Money v. Flowers

• Decision Date: 02 May 2008
• Docket Number: No. S-07-681.,S-07-681.
• Citation: 275 Neb. 602,748 N.W.2d 49
• Parties: Christine M. MONEY, appellee, v. Tyrrell FLOWERS and Continental Western Group, appellants.
• Court: Nebraska Supreme Court

748 N.W.2d 49

275 Neb. 602

Christine M. MONEY, appellee, v. Tyrrell FLOWERS and Continental Western Group, appellants.

No. S-07-681.

Supreme Court of Nebraska.

May 2, 2008.

Dallas D. Jones and Amanda A. Dutton, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellants.

Jeffry D. Patterson, of Bartle & Geier Law Firm, Lincoln, for appellee.

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

CONNOLLY, J.

The appellee, Christine M. Money, suffered an injury while working for Tyrrell Flowers in Lincoln, Nebraska. Afterward, she moved 75 miles away to Table Rock, Nebraska. This appeal presents two issues. First, in determining Money's loss of earning power, did the trial judge err by excluding Lincoln and finding that the relevant labor market was the Table Rock community? Second, did the trial judge err in finding that Money was totally and permanently disabled as an odd-lot worker? We conclude that the trial judge correctly decided both issues.

I. EMPLOYER'S CONTENTIONS

Tyrrell Flowers and Continental Western Group (collectively Tyrrell) contend a court must consider two labor markets when a worker voluntarily moves from a large labor market to a small labor market after sustaining a compensable injury. That is, it contends the court must assess a worker's loss of earning power in relation to both the labor market where the worker was injured and the labor market to which the worker moved in good faith. Otherwise, Tyrrell argues that the worker will be able to manipulate his or her loss of earning power by moving to an area with fewer job opportunities. It further argues that the review panel erred in affirming the trial judge's finding in a subsequent proceeding that Money was an odd-lot worker in both the Lincoln and the Table Rock labor markets. It argues that Money failed to present any evidence of her ability to obtain employment in the Lincoln labor market.

II. BACKGROUND

1. MONEY'S INJURIES AND PAIN AFTER SURGERY

Tyrrell Flowers employed Money to work in the greenhouse and make deliveries for $8 an hour. In May 2000, she tripped on a small ledge and fell. She suffered injuries to her left chest wall, left shoulder, and neck. After the accident, Money developed headaches and primarily left-sided neck, shoulder, and arm pain. Testing later showed she had a herniated disk in her neck at the C5-6 level. In June 2001, after conservative treatment failed, a neurosurgeon recommended spinal surgery. He explained, however, that surgery could produce less than complete relief and that spinal fusion was "not so great for primary neck pain." Her surgery was postponed while Money attempted to quit smoking.

Sometime later in 2001, Money and her husband moved from Lincoln to Table Rock to live in a friend's house while the friend was absent. For the use of the house, they were obligated to take care of the property and pay the taxes and utilities. Table Rock is about 75 miles southeast of Lincoln. Money was living in Table Rock in April 2002, when she underwent surgery for a cervical diskectomy and fusion at the C5-6 level.

After the surgery, Money initially improved, but her headaches and her neck and shoulder pain returned. After more testing, the neurosurgeon concluded that she did not need further surgery and referred her to a pain clinic. The record shows she had trigger-point injections and epidural steroid injections, which provided some relief.

When Money reached her maximum medical improvement in January 2003, Dr. David S. Diamant evaluated her permanent functional impairment. Because Money continued to have significant complaints of pain and functional impairment despite conservative treatments and surgical intervention, Diamant concluded she had a 28-percent whole-body impairment rating. A physical therapist determined Money could perform work with a light-medium physical demand classification. But he concluded that the test was invalid because he believed that Money's efforts had failed several validity factors. Money, however, testified that she was unable to complete the physical tests in 1 day because of pain. After reviewing these test results, Diamant concluded that Money could at least work at the light-duty physical demand level.

In June 2003, a vocational rehabilitation counselor, Patricia G. Conway, prepared a loss of earning capacity analysis. Conway concluded that Money could not perform her preinjury jobs of nursing assistant or plant-care worker. She concluded, however, that Money qualified for unskilled and low-level skilled work activity and could return to full-time employment earning wages between $6.50 and $8.50 per hour. She determined that Money had a 25-percent loss of earning capacity under the light-medium physical demand restriction and a 32-percent loss of earning capacity under the light physical demand restriction.

