Wyatt v. Drivers Mgmt. Inc.
| Decision Date | 18 October 2011 |
| Docket Number | No. A-10-1130.,A-10-1130. |
| Parties | RODNEY WYATT, APPELLANT AND CROSS-APPELLEE, v. DRIVERS MANAGEMENT, INC., APPELLEE, AND ST. PAUL TRAVELERS INSURANCE COMPANY, APPELLEE AND CROSS-APPELLANT. |
| Court | Nebraska Court of Appeals |
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the Workers' Compensation Court. Affirmed.
Tony Brock, of Brock Law Offices, P.C., for appellant.
Daniel R. Fridrich, of Werner Enterprises, Inc., for appellee Drivers Management, Inc.
Shirley K. Williams and Katherine S. Vogel, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., for appellee St. Paul Travelers Insurance Company.
Rodney Wyatt appeals from the order of the three-judge review panel of the Workers' Compensation Court which affirmed in part and reversed in part the single judge's award of benefits to Wyatt in his claim against his employer, Drivers Management, Inc. (DMI), and St. Paul Travelers Insurance Company (Travelers). Travelers has cross-appealed. This appeal involves two accidents and injuries and a medical history spanning 20 years. At the time of Wyatt's first accident and injury, Travelers provided workers' compensation insurance coverage to DMI, but by the time of Wyatt's second accident and injury, DMI was self-insured. Accordingly, among other things, this case involves a dispute between DMI and Travelers as to liability for Wyatt's condition after he reached maximum medical improvement (MMI) for the second injury. For the reasons that follow, we affirm.
Wyatt was employed by DMI as an over-the-road truckdriver on February 5, 1988, when he sustained a C7-T1 fracture of his neck in a work-related accident after falling from his flatbed trailer. Following the injury, Wyatt developed neck pain as well as pain in his hand and forearm. Wyatt underwent spine fusion surgery on his cervical spine on February 11. An EMG performed after the surgery showed a C8 bilateral radiculopathy. Wyatt continued to have neck, hand, and arm pain throughout 1988. Dr. Mark Griffith examined Wyatt on August 9, 1988, at which time Wyatt complained of numbness, tingling, and weakness "in [his] fourth and fifth digits, in the right forearm in the ulnar region." Griffith noted in November that an EMG and nerve study performed on Wyatt was normal, so it was appropriate to continue conservative treatment of the C8-T1 radiculopathy.
In early 1989, Wyatt successfully participated in a work hardening program and completed a functional capacity evaluation (FCE), demonstrating he could work in the heavy demand category. Griffith released Wyatt to return to work on April 6, 1989. After returning to driving a truck, Wyatt continued to complain of bilateral numbness, tingling, and cramping in his hands and pain and stiffness in his neck. According to Griffith, Wyatt reached MMI on September 11, 1989. Combining the impairment for the neck and upper extremities, Griffith assigned Wyatt a 20-percent permanent partial impairment to the body as a whole.
In connection with the 1988 injury and workers' compensation claim, Wyatt was found to be temporarily totally disabled from February 6, 1988, through April 13, 1989. Travelers fully paid Wyatt for this period of temporary total disability, and Travelers also paid Wyatt for a 20-percent permanent partial disability from April 14, 1989, through November 5, 1993.
At some point in 1990, Wyatt determined that the weakness in his hands, the pain in his neck, and his decreased total strength made it too difficult to drive a flatbed truck. As a result, he switched to DMI's vans division, which was significantly less demanding than the flatbed division.
The medical records in this case are quite extensive and include numerous doctor visits and treatments between the time Wyatt reached MMI for his first accident and injury and the time of his second accident and injury, which records we do not detail here. From 1990 through 2000, Wyatt's neck pain never ceased, but he continued to work while taking anti-inflammatory medication. Throughout this time, he also had numbness and tingling in his arms, ring fingers, and pinkie fingers.
Sometime in 2003, Wyatt began driving a truck with a rougher suspension and experienced greater pain in his elbows, arms, hands, and wrists. On November 17, Wyatt left work and sought medical treatment from Dr. Bruce Stelmak. Wyatt complained of chronic pain and burning in his hands and cervical soreness in the C8 region. EMG and nerve conduction testing was performed and revealed bilateral carpal tunnel syndrome and bilateral ulnar neuropathy as well as the previously documented cervical radiculopathy. In his November 17 notes, Stelmak described the situation as "complex" and expressed his belief that Wyatt's then current symptoms were mostly related to bilateral carpal tunnel syndrome. Stelmak did not feel that Wyatt should continue his heavy work level and driving a truck, unless he could tolerate the discomfort. Wyatt continued driving for DMI until March 20, 2004. Dr. Vidya Jain performedsurgeries on Wyatt for his bilateral carpal tunnel syndrome and ulnar nerve entrapment in June and September.
