Stacy v. Great Lakes Agri Marketing, Inc.
| Decision Date | 25 July 2008 |
| Docket Number | No. S-07-1000.,S-07-1000. |
| Citation | 276 Neb. 236,753 N.W.2d 785 |
| Parties | Michael E. STACY, appellant, v. GREAT LAKES AGRI MARKETING, INC., appellee. |
| Court | Nebraska Supreme Court |
Jeffry D. Patterson, of Battle & Geier Law Firm, Lincoln, for appellant.
D. Steven Leininger and Sonya K. Koperski, of Leininger, Smith, Johnson, Baack, Placzek & Allen, Grand Island, for appellee.
Michael E. Stacy was employed by Great Lakes Agri Marketing, Inc., doing business as Bridgeport Tractor, when he sustained an injury in the course of and arising out of his employment. Specifically, Stacy was removing a part from a tractor when a piece of metal struck him near the right knee, causing a nondisplaced fracture of his medial condyle. Stacy developed deep vein thrombosis in his right leg, and it is not disputed that Stacy requires anticoagulation therapy for the foreseeable future. The primary issue presented in this workers' compensation appeal is whether the diagnosis of a complex pain disorder in Stacy's right leg, or his need to take anticoagulant medications, has resulted in an injury to his body as a whole instead of to a scheduled member. Because the evidence is sufficient to support the Workers' Compensation Court's finding of a scheduled member injury, we affirm its judgment.
Stacy graduated from high school in 1983 and joined the Marine Corps. He served 4 years as a combat engineer, doing construction work and demolitions. After he was honorably discharged, Stacy and his wife had a flooring business in Chadron, Nebraska, installing carpet, tile, vinyl, and laminate flooring.
Stacy and his wife moved to the area of Bridgeport, Nebraska, in January 2004 and planned to continue in the flooring business. But they needed additional income, so Stacy obtained the job at which he was injured. Stacy's primary duties involved removing tractor parts and cleaning them for resale. Stacy was injured on July 21 while using a sledge hammer to remove a broken axle, when a piece of metal flew off the tractor and hit him in the leg below the right knee.
About 3 weeks after the accident, Stacy was still suffering from swelling in his right leg. He was admitted to the hospital, and blood clotting was discovered, which was treated with heparin, Coumadin, and compression hose. In September 2004, Stacy began to suffer from "hypersensitivity" in his leg. Stacy testified that
[b]efore it was just the swelling and kind of stiffness and that, and it — it started getting so it was like needles. I don't know how to really explain it, what I've tried to say before is, like when you've been out in the cold and your hands get really, really cold out in the wintertime and you come inside and stick your hands under hot water, that instant — feels like a bunch of little needles stickin' in your leg. And that's what my leg started to feel like.
In late September 2004, Stacy's treating orthopedic surgeon, Dr. Bryan Scheer, diagnosed Stacy with reflex sympathetic dystrophy (RSD), which can be briefly described as an excessive or abnormal response of the sympathetic nervous system following an injury.1 On October 27, Scheer released Stacy to sedentary work, but not to drive, stand on the job, or "other activity."
Stacy was evaluated at the Mayo Clinic Vascular Center in January 2005 by Dr. Mark Costopoulos. Costopoulos found evidence of both chronic and acute deep vein thrombosis in the right leg and, at the least, postphlebitic syndrome in the right leg. Costopoulos prescribed prescription-strength compression hose and continued Coumadin anticoagulation therapy. And Costopoulos concluded that Stacy "will need lifelong Coumadin anticoagulation for this problem for as long as he can take the medication relatively safely and reliably." Costopoulos noted that workers* compensation case evaluations were not performed at the Mayo Clinic, so Stacy's "return to work evaluation" was deferred to Stacy's primary care physician and workers' compensation insurer.
Back in Nebraska, on June 27, 2005, Scheer observed "an atrophic leg that is very dysthetic and painful." Scheer also observed "some skin color changes" and that Stacy's calf was "tender and very small when compared to the opposite side." Scheer reported that Stacy and his wife asked Scheer to consider amputation of Stacy's right leg. Scheer encouraged pain management techniques, but concluded Stacy's prognosis was "poor." Scheer "withheld any issues regarding [maximum medical improvement] at this point." In August 2005, Scheer directed Stacy to remain off work until further notice, based on a representation from either Stacy or Stacy's wife that Stacy was physically unable to work.