Conway also prepared Money's vocational rehabilitation plan. For a time, Money lived in Missouri with a friend after her husband was incarcerated and the owner of the rent-free house died. But she returned to the area and lived with another friend to participate in her rehabilitation plan. The plan consisted solely of job placement activities within 15 to 40 miles of Money's residence. The plan's goal was employment paying $7.50 to $8.50 per hour. The plan began on August 21, 2003, and ended on November 17.

Conway provided Money with a resume, cover letters, and job leads. Conway stated in a report that the geographic area had a reasonable offering of low-skilled to semiskilled positions that fit Money's physical restrictions. Money's job search got off to a slow start after she strained her neck while trying to avoid a vehicular accident. Afterward, she reported to Conway that it caused her considerable pain to drive any distance. But by October 2003, Conway reported that Money had been diligent and aggressive about participating in her job search. In 2004, Money returned to Table Rock to live with her husband in a house his parents purchased for them; his parents also helped with utilities.

Money continued to have pain. Yet, another physician did not find any abnormalities in her neck that surgical intervention could help. He concluded that Money's residual pain originated in her soft tissues: muscles, tendons, and ligaments. In July 2004, a sewing factory hired Money to sew lawnmower bags, but it soon terminated her employment for absences related to her neck pain.

In March 2005, after reevaluating her, Diamant wrote that it was difficult to say whether Money could do light-duty work. Money still complained of constant low-level, and at times severe, pain and headaches. She had also reported intolerance to sitting more than 90 minutes. Yet, Diamant believed she could at least work in a sedentary-light physical demand capacity if she were to pursue such employment. The same month, her regular physician reported treating Money every 2 to 3 months during the preceding year for myofascial syndrome, or pain originating in the muscles. He stated that Money would likely need to rely on trigger-point injections in the future.

At trial in April 2005, Money testified that since her maximum medical improvement date, she had continued to have muscle spasms in her neck and shoulders, causing her pain and headaches. She stated that doing simple chores around the house could cause her pain but that if her activities were very limited, she might have only 4 to 5 bad days in a 2-month period. At times, she experiences blurred vision, nausea, trouble walking, and elevated blood pressure.

2. TRIAL JUDGE'S FINDINGS IN FIRST ORDER

In its order, the trial judge stated that it was Tyrrell's position the Money should be required to move back to Lincoln because she would have greater job opportunities. The judge found, however, that Money had not moved to Table Rock in bad faith or to reduce her employment opportunities. He concluded that her move for low-cost housing was, and continued to be, motivated by economic necessity. The judge further found that requiring Money to drive to Lincoln for a job that paid $6 to $8 per hour was not economically feasible. Accordingly, he concluded that the relevant labor market was in and around Table Rock.

Regarding Money's impairment, the trial judge found that the evidence showed Money had made a reasonable and good faith effort to find employment but had failed. He concluded that this evidence rebutted Conway's opinion regarding Money's loss of earning capacity. He further concluded that Money was "totally disabled and entitled to permanent total loss of earning power" because employers would not hire her.

3. REVIEW PANEL REVERSES AND REMANDS FOR CONSIDERATION OF BOTH LABOR MARKETS

Tyrrell appealed. The three-judge review panel agreed with Tyrrell that the trial judge erred in limiting Money's labor market to Table Rock even if she moved there in good faith. It reasoned that limiting the labor market to a claimant's new community would open the door to unscrupulous behavior. It remanded with instructions for the trial judge to reassess Money's permanent loss of earning power. It stated the trial judge should consider any evidence regarding plaintiff's labor market both where she was injured and the locale to which she relocated afterward.

On remand, the trial judge stated that its "reassessment of [Money's] loss of earning power includes the labor market in and around Table Rock, Nebraska, and the labor market at the time of her injury." He again found Money totally disabled under the odd-lot doctrine in both labor markets. He found that Money had a formal education through the eighth grade and had lost factory jobs because she was not "quick enough." He noted that she had lost a waitress job because she could not remember lists or operate a cash register without mistakes. He further noted that she could not keep a checking account because the math was too difficult for her....