Swanson v. Park Place Automotive, S-03-167.

Citation672 N.W.2d 405,267 Neb. 133
Decision Date19 December 2003
Docket NumberNo. S-03-167.,S-03-167.
PartiesTimothy L. SWANSON, Appellee, v. PARK PLACE AUTOMOTIVE, and Farmers Insurance Group, Appellants.
CourtSupreme Court of Nebraska

David A. Dudley, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellants.

Darrell K. Stock, of Snyder & Stock, Lincoln, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

Timothy L. Swanson was injured in an accident that occurred while he was test-driving an automobile for his employer, Park Place Automotive (Park Place), and he was awarded workers' compensation benefits. The primary issue presented in this appeal is whether Swanson could receive loss of earning power and vocational rehabilitation benefits without having been assigned a permanent functional impairment rating.

BACKGROUND

Swanson was injured on May 21, 1999, when the vehicle he was test-driving struck another vehicle in a parking lot. Swanson had pain in his back and leg following the accident and went to the hospital on the same day. Swanson was referred to Dr. Daniel Ripa, who became Swanson's treating physician for the injuries at issue in this appeal. Swanson continued to receive medical treatment and physical therapy, but his condition did not improve, and on March 6, 2000, Swanson had a "hemilaminotomy with lateral recessed decompression of the left S1 nerve overlying small lumbar disk herniation left L5-S1 level." After the surgery, Dr. Ripa determined that Swanson had achieved maximum medical improvement. Dr. Ripa opined that Swanson should avoid lifting in excess of 25 to 30 pounds on a repetitive basis; should not be involved in activities that require prolonged bending, stooping, squatting, kneeling, or repetitive bending below the knee level; and should permanently avoid lifting greater than 50 pounds. The record also contains a loss of earning capacity analysis, in which a vocational rehabilitation specialist opined that based on Swanson's physical restrictions, his loss of earning capacity was approximately 15 percent.

Prior to his 1999 accident, Swanson had been treated for back and leg pain. Swanson was treated by a chiropractor in 1988 for low-back pain and improved as a result of the treatment. Swanson again received chiropractic treatment for several instances of back pain between 1989 and 1999. In his deposition, Swanson stated that he had not had leg pain prior to the accident and that when giving his medical history to Dr. Ripa, Swanson had not reported any prior leg pain. However, at trial, Swanson testified that he had testified inaccurately at his deposition and that he had in fact told Dr. Ripa about his prior leg pain.

The record contains two letters from Dr. Ripa to Swanson's counsel, both dated April 7, 2000, expressing an opinion regarding the connection between Swanson's preexisting back condition, the accident, and Swanson's subsequent injuries and treatment. There does not appear to be any explanation in the record for the existence of the two separate letters. One letter states, in relevant part, that "most likely the ongoing current medical treatment is related, at least in some degree, to his original radiographic abnormalities but may well have been exacerbated in his motor vehicle accident." The other letter states, less ambiguously, that Swanson's "motor vehicle accident of May 1999 exacerbated his low back condition and resulted in the necessary medical treatment including the surgery." No objection was made at trial to the exhibit containing Dr. Ripa's opinion(s) regarding Swanson's injury.

The single judge, relying on Dr. Ripa's opinion, determined that Swanson's accident "injured his low back, which required surgery." The single judge awarded temporary total disability benefits and directed Park Place to pay Swanson's present and future medical expenses. However, because Dr. Ripa did not assign Swanson a permanent functional impairment rating, no permanent partial disability benefits were awarded, nor were vocational rehabilitation benefits. See Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). Both parties filed an application for review in the Workers' Compensation Court. A three-judge review panel affirmed the single judge's finding that Swanson's low-back injury was caused by the automobile accident. However, the review panel concluded that Green did not preclude an award of loss of earning power or vocational rehabilitation benefits in the absence of a permanent functional impairment rating, so long as permanent restrictions had been imposed by a physician. The review panel reversed the single judge on that issue. Park Place filed a timely appeal.

ASSIGNMENTS OF ERROR

Park Place assigns that the review panel erred in ruling that (1) the evidence presented at trial was sufficient to show that Swanson suffered a work-related injury to his lower back, rather than his condition's being the result of a natural progression of a preexisting condition, and (2) Swanson was entitled to loss of earning power and vocational rehabilitation benefits even though he had not been assigned a permanent functional impairment rating.

Park Place also argues, very briefly, that Swanson would not be entitled to vocational rehabilitation because he left a job provided by Park Place that was within his physical restrictions. However, because this was not assigned as error, we do not consider it. See State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d 512 (2003) (errors argued but not assigned will not be considered on appeal).

STANDARD OF REVIEW

Pursuant to Neb.Rev.Stat. § 48-185 (Cum. Supp. 2002), 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. Morris v. Nebraska Health System, 266 Neb. 285, 664 N.W.2d 436 (2003). When testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence. Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id.

ANALYSIS
SUFFICIENCY OF EVIDENCE OF WORK RELATED INJURY

Park Place's first assignment of error challenges the sufficiency of the evidence to support the single judge's finding that Swanson suffered a compensable, work-related injury. Park Place argues that Swanson's injury was the result of the natural progression of his preexisting back condition.

Park Place adduced evidence before the single judge to support that conclusion. As noted above, Swanson had a history of back problems, and Park Place offered the opinion of Dr. Charles Taylon, a neurosurgeon, who opined that "[a]ny back problems that [Swanson] had [after the accident] are clearly a continuation of the problem he was having just a short time before the accident." Dr. Taylon further opined that there was no evidence that the accident had anything to do with Swanson's subsequent need for surgery and questioned whether the accident had anything to do with Swanson's back pain.

However, as also noted above, Swanson offered the opinion of Dr. Ripa, his treating physician, who opined that Swanson's "motor vehicle accident ... exacerbated his low back condition and resulted in the necessary medical treatment including the surgery." In a workers' compensation case involving a preexisting condition, the claimant must prove by a preponderance of evidence that the claimed injury or disability was caused by the claimant's employment and is not merely the progression of a condition present before the employment-related incident alleged as the cause of the disability. Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143 (1997); Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996). Such claimant may recover when an injury, arising out of and in the course of employment, combines with a preexisting condition to produce disability, notwithstanding that in the absence of the preexisting condition, no disability would have resulted. Id. In short, "the lighting up or acceleration of preexisting conditions by accident is compensable." Hale v. Vickers, Inc., 10 Neb.App. 627, 634, 635 N.W.2d 458, 468 (2001).

This case presents conflicting expert opinions on whether Swanson's postaccident surgery was necessitated by his accident or was the natural progression of a preexisting back condition. The single judge accepted Dr. Ripa's opinion and determined that Swanson suffered a compensable work-related injury. Where the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court. Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999).

Park Place offers two arguments against Dr. Ripa's opinion. First, Park Place argues that Dr. Ripa's opinion lacked appropriate foundation because, according to Park Place, Swanson did not provide Dr. Ripa with a complete and truthful medical history....

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