Jordan v. Morrill County
| Decision Date | 17 December 1999 |
| Docket Number | No. S-99-030.,S-99-030. |
| Citation | 258 Neb. 380,603 N.W.2d 411 |
| Parties | Gregory J. JORDAN, appellant, v. MORRILL COUNTY and Employers Mutual Casualty Company, its workers' compensation insurance carrier, appellees. |
| Court | Nebraska Supreme Court |
Tylor J. Petitt, of The Van Steenberg Firm, Scottsbluff, for appellant.
Brenda S. Spilker and Timothy E. Clarke, of Baylor Evnen Curtiss Grimit & Witt, Lincoln, for appellees.
Gregory J. Jordan appeals from an order entered by a review panel of the Nebraska Workers' Compensation Court which reversed the trial judge's determination that Jordan had sustained a repetitive trauma injury to his right shoulder for which benefits were payable under the Nebraska Workers' Compensation Act.
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. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).
In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing. Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233 (1999).
An appellate court is required to make its own determinations as to questions of law in workers' compensation cases. Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57 (1998).
In a prior workers' compensation case heard before the Honorable Paul E. LeClair, Jordan received an award against Morrill County for injuries to his cervical spine as the result of an accident on January 19, 1995. Jordan also alleged at the trial before Judge LeClair that in February or March 1996, he injured his right shoulder in a "work hardening" program that was required due to his injuries suffered in the January 1995 accident. Judge LeClair denied benefits for this alleged injury, finding that Jordan had failed to prove that his right shoulder problems were causally related to his accident and injury of January 19.
In the workers' compensation case at issue herein, the trial judge noted that Jordan had had three cervical spine operations, the last of which was on February 28, 1996. After this surgery, Jordan participated in a work hardening program at Scottsbluff Physical Therapy Associates. On March 28, Jordan reported neck and upper back pain while lifting. A summary dated April 19, 1996, noted persistent right upper back and neck pain which had been manageable. During a functional capacity assessment, Jordan felt pain on both sides of his neck and in his right shoulder.
Jordan returned to work in May 1996, and on June 13, he had an initial evaluation by Dr. Scott Primack. The evaluation was for a permanent impairment rating as a result of the cervical spine injury of January 19, 1995. Primack's letter of June 13, 1996, did not indicate any problems with Jordan's right shoulder.
On November 21, 1996, Jordan was examined by Dr. Hans Coester for problems with his right shoulder. At that time, Jordan reported that the shoulder pain was worse with activity. Jordan was then referred to Dr. Garth Nelson, an orthopedic surgeon, who examined Jordan on January 6, 1997. Nelson diagnosed Jordan's right shoulder problem as posttraumatic impingement syndrome with partial rotator cuff tears. In a letter dated March 24, Nelson stated:
Jordan clearly has a right shoulder impingement syndrome with partial thickness rotator cuff tears. The mechanism of his industrial injury January 19, 1995 is consistent with this condition, although I understand that most of his complaints at the time of injury and the months following were in reference to his neck and his left shoulder. The right shoulder injury may have been masked by the greater intense cervical pain which resolved after healing after his third cervical operation in February, 1996.... I am unaware of any nonindustrial causes of his right shoulder impingement and rotator cuff partial tears.
When Primack was asked to diagnose the cause of Jordan's impingement syndrome, he noted that Jordan had reported pain in his right arm when Primack examined him on June 13, 1996. At the time of that evaluation, Primack felt that Jordan's right shoulder problem was residual to a recent surgery. He then saw Jordan on October 23, and at that time, Jordan complained of problems with his right arm due to the vibration he experienced while operating a road grader. In a letter dated July 29, 1997, Primack stated:
I do not feel that the patient's impingement syndrome is from his initial injury from 1/19/95. More than likely, it is from driving his road gra[d]er with his arms at 90 degrees. Therefore, given the initial mechanism of injury and Mr. Jordan's follow-up examinations, his right shoulder problem is not related to his initial injury from January of 1995.
Jordan's amended petition alleged that in June 1996, he sustained a personal injury arising out of and in the course of his employment with Morrill County and that he was entitled to workers' compensation benefits. He asserted that he sustained an injury to his right shoulder while operating a road grader and that his employer had notice and knowledge of the accident and injury on or about June 1996. Jordan alleged that although he was still working, he continued to be treated by physicians, would need more medical treatment, and would be off work in the future. Morrill County and its workers' compensation insurance carrier, Employers Mutual Casualty Company (Employers Mutual), admitted Jordan's employment, but denied that the disability which Jordan claimed was the result of an accident or occupational disease arising out of or in the course of his employment with Morrill County.
The trial judge found that Jordan had suffered an accident and injury to his right shoulder from constant repetitive trauma while operating a road grader during May 1996 and, in particular, on June 13, 1996. The trial judge also found that Jordan had missed no time from work although he needed surgery as recommended by Nelson and that Jordan was entitled to surgery for the right shoulder impingement syndrome and rotator cuff tears. The trial judge held that during the time Jordan was unable to work and was under a physician's care for treatment of his right shoulder, he was entitled to receive temporary disability benefits. Morrill County and Employers Mutual appealed, alleging error in the finding that Jordan suffered an injury to his right shoulder from constant repetitive trauma while operating a road grader. A review panel of the Workers' Compensation Court found that the trial judge's determination that Jordan had sustained a repetitive trauma injury was clearly wrong and in error as a matter of law for two reasons.
First, the review panel found that the evidence before the trial judge showed that Jordan was undergoing a functional capacity evaluation for an unrelated injury on June 13, 1996, and that Primack, the physician examining Jordan, did not note until July 29, 1997, that Jordan had mentioned his right shoulder problems at the time of the evaluation. The review panel believed that the definition of a repetitive trauma accident requires that the medical attention being sought is for the condition for which compensation is being claimed. The review panel concluded that since the evidence would suggest that Jordan did not seek medical attention for his claimed right shoulder injury until October 1996, the trial judge's finding of a June 13, 1996, accident was clearly wrong. Second, the review panel noted the trial judge's finding that Jordan had missed no time from work and therefore concluded that Jordan had not experienced an interruption or discontinuation of employment.
In light of its specific finding that an essential element of an accidental injury had not been satisfied, the review panel concluded that the trial judge's finding that Jordan had suffered a work-related accident and injury to his right shoulder was in error as a matter of law. Thus, the review panel ordered that the award entered June 10, 1998, be reversed and that the case be dismissed.
One of the judges on the review panel dissented, concluding that it made little practical or legal sense to require an injured worker to know the causation of his condition before seeking medical attention for that condition. The dissent opined that it was obvious that Primack was confused with respect to Jordan's condition and initially thought it was a residual effect of a previous and unrelated surgery.
Jordan timely appeals from the decision of the Workers' Compensation Court review panel.
Jordan assigns the following errors: (1) The review panel erred in reversing and dismissing the award entered by the trial judge on June 10, 1998; (2) the review panel erred in finding that the trial judge's determination that Jordan sustained a repetitive trauma injury on June 13, 1996, was clearly wrong and in error as a matter of law; (3) the review panel erred in ruling that the definition of a repetitive trauma accident requires that the medical attention being sought be for the condition for which the compensation is being claimed; and (4) the review panel erred in ruling that Jordan had not experienced an interruption or discontinuation of employment and thus had not met the "suddenly and violently" portion of the definition of an "accident."
We focus on whether the review panel erred in concluding that the trial judge's finding that...
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