Snowden v. Helget Gas Products, Inc.
| Decision Date | 12 September 2006 |
| Docket Number | No. A-05-1478.,A-05-1478. |
| Citation | 721 N.W.2d 362,15 Neb. App. 33 |
| Parties | Pamela SNOWDEN, widow of deceased employee Jeffrey Snowden, appellant, and Genevieve Snowden, dependent of deceased employee, appellee, v. HELGET GAS PRODUCTS, INC., appellee. |
| Court | Nebraska Court of Appeals |
W. Craig Howell, of Howell, Wilson & Derr, P.C., L.L.O., Omaha, and Jerold V. Fennell, Elm Grove, WI, for appellant.
Matthew J. Buckley and William D. Gilner, of Nolan, Olson, Hansen, Lautenbaugh & Buckley, L.L.P., Omaha, for appellee Helget Gas Products.
Pamela Snowden and Genevieve Snowden, the widow and dependent child of Jeffrey Snowden, respectively, brought a workers' compensation action claiming that Jeffrey was injured while working at Helget Gas Products, Inc. (Helget), on February 18, 2002, while lifting gas cylinders. Pamela and Genevieve alleged that as a consequence of the injury, Jeffrey committed suicide on March 13, 2004. Pamela and Genevieve sought temporary disability benefits, payment of medical and funeral expenses, and widow's and dependent's benefits. The trial judge of the Workers' Compensation Court entered an order of dismissal, finding that Jeffrey failed to report his injury to his employer as soon as practicable. Pamela appealed to the review panel of the Workers' Compensation Court, which affirmed the trial judge's decision. Pamela appeals, and we reverse, because after review of the undisputed facts, we find that a reasonable employer had notice or knowledge Jeffrey's injury was potentially compensable and that as a result, the employer should have investigated the matter which satisfies the notice requirement of Neb.Rev.Stat. § 48-133 (Reissue 2004). Additionally, because of the trial judge's failure to render a reasoned decision under Worker's Comp. Ct. R. of Proc. 11 (2006), we vacate the judge's finding that Jeffrey's death by suicide was willful negligence.
Prior to 2002, Jeffrey suffered from various medical difficulties resulting from a car accident occurring in the late 1970's. Jeffrey began working at Helget in 2001. During the interview process, Jeffrey informed Helget that he had previously injured his back but that his doctors had released him to work. While working at Helget, Jeffrey was responsible for loading cylinders filled with gas onto the delivery truck and delivering them to the customers. According to Dale Weidner, Jeffrey's supervisor at Helget, the typical filled gas cylinder stands about 5½ feet tall and weighs between 145 and 160 pounds, but there are smaller 3-foot cylinders that weigh about 8½ pounds (we assume the reference is to an empty cylinder). Typically, Helget uses a two-wheeler to move the larger cylinders and a four-wheeled cart to move the smaller cylinders. Helget's policy is that its employees are to use the two-wheelers and four-wheeled carts to lift and move the gas cylinders.
During the morning on February 18, 2002, Jeffrey and Weidner loaded Jeffrey's delivery truck with gas cylinders and then Weidner's assistant inventoried Jeffrey's load. As Jeffrey pulled away from the loading dock, some of the cylinders fell over in the truck. According to Weidner's testimony, Jeffrey and Weidner's assistant picked up the cylinders and restrapped them to the truck's wall. Weidner further testified that in the afternoon of the same day, Jeffrey hit a parked car with his truck in a parking lot, and that Weidner came to the scene of the accident. Weidner testified that Jeffrey told him he was "all right." Weidner had Jeffrey take a drug test per company policy and sent him home. The drug test was negative, although we note that the record does not reveal which drugs were screened.
The next day, Jeffrey resumed his regular work schedule. Between February 19 and March 8, 2002, Jeffrey called in sick once. Also between February 19 and March 8, Weidner approached Jeffrey about his job performance, and Weidner testified that Jeffrey explained that he had had a rough couple of weeks with the "accident and everything."
However, Jeffrey had visited his physician, Dr. Kurt V. Gold, on February 21, 2002, and according to Dr. Gold's records, Jeffrey said that he did significant lifting of gas cylinders earlier in the week—which activity required bending, twisting, and lifting—and that he was in a minor car accident. Dr. Gold evaluated Jeffrey and concluded that Jeffrey's then-current back problem was a work-related aggravation of his preexisting low-back condition. Dr. Gold prescribed a fentanyl lozenge and a fentanyl patch for Jeffrey's aggravated back injury.