Jain referred Wyatt to Dr. Yili Zhou for pain management. Wyatt's first visit with Zhou was on February 18, 2005, at which time Wyatt informed Zhou that his cervical fusion had helped his neck pain but did not resolve his arm pain and that his hand pain was somewhat relieved after the 2004 surgeries. Wyatt's pain in his neck, arms, and hands decreased from 8 out of 10 to 4 or 5 out of 10 by July and remained at a similar level, well-controlled with medication, during subsequent visits with Zhou from 2005 through September 2007.
Dr. Eric Scott performed an independent medical evaluation of Wyatt on February 14, 2005. Scott noted that Wyatt had been maintained in a temporary total disability status by one of his doctors until 2 weeks prior to the appointment, when he was placed in a light-duty status. Scott opined that Wyatt's then current problems were related to the 1988 work injury and "predominantly involve[d] a post-cervical laminectomy syndrome and persistent pain syndrome from his spinal cord/nerve root injury."
Wyatt underwent an FCE on March 17, 2005. The examiner determined Wyatt's restrictions and concluded that Wyatt was able to perform "Light PDC" work but concluded that Wyatt was unable to perform the regular duties of a truckdriver at the time of the examination. Scott reviewed the FCE and concurred with its conclusions. In a letter to Wyatt's attorney on March 6, 2006, Scott opined that Wyatt's impairment ratings and current work restrictions were the direct result of the February 1988 work injury.
Dr. Peter Cimino examined Wyatt for Travelers in November 2007. Cimino opined that Wyatt reached MMI for the 1988 accident 1 year after that accident, that Wyatt's "current symptoms and problems are related to a chronic repetitive trauma that has led to bilateral nerve conditions in both hands that is currently being addressed by the 2003 claim," and that Wyatt had also reached MMI for the "2003 event." Cimino further opined that the "FCE done on March 3, 198[9] accurately reflects what restrictions are attributed to the 1988 accident" and that "changes in the FCE that are demonstrated on March 17, 2005, are attributed to the repetitive trauma due to driving in the years following the recovery in 1989."
Dr. Michael O'Neil examined Wyatt in November 2007 at DMI's request. O'Neil indicated that he was unsure if Wyatt ever actually had carpal tunnel syndrome, but opined that if he did have carpal tunnel, it was exacerbated by driving a truck over the years. O'Neil opined that Wyatt was at MMI for the carpal tunnel effective February 14, 2005, when he was examined by Scott. O'Neil opined further that Wyatt did not have any permanent partial impairment or work restrictions due to the bilateral carpal tunnel syndrome, because the EMG and nerve conduction studies performed in January 2008 were negative for any residual carpal tunnel syndrome. O'Neil did not believe Wyatt needed further medical treatment for his "possible" bilateral carpal tunnel syndrome. He felt Wyatt's ongoing complaints were related to the 1988 radiculopathy.
Wyatt underwent another FCE on June 24, 2008, which documented Wyatt's continued neck, hand, and arm symptoms and placed him in the sedentary-light physical demand level of work for an 8-hour day.
In an August 2008 report, Jain opined that "[a]fter release, . . . if [Wyatt's] symptoms persist, then probably they can be assigned to the neck."
In a letter to Travelers' attorney, dated October 27, 2008, Scott noted:
After reviewing these records [including Wyatt's deposition, records from Jain, and several independent medical examinations], it is my opinion that [Wyatt's] original 1988 accident is the cause of his chronic neck pain and residual radiculopathy. However, the new elbow and hand complaints that developed during the 2003 time frame and continue are caused by or were aggravated by the continued driving from 1990 through 2003. Thus, though, he had residual cervical myelopathy/radiculopathy from his original neck injury[,] the subsequent years of driving a truck have at least aggravated those symptoms and resulted in the carpal tunnel syndrome and ulnar neuritis described in the records.
In addition to the physical symptoms documented above, Wyatt's current claim also includes a mental health component. In September 27, 2006, Dr. Umesh Mhatre diagnosed Wyatt with depression resulting from the constant pain caused by his injuries. By January 2007, Mhatre noted that Wyatt's depression was fairly well controlled with medication and had improved. Mhatre issued two causation reports. In the first, dated February 20, 2008, Mhatre stated that it would...
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