Green v. Drivers Management, Inc.

• Citation: 639 N.W.2d 94,263 Neb. 197
• Decision Date: 15 February 2002
• Docket Number: No. S-00-1156.,S-00-1156.
• Parties: Stanley GREEN, Appellee, v. DRIVERS MANAGEMENT, INC., Appellant.
• Court: Supreme Court of Nebraska

639 N.W.2d 94

263 Neb. 197

Stanley GREEN, Appellee, v. DRIVERS MANAGEMENT, INC., Appellant.

No. S-00-1156.

Supreme Court of Nebraska.

February 15, 2002.

Raymond P. Atwood, Jr., and Ryan C. Holsten, of Atwood & Associates Law Firm, P.C., L.L.O., Lincoln, for appellant.

Ronald J. Palagi and Steven H. Howard, of Law Offices of Ronald J. Palagi, P.C., Omaha, for appellee.

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

McCORMACK, J.

NATURE OF CASE

Stanley Green injured his back in the course of his employment, and the trial judge of the Nebraska Workers' Compensation Court awarded him payments for temporary total disability and permanent partial disability. Green was also awarded the opportunity to receive vocational rehabilitation services. Green's employer, Drivers Management, Inc. (DMI), was ordered to pay various medical bills. A review panel of the compensation court affirmed the award and assessed attorney fees against DMI. DMI appealed to the Nebraska Court of Appeals, which held that the trial judge erred in awarding Green permanent partial disability benefits and in ordering DMI to pay for certain medical bills which Green had not offered into evidence. Because Green was not entitled to compensation for loss of earning capacity or for attorney fees, the Court of Appeals held that the total award should be reduced. Both parties filed petitions for further review to this court, and both were granted. We affirm in part, and in part reverse.

BACKGROUND

The facts of this case have been set out in detail in Green v. Drivers Mgmt., Inc., 10 Neb.App. 299, 634 N.W.2d 22 (2001).

The parties stipulated that Green sustained a work-related accident and injury arising out of and in the course of his employment on June 9, 1997, and that his average weekly wage was $988.72.

Green sought treatment in New York following his injury. Dr. Joy Dolorico, Green's first doctor, prescribed muscle relaxants and painkillers. She referred Green to several other doctors who prescribed physical therapy, epidurals, pain medication, and antiseizure drugs.

Green performed a functional capacity assessment in August 1998. The assessment concluded that Green was "capable of working in the heavy work category" based on his performance on strength and agility tests. On September 2, DMI stopped paying compensation benefits and told Green to report back to work within 30 days. Exhibit 33 contains a copy of two notes by Dr. Dolorico, one of which is dated August 28, 1998, and the other September 2, 1998, both of which state that Green "can go back to work," with the August 28 note specifically stating that Green "can go back to work at a level of maximum medical improvement."

Green consulted Dr. Arnold Criscitiello, an orthopedic surgeon who had been treating Green since June 1998, about the functional capacity evaluation and Dr. Dolorico's release. Dr. Criscitiello advised Green against returning to work until further diagnostic studies could be done. However, Green returned to work for DMI on September 15, 1998. He worked for approximately 2 months driving a truck. On November 17, Green quit work for a second time, stating that the pain had increased in his legs and back and that the numbness in his legs prevented him from safely driving a truck. After an office visit on November 16, Dr. Criscitiello advised Green to stop working and stated, "I don't think that [Green] should be back to full duty work but these are issues that have been overridden [by the functional capacity assessment and independent medical examiners]."

On February 9, 1999, Dr. Myra Shayevitz examined Green to determine whether he was eligible for New York's disability benefits. The State of New York denied Green disability benefits, but Dr. Shayevitz believed that Green needed further diagnostic tests and expressed reservations about his ability to stand, walk, or climb stairs. Green attended physical therapy and took pain medication throughout 1999. An electrodiagnostic test was performed in May 1999, pursuant to Dr. Criscitiello's persistent recommendations. It indicated nerve root irritation in Green's lower back and carpal tunnel syndrome in his right wrist.

Green petitioned for workers' compensation benefits in March 1999. At trial on Green's petition, the parties stipulated that on June 9, 1997, Green "sustained an accident that arose out of and in the course of his employment with [DMI]," that Green's average weekly wage at the time of the accident was $988.72, and that DMI had already paid $14,986.82 of Green's medical bills and had paid Green $27,328 for 64 weeks of temporary total disability compensation. A summary of benefits paid shows that DMI started paying temporary total disability on June 11, 1997, and stopped these payments as of September 1, 1998.

