an MRI of Gardner's brain, that Gardner did not suffer any physical injury to his brain.
Gardner was seen by a neurologist, Dr. Scott Diesing. In a report dated November 5, 2009, Dr. Diesing noted that an MRI of Gardner's brain on May 6 was normal and that Gardner's neurological examination demonstrated a short-term recall impairment and mild deficits on a short test of mental status. Dr. Diesing noted that Gardner's complaints
were mostly consistent with the musculoskeletal injury as previously diagnosed. Gardner underwent an MRI examination of the cervical spine and the lumbar spine that showed a disk protrusion at the C4–5 and C5–6 levels and, additionally, a slight bulge of the lumbar spine at the S1–L5 level. Dr. Diesing recommended continued symptomatic care.
Gardner continued to complain of neck and back pain, and on November 12, 2009, Dr. Burkman referred him to another physician for a cervical epidural injection, which was performed on November 30. In a report of January 11, 2010, Dr. Diesing noted that Gardner's problems with headaches, nausea, balance, cognitive deficits, and neck pain were improving until the epidural injection on November 30, 2009.
On February 11, 2010, Gardner underwent an MRI examination which, according to Dr. Diesing's report dated April 16, showed that Gardner had a cerebrospinal fluid leak (CSF). The CSF was caused by a leak in the spinal cord's protective sac in which spinal fluid leaked out of a hole in the dura. Gardner underwent a “blood patch” to correct the CSF, as prescribed by Drs. Burkman and Diesing, and Gardner's symptoms improved thereafter. In its award, the compensation court determined that “the evidence preponderates in a finding that the cause of the CSF was due to the epidural injection on November 30, 2009.”
Because of Gardner's complaints of cervical and low-back pain, he was referred to Dr. George Greene, a neurosurgeon, and Dr. Eric Phillips, an orthopedic surgeon. In a report dated May 21, 2009, Dr. Phillips stated that Gardner was not a surgical candidate and suggested Gardner continue pain management with Dr. Burkman. In an October 8 report, Dr. Greene likewise did not believe that...
To continue reading
Request your trial
-
Gardner v. Law
...Plaintiff obtained an award of workers' compensation benefits which was upheld on appeal. See Gardner v. International Paper Destr. & Recycl., 865 N.W.2d 371 (Neb. 2015). At some point, however, Plaintiff became unhappy with the representation. Gardner filed a motion in the workers' compens......
-
Frans v. Waldinger Corp.
...to be given medical evidence, even when the health care professionals do not give live testimony. Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015). In its May 2019 award, the compensation court first considered Sattar's opinion that Frans' "problems do ap......
-
Parks v. Hy-Vee, Inc.
...an issue litigated and decided in one stage of a case should not be relitigated at a later stage. Gardner v. International Paper Destr. & Recycl. , 291 Neb. 415, 865 N.W.2d 371 (2015). The compensation court concluded this doctrine precluded it from relying on the opinions of Davis and Mass......
-
McNish v. Menard, Inc.
...refer to the degree or extent of the diminished employability or loss of earning capacity. Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015). Temporary disability is the period during which the employee is submitting to treatment, is convalescing, is suffe......