Green v. DRIVERS MANAGEMENT, INC.

• Decision Date: 26 June 2001
• Docket Number: No. A-00-1156.,A-00-1156.
• Citation: 10 Neb. App. 299,634 N.W.2d 22
• Parties: Stanley GREEN, Appellee, v. DRIVERS MANAGEMENT, INC., Appellant.
• Court: Nebraska Court of Appeals

634 N.W.2d 22

10 Neb. App. 299

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

No. A-00-1156.

Court of Appeals of Nebraska.

June 26, 2001.

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

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

IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

A trial judge of the Nebraska Workers' Compensation Court awarded Stanley Green, a truckdriver, compensation for a back injury he sustained while tightening down cargo onto a flatbed tractor-trailer. Green's award included payments for temporary total disability and permanent loss of earning capacity, and included the opportunity to receive vocational rehabilitation services. His employer, Drivers Management, Inc. (DMI), was also ordered to pay various medical bills. A review panel of the Workers' Compensation Court affirmed the award and assessed attorney fees against DMI, which now appeals.

FACTUAL AND PROCEDURAL BACKGROUND

Green began working for DMI as a truckdriver in 1994. He worked full time, making deliveries mainly along the east coast, earning approximately $1,000 per week. While making a delivery in Ohio on June 9, 1997, Green was tying down a load of steel bars onto the bed of his tractor-trailer when he "lift[ed] up on the strap ratchet" and "felt a stabbing pain between [his] shoulder blades." He then reported the injury to DMI, who routed him back to New York to see a doctor. During the drive back to New York, Green felt pain in his lower back and numbness in his legs. The next day, Green stopped working for DMI.

Green sought treatment from several physicians in New York following his injury. Dr. Joy Dolorico, Green's first doctor, prescribed muscle relaxants and painkillers. Dr. Dolorico eventually referred Green to several other doctors who prescribed physical therapy, epidurals, pain medication, and antiseizure drugs. DMI asked Dr. Anthony Nastasi to examine Green in October 1997. Dr. Nastasi concluded that he "could find no basis upon which to indicate the [sic] permanent impairment to [Green's] cervical, dorsal or lumbar spines has taken place." According to physical therapy progress reports, Green's condition "plateaued" as of May 20, 1998, but he continued to complain of significant back pain and numbness in his legs.

Green performed a functional capacity assessment on August 17, 1998. The assessment concluded that Green was "capable of working in the heavy work category" based on his performance in lifting, pulling, 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, and the other September 2, 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 with whom Green had been treating 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 because, according to Green, the pain increased in his legs and back, and his leg numbness prevented him from safely driving a truck. After an office visit on November 16, Dr. Criscitiello advised Green to stop working and stated that "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]." During Green's next visit on December 15, Dr. Criscitiello reported that Green was temporarily totally disabled.

Dr. William Stewart examined Green on January 11, 1999, and concluded that Green had not suffered any impairment as a result of the June 1997 accident. On February 9, Dr. Myra Shayevitz examined Green to determine whether Green was eligible for New York disability benefits. The State of New York denied Green disability benefits, but Dr. Shayevitz agreed with Dr. Criscitiello that Green needed further diagnostic tests "to better delineate this problem," and expressed reservation about Green's ability to stand, walk, or climb stairs. Green continued to attend physical therapy and take pain medication throughout 1999. An electrodiagnostic test performed in May 1999 pursuant to Dr. Criscitiello's persistent recommendations indicated nerve root irritation in Green's lower back and carpal tunnel syndrome in his right wrist.

Green petitioned for workers' compensation benefits on March 8, 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 to his employment history, the extent of his back injury, and his loss of earning capacity. At the time of trial, Green was 40 years old, was married, had two teenage daughters, lived with his family in Mexico, New York, had a high school education, had taken a 1,000 hour carpentry course during high school, and held a "CDL." 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 has had "maybe one day" without pain since the June 1997 accident. Prior to his work at DMI, Green had been a communications operator in the U.S. Army for 12 years and had been a truckdriver for Snyder National Carrier for 1½ years. Green testified that there were few jobs in the civilian world requiring the training Green had received in the military. Since he stopped working for DMI in November 1998 (the second and final time he quit at DMI), Green had applied for jobs at Wal-Mart, McDonald's, and a staffing company, but had not received any offers. By subcontracting, he had done some private construction work renovating apartment complexes, earning between $400 and $450 per week, and had plans to start his own home improvement business remodeling and reroofing homes. As of the time of trial, however, he did not have any construction work lined up. He anticipated construction jobs of putting on a steel roof and installing a large bathtub. He stated that he is proficient with many power tools.

The trial judge awarded Green temporary total disability, permanent partial disability, and the opportunity to participate in vocational rehabilitation training. In addition, the trial judge ordered DMI to pay Eckerd Drugs, $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." Other than the aforementioned bills, there is no evidence of any other medical bills which DMI has not paid.

The temporary total disability award of $427 per week, the maximum weekly income benefit available under Neb.Rev. Stat. § 48-121.01 (Reissue 1998), for 77% weeks covered two different time periods. The first time period spanned June 10, 1997, 1 day after Green injured his back, through September 14, 1998, the day before Green returned to work after Dr. Dolorico had advised him to return to work. DMI does not contest that Green was temporarily totally disabled during this time period and has paid all medical expenses through this period of disability. The second time period covered by the temporary total disability award, which DMI does challenge in this appeal, spanned November 19, 1998, after Dr. Criscitiello had advised Green to quit work, through February 9, 1999, when Dr. Shayevitz examined Green to determine his eligibility for New York State disability benefits. The trial court found that Green reached maximum medical improvement on February 9 because the "totality of the evidence demonstrates his medical condition had plateaued."

None of Green's physicians assigned him a permanent impairment rating or gave Green permanent physical restrictions. Nevertheless, 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, and therefore awarded Green $329.54 per week for 2221/7 weeks. The trial court quoted the portion of Dr. Shayevitz' report relied upon as follows:

"[Green] sits, he has to change his position. I do not believe he can do extensive standing, walking, or stair climbing. He could, perhaps, carry something very light and not frequently. I think that if he started handling small objects rapidly or repetitively, he would probably aggravate whatever process appears to be in the neck."

Additionally, the 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...