Green testified that at the time of trial, he was 40 years old, was married, had two teenage daughters, and lived with his family in Mexico, New York. Green had a high school education, had taken a 1,000-hour carpentry course during high school, and was "certified" in carpentry. According to Green, his pain and numbness extended from his neck to his legs, feet, arms, and hands. He said he could not drive a truck because he was unable to sit for more than 45 minutes without pain and could not feel his feet depressing the brake pedal because of the numbness in his legs. He stated that he "had maybe one day" without pain since his accident in June 1997.

The trial judge awarded Green temporary total disability and permanent partial disability benefits and the opportunity to participate in vocational rehabilitation training. In addition, the trial judge ordered DMI to pay Eckerd Drug Company $1,462.55; Empi, Inc., $466.55; and Magnetic Diagnostic Resources $291.76, and further required that DMI reimburse Green and his health insurance carrier "for payments made related to the above described accident as the interest of each may appear." The temporary total disability award was $427 per week for 776/7 weeks and covered two different time periods. The permanent partial disability award amounted to $329.54 per week for 2221/7 weeks due to what the trial judge determined to be a 50-percent loss of earning capacity.

None of Green's physicians assigned him a permanent impairment rating or gave him permanent physical restrictions. However, the trial judge relied upon Dr. Shayevitz' report, as well as Green's testimony, to find that Green suffered a 50-percent loss of earning capacity as a result of the injury. Additionally, the trial judge pointed out that Green's ability to lift in the "heavy work" classification, according to the August 1998 functional capacity evaluation, was trumped by his testimony that he tried his hardest during the evaluation, that he was in bed 2 to 3 days after the evaluation as a result of his exertion during the test, and that he could physically lift the weight in the evaluation but could not do so continually.

On April 3, 2000, through an order nunc pro tunc, the trial judge amended its award to include the following text: "[Green] will require additional medical care and treatment for which [DMI] is liable." On April 6, DMI appealed the award to a review panel of the compensation court, which affirmed the award in all respects.

DMI then appealed to the Court of Appeals, where it asserted that the trial judge exceeded her powers and that there was insufficient evidence to support the award. Specifically, DMI alleged that the trial judge erred in (1) finding that Green had suffered a 50 percent loss of earning capacity without evidence of impairment ratings or physical restrictions causally related to Green's injury, (2) finding that Green was temporarily totally disabled from November 19, 1998, through February 9, 1999, (3) ordering DMI to pay medical bills that were not offered into evidence, and (4) awarding Green vocational rehabilitation services.

The Court of Appeals held, in pertinent part, that it was clear error to assign Green a 50 percent permanent partial disability because the record in this case does not contain any evidence that Green suffered a permanent impairment to his body as a whole. Green v. Drivers Mgmt., Inc., 10 Neb.App. 299, 634 N.W.2d 22 (2001). As to vocational rehabilitation, the Court of Appeals concluded that since there is no longer a requirement in the text of Neb. Rev.Stat. § 48-162.01 (Reissue 1998) that an injured worker have a permanent disability to be eligible for vocational rehabilitation benefits, the reversal of Green's permanent partial disability benefits award does not affect the award of vocational rehabilitation. Green v. Drivers Mgmt., Inc., supra.

The Court of Appeals then vacated the portion of the trial judge's order requiring DMI to reimburse Green and his health insurance carrier for payments related to his June 1997 injury because the lack of evidence and vagueness of the order would require one to speculate about what is required. Id.

Both parties then filed petitions for further review with this court, and both petitions were granted.

ASSIGNMENTS OF ERROR

DMI's petition for further review asserts that the Court of Appeals erred in (1) holding that an injured worker is entitled to vocational rehabilitation under § 48-162.01 absent a finding of permanent impairment and (2) failing to vacate the clearly erroneous factual finding of the trial judge that Green was entitled to an evaluation for vocational rehabilitation services under § 48-162.01 absent a finding of permanent impairment.

Green's petition for further review asserts, rephrased, that the Court of Appeals erred in (1) overruling the trial judge's determination that he is permanently partially disabled as a result of a work-related accident and has experienced a 50 percent loss of earning capacity and (2) overruling the trial judge's award for future medical benefits issued upon his motion for order nunc pro tunc to...