Weyerman v. Freeman Expositions, Inc., A-18-277.
| Decision Date | 18 December 2018 |
| Docket Number | No. A-18-277.,A-18-277. |
| Citation | 26 Neb.App. 692,922 N.W.2d 246 |
| Parties | Randy WEYERMAN, Appellee, v. FREEMAN EXPOSITIONS, INC., Employer, and Old Republic Insurance Company, Insurance Carrier, Appellants. |
| Court | Nebraska Court of Appeals |
Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson, Kuper & Wenninghoff, P.C., L.L.O., Omaha, for appellants.
Jacob M. Steinkemper, of Steinkemper Law, P.C., L.L.O., Omaha, for appellee.
Freeman Expositions, Inc., and its insurance carrier, Old Republic Insurance Company (referred to herein individually and collectively as "Freeman Expositions"), appeal from the Nebraska Workers' Compensation Court’s award of benefits to Randy Weyerman. In the award, the compensation court ordered Freeman Expositions to pay to Weyerman temporary total disability payments. In addition, the court ordered Freeman Expositions to "continue to provide and pay for such future medical and hospital services and treatment as may be reasonably necessary as a result of [Weyerman’s] accident and injury." On appeal, Freeman Expositions assigns numerous errors, including that the compensation court erred in finding that it was Weyerman’s employer on the day of his accident; that Weyerman’s injury occurred on September 17, 2015, rather than on October 9; that Weyerman had not yet reached maximum medical improvement (MMI); and that Weyerman is entitled to future medical care. For the reasons set forth herein, we affirm the compensation court’s award of benefits to Weyerman.
Since 1994, Weyerman has worked as a stagehand. He described his job as In order to facilitate job opportunities, Weyerman is a member of the "International Alliance of Theatrical, Stage, and Moving Pictures." This group is also referred to in our record as the "Local 42" or the "union." Local 42 acts as a "referral hall," obtaining and assigning jobs to its members.
In 2015, Local 42 had a collective bargaining agreement with Complete Payroll Services, Inc. (Complete Payroll). Pursuant to that agreement, Complete Payroll was considered the employer of members of Local 42 when the members worked on Complete Payroll jobs. The president of Complete Payroll confirmed that in 2015, the company was the employer of union members when they worked on Complete Payroll jobs. He explained that Complete Payroll had contracts with various vendors who needed stagehands. Complete Payroll would provide union members to the vendors. In return, the vendors would pay Complete Payroll for the work completed by union members. Complete Payroll would then disburse paychecks directly to union members. In addition, Complete Payroll provided union members with certain employment benefits. The collective bargaining agreement between Local 42 and Complete Payroll provided that Complete Payroll possessed "Management Rights" regarding its workforce:
Subject to the provisions of this Agreement and applicable state and federal law, the Employer retains the sole right to manage its business and direct the work force including, but without being limited to, the right to establish new tasks, abolish or change existing tasks, increase or decrease the number of tasks, change materials, processes, products, equipment and operations. The Employer shall have the right to schedule and assign work to be performed, establish, maintain and enforce reasonable plant rules and regulations, establish attendance policies and have the right to hire or rehire employees, promote employees, to demote or suspend, discipline or discharge for just cause, and to transfer or layoff employees because of lack of work.
The agreement also delineated a list of "work rules" for union members. These rules addressed such things as the length of the workday and the workweek, overtime and "premium" pay, and expectations during performances or rehearsals.
Members of Local 42 could also obtain work separate and apart from Complete Payroll. In 2015, Local 42 also had a collective bargaining agreement with Freeman Expositions. That agreement referred to Freeman Expositions as the "employer" when union members were working on Freeman Expositions' jobs. In fact, the first time a union member would work for Freeman Expositions, the member had to fill out "new hire paperwork." Freeman Expositions would assign each union member an employee number and keep a record of each union member who had done work for the company. Freeman Expositions paid union members directly for their work on Freeman Expositions' jobs. In addition, the agreement between Local 42 and Freeman Expositions included a description of the management rights possessed by Freeman Expositions. This description is nearly identical to the description of management rights retained by Complete Payroll in its agreement with Local 42. Robert Lane, the business agent for Local 42, testified that Freeman Expositions managed union workers at the jobsites and controlled the work that the members completed.