On February 25, 2002, Weidner observed Jeffrey wearing a back brace at work. According to Weidner's testimony, Jeffrey informed him that his back was a "little tight" and that the back brace had nothing to do with Helget.
Then on March 8, 2002, Weidner met with Jeffrey, but the only account of that meeting is found in Weidner's testimony which we summarize. Jeffrey decided to resign his position effective March 8. During this meeting, Jeffrey started talking about the events of the previous month and informed Weidner that he had been wearing his back brace under his uniform and that he had been using "morphine suckers" for the pain, which medication other evidence shows to have been fentanyl lozenges. Jeffrey inquired about the possibility of something work-related coming up after his resignation that resulted from his time at Helget, and Weidner stated that "if there was a problem because of his employment here, [Helget] would do what was required." Jeffrey signed a form from Helget which said that he was leaving his employment by mutual agreement because of health concerns as well as productivity issues. Helget offered Jeffrey 2 weeks of severance pay, and the final check was to be issued on April 1.
Later on the same day that Jeffrey resigned, Dr. Gold evaluated him and wrote in his notes that it was unfortunate Jeffrey's employment with Helget had ended and that Dr. Gold would appeal to Jeffrey's employer to "reconsider under these circumstances and to contact [Dr. Gold] personally if [Helget] has any questions or concerns regarding [Jeffrey's] condition." Dr. Gold also wrote that he wanted to see Jeffrey again for a progress review in 4 weeks, which would have been in April 2002.
After resigning, Jeffrey contacted Weidner about job references and the possibility of returning to work at Helget. Approximately 7 days after resigning, Jeffrey met with the owner of Helget in his office. Jeffrey inquired about getting his job back, and the owner said that he asked Jeffrey about his back, to which Jeffrey responded that he could do the job as required.
On April 4, 2002, Dr. Gold evaluated Jeffrey. Dr. Gold noted that Jeffrey had increased pain in his back and that Jeffrey had "attempted to go off" the fentanyl patch, but without success. On April 19, Helget's workers' compensation insurance carrier issued a payment for temporary total disability benefits in the amount of $1,840.02 for 6 weeks (March 22 through May 2, 2002). The temporary total disability payments continued until December 4, 2003. On December 24, Jeffrey filed his petition for temporary and permanent total disability benefits, payment of medical care expenses, and vocational rehabilitation benefits. Jeffrey continued to see various physicians regarding his back pain who prescribed various pain medicines including OxyContin and Lortab. Jeffrey was also evaluated by a psychiatrist, Dr. Mark J. Diercks, who wrote in his notes that Jeffrey had been treated with antidepressants by his primary care physicians for the past 5 years and was on antidepressants as of February 20, 2003, when Dr. Diercks evaluated Jeffrey. According to Dr. Diercks' notes, Jeffrey experienced seizures because of his antidepressant medication. Dr. Diercks concluded that Jeffrey was depressed. Jeffrey died on March 13, 2004. Jeffrey's surviving wife, Pamela, revived Jeffrey's action. The parties stipulated at trial that Jeffrey died on March 13 as a result of drug toxicity.
After the trial on November 29, 2004, the compensation court trial judge found that Jeffrey had suffered an injury on February 18, 2002, arising out of and in the course of his employment but that he failed to give to his employer notice of his injury as soon as practicable and that therefore, his claim was barred under § 48-133. Pamela filed an application for review, and on November 18, 2005, the compensation court three-judge review panel affirmed the trial judge's order of dismissal.
Pamela appealed the decision of the review panel, and at the time that Pamela filed her brief, she failed to file a notice of a constitutional question with respect to § 48-133. On April 17, 2006, she filed a motion for enlargement of time to file the notice of constitutional question. The Supreme Court denied such motion, and accordingly, no issue of the constitutionality of a statute is involved in the appeal. Thus, the case remains on our docket.
Pamela asserts, reordered and restated, that the trial court erred by (1) finding that the deceased failed to report his injury as soon as practicable after the accident, (2) allocating to Pamela the burden of proving that the deceased's fatal ingestion of narcotic drugs was not willful negligence, (3) finding that the deceased's fatal ingestion of narcotics constituted willful negligence, and (4) assuming that as a matter of law, the intentional ingestion of narcotic drugs by the deceased was willful negligence.
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...
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... ... See, Snowden v. Helget Gas Products, 15 Neb.App. 33, 721 N.W.2d 362 (2006); Williamson v. Werner Enters., supra ... ...