Lounnaphanh v. Monfort, Inc.

• Decision Date: 04 August 1998
• Docket Number: No. A-97-1070,A-97-1070
• Citation: 583 N.W.2d 783,7 Neb.App. 452
• Parties: Bounmy LOUNNAPHANH, Appellee, v. MONFORT, INC., Appellant.
• Court: Nebraska Court of Appeals

Page 783

583 N.W.2d 783

7 Neb.App. 452

Bounmy LOUNNAPHANH, Appellee, v. MONFORT, INC., Appellant.

No. A-97-1070.

Court of Appeals of Nebraska.

Aug. 4, 1998.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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 judgment, order, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. Workers' Compensation: Judgments: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

3. Workers' Compensation: Appeal and Error. Findings of fact made by a Workers' Compensation Court after review have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous.

4. Workers' Compensation: Proof: Expert Witnesses. In a workers' compensation case, the worker has the burden to prove the causal relationship between the injury, the employment, and the disability and unless the injury is objective and plainly apparent, the worker must present legally competent medical testimony regarding that causal relationship.

5. Workers' Compensation: Records: Proof. In a workers' compensation case, the medical history contained in medical records does not establish causation.

6. Workers' Compensation: Records: Proof. In a workers' compensation case, a note in a doctor's record, alone, can, if otherwise sufficient, support a finding of causation.

7. Workers' Compensation: Records: Proof. In a workers' compensation case, the meaning of the words in a medical record can be interpreted in their larger context and not read literally.

8. Workers' Compensation: Witnesses. The Workers' Compensation Court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given their testimony.

9. Workers' Compensation: Expert Witnesses. The Workers' Compensation Court may determine which, if any, of the expert witnesses to believe.

10. Workers' Compensation: Expert Witnesses: Appeal and Error. When the record in a workers' compensation case presents conflicting expert testimony, the appellate court will not substitute its judgment for that of the compensation court.

Richard R. Endacott, of Knudsen, Berkheimer, Richardson, Endacott & Routh, Lincoln, for appellant.

Rod Rehm, Lincoln, for appellee.

HANNON, IRWIN, and INBODY, JJ.

HANNON, Judge.

In this workers' compensation case, the trial court awarded the plaintiff, Bounmy Lounnaphanh, permanent total disability for a back injury. The defendant, Monfort, Inc., appealed to the Worker's Compensation Court review panel and then to this court We note the trial judge mentioned certain parts of the medical record in her analysis of the evidence but concluded that "[b]ased on the totality of the medical evidence presented, the Court finds the plaintiff has sustained" his burden on causation. The review panel concluded much the same thing. We do not assume the trial judge or the review panel based its opinion on just the items discussed in the opinion. The medical evidence is too voluminous to summarize, let alone to discuss as to the significance of all the evidence relevant to the issue of causation.

alleging that the only medical evidence offered by Lounnaphanh to prove that his condition was caused by a work-related accident while employed by Monfort, that is, the records of several doctors that treated him, is insufficient as a matter of law to support the trial judge's findings. Monfort also alleges that the trial court erred in finding Lounnaphanh was totally and permanently disabled, because the evidence shows he could be competitively employed if he took English as a Second Language (ESL) courses. We conclude that the medical records contain opinions of the treating doctors sufficient to support the trial judge's findings on causation and that because there is conflicting[7 Neb.App. 454] evidence on whether Lounnaphanh is employable in view of his constant pain, his inability to speak English, and his inability to learn English, we cannot say the trial judge was clearly wrong. We therefore affirm.

SUMMARY OF EVIDENCE

At trial on November 6, 1996, Lounnaphanh was 48. Lounnaphanh was born in Laos, has only a fifth grade education, and does not speak English. Not only did Lounnaphanh use an interpreter to testify in court, he needed an interpreter to converse with the doctors who treated him.