Dr. Bruce Lockwood evaluated Stacy in September 2005. Lockwood is board certified in physical medicine and rehabilitation, and in electrodiagnostic medicine. After the September examination, Lockwood did not believe Stacy was at maximum medical improvement, although "ascertaining that time is exceedingly difficult." Lockwood testified that "a reasonable diagnosis at the time would have been a tibial nerve injury causing the innervation in the muscles that it innervated." Lockwood thought there was "probably" also a perineal nerve injury, and Lockwood thought "there was an issue addressing, which wasn't firm in [Lockwood's] mind, whether or not [Stacy] had CRPS type I or RSD." Lockwood explained that CRPS was "chronic regional pain syndrome" and that CRPS type I described, essentially, RSD. But Lockwood did not finalize that diagnosis. Lockwood also noted a deep vein thrombosis in Stacy's right leg, with probable postphlebitic syndrome, and said Stacy would need anticoagulation treatment for the foreseeable future.
At a followup discussion on November 16, 2005, Lockwood discussed with Stacy, "very candidly," that Lockwood had concerns about noncompliant behavior. Lockwood did not conduct another physical examination. Lockwood's notes indicate that Stacy was resistant to an electromyogram because Stacy's previous electromyogram, at the Mayo Clinic, had been painful. Lockwood was unable to contact Stacy after November 16 and pronounced him at maximum medical improvement. Lockwood concluded Stacy was being noncompliant and stated that "[i]n light of what would appear to be consistent and repeated noncompliant behavior, it would appear as though he is at maximum medical improvement, based on the information made available to [Lockwood]." Lockwood also assigned an impairment rating, based on an RSD diagnosis, of 9-percent impairment to the body as a whole. But Lockwood altered that rating in response to a request from Stacy's case manager. Lockwood noted, in his letter to the case manager, that "[i]t would appear as though [the case manager is] asking [Lockwood] to convert the 9% whole person impairment to an extremity impairment." He converted the rating to a 22- or 23-percent lower extremity impairment.
Lockwood testified that there was no indication Stacy's accident resulted in physical injury other than to his right leg and that "[w]ith reluctance," he had given Stacy an impairment rating. Lockwood later withdrew his impairment rating at his deposition, because although he "was asked to do it" and gave his best effort, he did not "think that's reasonable to stand by." Lockwood testified that there was no physical injury to Stacy's body other than to his right leg and that he was not "comfortable" diagnosing Stacy with a physical injury to his sympathetic nervous system. However, Lockwood opined that if Stacy had a "sympathetic or an RSD situation," such an injury would be classified as an extremity injury.
On December 2, 2005, Scheer wrote Bridgeport Tractor's workers' compensation insurer, stating that Stacy "is requesting he be placed at [maximum medical improvement] which I think is reasonable." In a letter dated December 29, 2005, Scheer opined that Stacy's deep vein thrombosis, "his chronic lower extremity pain, his complex regional pain syndrome, and his medial condyle fracture are, within a reasonable degree of medical certainty, related to his injury." Scheer opined that Stacy would need future medical care for chronic pain and the poor function of his right leg. Scheer rated Stacy's right leg as 100-percent impaired and opined that although it would be difficult to assess Stacy's permanent work restrictions, Scheer thought Stacy would
have little use of his right lower extremity, including vigorous labor, heavy lifting, ladders, etc., but he should be able to be retrained in another profession. Also, his anticoagulation therapy and his weakness would limit it, as well as his pain syndrome may limit his employment opportunities.
On December 22, 2005, Bridgeport Tractor's workers' compensation insurer had informed Stacy, through Stacy's counsel, that Stacy had been placed at maximum medical improvement by Lockwood, with a 22- to 23-percent impairment of the right lower extremity. A final lump-sum payment for permanent partial disability was made on that basis.
On July 20, 2006, Scheer opined that
transient sedentary activity without prolonged standing or prolonged sitting is warranted. Certainly, he has a functional left lower extremity, bilateral upper extremity and I think he is a very bright man who could be vocationally rehabilitated to do many tasks, but labor, heavy lifting, squatting, bending, ladders, repetitive activity, prolonged standing, prolong [sic] sitting and others will likely have to be avoided for the foreseeable future if not permanently.
Scheer had "no doubt" about the diagnosis of RSD.
Dr. Lawrence Lesnak, a Colorado physician, board certified in physical medicine and rehabilitation, examined Stacy on August 23, 2006. Lesnak found medical evidence to suggest deep vein thrombosis and postphlebitic syndrome in Stacy's right leg. Lesnak found "no...
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