Rodriguez v. Hirschbach Motor Lines

• Decision Date: 09 December 2005
• Docket Number: No. S-05-141.,S-05-141.
• Citation: 707 N.W.2d 232,270 Neb. 757
• Parties: Santana RODRIGUEZ, appellant, v. HIRSCHBACH MOTOR LINES and Dakota Truck Underwriters, appellees.
• Court: Nebraska Supreme Court

Page 232

707 N.W.2d 232

270 Neb. 757

Santana RODRIGUEZ, appellant, v. HIRSCHBACH MOTOR LINES and Dakota Truck Underwriters, appellees.

No. S-05-141.

Supreme Court of Nebraska.

December 9, 2005.

1. Workers' Compensation: Appeal and Error.

Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 2004), 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.

2. Workers' Compensation.

Generally, whether a workers' compensation claimant has reached maximum medical improvement is a question of fact.

3. Workers' Compensation.

Whether medical treatment is reasonable or necessary to treat a workers' compensation claimant's compensable injury is a question of fact.

4. Workers' Compensation: Appeal and Error.

Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

5. Workers' Compensation: Words and Phrases.

Under Neb.Rev.Stat. § 48-121 (Reissue 2004), a workers' compensation claimant may receive permanent or temporary workers' compensation benefits for either partial or total disability. "Temporary" and "permanent" refer to the duration of disability, while "total" and "partial" refer to the degree or extent of the diminished employability or loss of earning capacity.

6. Workers' Compensation: Words and Phrases.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit.

7. Workers' Compensation.

Compensation for temporary disability ceases as soon as the extent of the claimant's permanent disability is ascertained.

8. Workers' Compensation.

Temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

9. Workers' Compensation.

Once a worker has reached maximum medical improvement from a disabling injury and the worker's permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

10. Workers' Compensation.

When an injured employee has reached maximum medical improvement, any remaining disability is, as a matter of law, permanent.

11. Workers' Compensation.

A workers' compensation claimant should not receive temporary disability benefits upon reaching maximum medical improvement.

12. Workers' Compensation: Intent.

It is the intent of the Nebraska Workers' Compensation Act that the employer pay permanent disability benefits as determined, if any, as soon as possible after maximum medical improvement has been reached.

13. Workers' Compensation: Time.

The date of maximum medical improvement for purposes of ending a workers' compensation claimant's temporary disability is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident. A claimant has not reached maximum medical improvement until all the injuries resulting from an accident have reached maximum medical healing.

Tony Brock, of Shasteen, Brock & Scholz, P.C., Lincoln, for appellant.

Brenda S. Spilker and Christopher J. Walker, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellees.

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

GERRARD, J.

The claimant in this workers' compensation action, Santana Rodriguez, suffered injuries to his neck, shoulder, knees, and back, in addition to severe depression, as a result of a work-related accident. Rodriguez was found to have reached maximum medical improvement with respect to all of those injuries except his knees. The primary issue presented in this case is whether the Workers' Compensation Court erred in concluding that Rodriguez had reached maximum medical improvement with respect to some but not all of his injuries, and denying permanent disability benefits for those injuries, instead of waiting until all his injuries could be considered together in assessing Rodriguez' loss of earning power.

BACKGROUND

Rodriguez was employed by the defendant Hirschbach Motor Lines (Hirschbach) as a truckdriver. On December 28, 2001, Rodriguez had a load of beer kegs on pallets, which were being unloaded by forklift. The kegs fell on Rodriguez, and he was injured. Rodriguez eventually filed a claim for workers' compensation benefits.

On January 23, 2002, Rodriguez was treated for complaints of left shoulder, neck, and bilateral knee pain. Rodriguez continued to receive medical treatment and, on August 29, underwent surgery on his left shoulder for rotator cuff tears. Rodriguez' physician opined that Rodriguez' knees were injured in the accident, but Hirschbach's expert opined that Rodriguez had a degenerative joint disease and that the accident was not a significant and contributing cause of his condition. Hirschbach denied surgery for Rodriguez' knees. With respect to his neck and back pain, Rodriguez was found to have herniated disks on his cervical and lumbar spine, but surgery was not indicated because of Rodriguez' obesity. Rodriguez was also examined for depression in October and found to be significantly depressed, secondary to his work-related injuries. In July 2003, Rodriguez' doctors concluded he had reached "maximum medical improvement" for his shoulder, neck, and back injuries.

The case came on for hearing before the single judge on July 28, 2003. The parties stipulated that Rodriguez' accident arose out of and in the course of his employment and that Rodriguez was injured, but disputed the nature and extent of the injuries. The single judge concluded that Rodriguez' knee injuries and depression were the result of his work-related accident. The single judge found that Rodriguez had reached maximum medical improvement with respect to his neck, back, shoulder, and psychological injuries, but that he had not reached maximum medical improvement with respect to his bilateral knee injuries. Hirschbach was ordered to pay for Rodriguez' knee surgeries and to pay medical benefits with respect to his other injuries. The single judge determined that Rodriguez had suffered no permanent disability as a result of his neck, back, shoulder, and psychological injuries. Therefore, the single judge entered an award maintaining temporary total disability benefits for the injury to Rodriguez' knees, but denying permanent disability benefits.

Rodriguez also asked the single judge to order Hirschbach to pay for gastric bypass surgery to help achieve the weight loss necessary to permit surgery to his cervical and lumbar spine. The single judge determined that the record did not establish that the surgery was reasonable and medically necessary at that time and denied Rodriguez' request.

Rodriguez appealed to the review panel of the Workers' Compensation Court, which affirmed the single judge's award. Rodriguez argued that pursuant to our decision in Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003), when a worker sustains a scheduled member injury and a whole body injury in the same accident, the Workers' Compensation Court may consider the impact of both injuries in assessing the worker's loss of earning capacity. See, also, Madlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005) (when whole body injury results from scheduled member injury, member injury should be considered in assessment of whole body impairment). Rodriguez argued that it was premature for the single judge to deny recovery for a whole body injury before Rodriguez reached maximum medical improvement with respect to his knee injuries. However, the review panel determined that Zavala was permissive, and while the injuries could be considered together, it was not required. The review panel also affirmed the denial of Rodriguez' request for gastric bypass surgery. Rodriguez timely appealed, and we granted his petition to bypass the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Rodriguez assigns that the Workers' Compensation Court erred in (1) holding that it was required to determine his loss of earning power with respect to his neck, back, shoulder, and psychological injuries because of physicians' opinions that he had reached maximum medical improvement with respect to those injuries; (2) finding that he had reached maximum medical improvement and his temporary total disability had ceased; (3) failing to award permanent total disability benefits; and (4) refusing to find that his proposed gastric bypass surgery was necessary and reasonable to alleviate his neck and back pain.

STANDARD OF REVIEW

Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 2004), 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. Vega v. Iowa Beef Processors, 270 Neb. 255, 699 N.W.2d 407 (2005).

Generally, whether a workers' compensation claimant has reached maximum medical improvement is a question of fact. Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996). Whether medical treatment is reasonable or necessary to treat a workers' compensation claimant's compensable injury is a question of fact. See, Zessin v. Shanahan Mechanical & Elec., 251 Neb. 651 558 N.W.2d 564 (1997); Kerkman v. Weidner Williams Roofing Co., 250 Neb. 70, 547...