On September 17, 2015, Weyerman was working for Freeman Expositions, setting up for a trade show. During the first hour of his workday, Weyerman unloaded a truck full of materials, including heavy carts and "[c]urtain rod carts." While he was still unloading the materials, Weyerman began to feel pain in his back. Despite the pain, Weyerman continued to work, rolling out aisle carpets and hanging curtains for individual booths. As Weyerman worked, the pain worsened. Weyerman described the pain as "sharp" and "pinching." Weyerman finished his workday and had the next day off of work.
When Weyerman returned to work after his day off and began cleaning up after the trade show, he "was hurting horribly." He got through the workday, but was only able to put away folding chairs. He could not do much physical labor. Weyerman’s pain did not improve. By 5 days after the accident, Weyerman described the pain as "brutal." He was unable to even "get up off the floor." Weyerman decided that he needed to report his injury and see a doctor. Weyerman informed Lane that he had hurt his back while working for Freeman Expositions.
Lane forwarded Weyerman’s accident report to Freeman Expositions. Freeman Expositions then authorized Weyerman to see Dr. Arthur West, who became Weyerman’s treating physician.
Medical records indicate that when Weyerman first saw his treating physician on September 22, 2015, he was diagnosed with a lumbar sprain and prescribed pain medication. The treating physician’s records indicate that 3 days later, on September 25, during a followup appointment, Weyerman told him that his pain had decreased and that his symptoms were improving. As a result of Weyerman’s report, his treating physician told Weyerman that he could return to "modified work/ activity." The records further reflect that almost 1 week later, on October 2, Weyerman informed his treating physician that his symptoms had resolved and that he had been performing his regular work duties. The treating physician then released Weyerman from his care.
According to Weyerman and Lane, during the latter part of September 2015, Weyerman did return to work as a stagehand. However, Lane indicated that although Weyerman was working, he continued to complain that his back was hurting. Weyerman indicated to Lane that he really needed to work due to his financial situation, so Lane permitted Weyerman to do less physical jobs, including running a spotlight, handling lighting gear, and setting up for a ballet performance.
On October 9, 2015, a few days after Weyerman was released from his treating physician’s care, Weyerman was working for Complete Payroll to set up for a concert. He was assigned to push boxes from a truck to the inside of the venue. Within 2 hours of beginning this work, Weyerman reported that he could not continue because of his back pain. He "couldn't even get up off [a] chair at that point." Weyerman reported his injury and sought medical treatment. October 9 is the last day that Weyerman worked as a stagehand.
On October 12, 2015, Weyerman was seen by a physician’s assistant at a health clinic. The notes from this visit indicate that Weyerman reported that he injured his back 7 days prior to the visit, but he was "not sure" how he sustained the injury. A week later, on October 19, Weyerman saw his treating physician again. Weyerman reported that he was again experiencing back pain and was unable to perform his work duties. Ultimately, the treating physician prescribed pain medication for Weyerman and ordered a magnetic resonance imaging of his lower back. The treating physician indicated that Weyerman was not currently able to work.
The results of the magnetic resonance imaging revealed that Weyerman had multiple "disc bulge[s]" which were collectively referred to as "[m]ild to moderate multilevel lumbar spondylosis." On November 2, 2015, the treating physician released Weyerman to return to work with some restrictions; however, Weyerman did not return to work. In addition, the treating physician referred Weyerman to a spine and pain center and to a physical therapist.
Weyerman began seeing Dr. Liane Donovan at the spine and pain center on November 17, 2015. During Weyerman’s treatment with Donovan, he received multiple epidural steroid injections and attended more than 20 physical therapy sessions. Weyerman reported that neither of these treatment options afforded him significant, long-term relief. In February 2016, Weyerman saw a surgeon, who was of the opinion that Weyerman had no "surgical options at this point." The surgeon noted that he was "unable to identify the source of [Weyerman’s] symptoms[,] but he...
To continue reading
Request your trial
-
Homstad v. Block 21, LLC
...regard to causation of an injury is one for determination by the compensation court as the finder of fact. Weyerman v. Freeman Expositions, 26 Neb. App. 692, 922 N.W.2d 246 (2018). The trial judge in a workers' compensation case is entitled to accept the opinion of one expert over another. ......