Lounnaphanh testified that he was a soldier for several years and a refugee in Thailand for 10 years and that he then came to the United States. Lounnaphanh went to work for Monfort in Grand Island, Nebraska. As a meat trimmer, his job was to cut fat from the area of the heart and put it in a box, and when 50 or 60 pounds of fat accumulated, he would throw the fat away. In November 1992, Lounnaphanh was emptying a box when he felt a sharp pain. Through a demonstration and with the aid of the interpreter, Lounnaphanh related that he would hold the box of fat with both hands in front of himself. He would lift up the box, twist his body to one side, and throw the contents out. While in this process on November 16, Lounnaphanh felt a sharp pain while twisting his body to one side, and his back then started hurting. Lounnaphanh told his supervisor and was sent to the infirmary, where a nurse put a heating pad on his back. Lounnaphanh testified he had pain in his back and his left leg but that he did not have any such pain before he was injured. On February 14, 1994, Lounnaphanh's back was operated on, but the surgery did not make his back feel better. Lounnaphanh tried to return to work in the summer of 1994, but was able to work for only 2 or 3 weeks. Lounnaphanh has not worked since July 1994, when he obtained a note from Dr. Joseph O'Hara stating that he should not work permanently.

Lounnaphanh continues to see Dr. Gordon Hrnicek for pain but is given only a drug prescription. Lounnaphanh takes six or eight pills per day. He takes two pills before he goes to sleep and sleeps for 3 or 4 hours before the pain wakes him up. Lounnaphanh then takes more pills. Lounnaphanh testified he takes pain pills every 3 or 4 hours during the day. Lounnaphanh stated the pills help his pain "a little" but that his back still hurts. Lounnaphanh must take food before he takes the pills or his stomach hurts. The pills make Lounnaphanh drowsy, and he then cannot drive. Lounnaphanh is not able to help around the house or yard, but he has gone to the store with his wife and carried a grocery bag weighing 3 or 4 pounds. At the time of trial, Lounnaphanh was taking more medicine than he did in April 1995. Lounnaphanh can sit for only 10 to 15 minutes without pain. The pain is from his shoulder down his back to his calves. Lounnaphanh testified the pain used to be in only one leg and that he now feels pain in both legs, but that the left leg hurts the most. Lounnaphanh stated his whole leg feels After Lounnaphanh stopped working for Monfort, he tried to learn English. Lounnaphanh went to the doctor because he had pain while going to school, and the doctor excused him from attending school. Lounnaphanh testified he wants to learn English, but that he cannot because his back hurts when he sits. During cross-examination, Lounnaphanh demonstrated how far he could bend forward and how far he could twist his shoulders.

numb and tingly and that he has to take naps during the day because of the pain.

Medical Evidence on Causation.

The evidence contains a "Claimant's Report," dated December 19, 1992, reporting a work-related incident on November 16 and stating Lounnaphanh saw Hrnicek, his family physician, on November 23. Over the next few years, Lounnaphanh was sent to several medical specialists and physical therapists. On February 14, 1994, O'Hara performed a hemilaminectomy with disk excision on Lounnaphanh. The only medical evidence to establish that the November 16, 1992, accident caused Lounnaphanh's back condition is contained in the several medical records introduced at trial. We will summarize these records.

The court received Hrnicek's office notes, which show that on November 9, 1992, he saw Lounnaphanh for a cough. On November 23, 1992, handwritten notes state, "Acute L low back pain X 6 mos.... very tender S I jt.... Because of + TB e X ray e ... RTC 12/14. Records copied & to Monfort." Hrnicek's notes contain more than 100 entries concerning Lounnaphanh and his complaints. The last visit recorded occurred on July 16, 1996, when Lounnaphanh received more refills of pain medication. The record contains many complaints of pain and shows Hrnicek wrote Lounnaphanh many prescriptions for Darvocet and other pain relievers. These notes do not contain any opinion as to causation.

Hrnicek's files contain a letter dated December 3, 1992, to another doctor in regard to a positive test for tuberculosis. In that letter, Hrnicek states he can attest that Lounnaphanh has been quite healthy over the last 3 years, with negative chest X rays. At the end of the letter, Hrnicek states Lounnaphanh has "an acute low back strain which has started to cause some sciatic pain." In a letter to Lounnaphanh, Hrnicek told him his liver enzymes were mildly elevated and that Hrnicek hopes Lounnaphanh is successful in seeing one of the doctors about his back.

The record contains copies of three notes on prescription note paper from Hrnicek to an unknown addressee, presumably Monfort, concerning Lounnaphanh. One note, dated November 23, 1992, states, "Above may return to work 11/30/92. Dx: acute low back strain." Another such note, dated December 18, 1992, states, "Above may return to light duty 12/21/9...