Zavala v. ConAgra Beef Co.

• Decision Date: 25 June 2002
• Docket Number: No. A-01-1083.,A-01-1083.
• Citation: 647 N.W.2d 656,11 Neb. App. 235
• Parties: Maria ZAVALA, Appellant, v. CONAGRA BEEF COMPANY, Appellee.
• Court: Nebraska Court of Appeals

647 N.W.2d 656

11 Neb. App. 235

Maria ZAVALA, Appellant, v. CONAGRA BEEF COMPANY, Appellee.

No. A-01-1083.

Court of Appeals of Nebraska.

June 25, 2002.

Lee S. Loudon, of Law Office of Lee S. Loudon, P.C., L.L.O., Lincoln, for appellant. Shirley K. Williams and Joseph A. Wilkins, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., Lincoln, for appellee.

SIEVERS, CARLSON, and MOORE, Judges.

SIEVERS, Judge.

Maria Zavala petitioned for workers' compensation benefits for an on-the-job injury she sustained while working for Con-Agra Beef Company (ConAgra). The Nebraska Workers' Compensation Court trial judge found that Zavala had sustained a 50-percent loss of earning capacity and awarded her a 2-percent permanent partial impairment status for her right upper extremity as well as vocational rehabilitation benefits. After Zavala's appeal to a review panel of the Workers' Compensation Court, the trial judge's award was affirmed in all respects except that the award of vocational rehabilitation was eliminated. Zavala appeals.

FACTUAL BACKGROUND

Zavala came to the United States in 1984 and worked for several months doing assembly line work. She was then employed for 6 years in a factory putting together parts for airplanes. She first became employed by ConAgra at its Monfort plant in Grand Island, Nebraska, in November 1995, when she worked for 6 months in the deboning department. She subsequently left her employment at ConAgra and worked for a turkey company in Gibbon, Nebraska, and then returned to ConAgra's Monfort plant in July 1997. On October 18, 1999, Zavala reported that while working in her position as a head trimmer, she picked up a heavy cow's head to throw it in a basket. At that time, she felt pain in her neck and right shoulder.

Zavala's physician was Dr. Frank Lesiak, an orthopedic surgeon in Grand Island, who saw her for the first time on October 20, 1999. Zavala presented a chief complaint at that time of right shoulder and neck pain. After examination and a diagnostic workup, Dr. Lesiak diagnosed Zavala with narrowing of the C4-5 cervical disk area with encroachment of the neuroforamina and found that she had similar disease at the C3-4 level. He also diagnosed subscapular bursitis and myositis of the right shoulder.

Summarizing her medical treatment, we observe in the record that Zavala continued to see Dr. Lesiak, who imposed work restrictions on her and prescribed medication—first Vioxx and then Celebrex—and specialized physical therapy. By December 15, 1999, Dr. Lesiak felt that Zavala was at the point where a "Key Functional Assessment" should be done and that she should go back to a job that she could do given her diagnosis and limitations. The functional assessment was done, but it was considered to be "invalid" and not representative of her current physical capabilities because of "demonstrated inconsistencies," meaning, according to the examiner, that Zavala had attempted to manipulate the results. While there are extensive medical records in the evidence, it does not appear that the nature or extent of Zavala's medical treatment is in controversy, and therefore, we will not further detail that evidence.

By January 2000, Zavala had returned to work for ConAgra and initially was working at a job called "steam-vac," which involved vacuuming beef carcasses in an attempt to eliminate foreign objects such as hair or dust. Zavala had complained about her ability to do this job, saying that she was reaching too much, which caused problems in her shoulders and around her neck area. As a result, her job was changed after consultation with plant supervisory personnel. She was moved to a job that involved 4 hours of hanging tails and hearts and 4 hours of scraping tongues. The evidence revealed that part of the purpose of switching tasks within her workday was for her to use different muscles for different parts of her shift. Zavala was working a full 8-hour day in this task-switching position, which was a permanent job.

Dr. Lesiak ultimately rendered an opinion that Zavala had sustained permanent impairment of 5 percent to the cervical spine and 2 percent to the right upper extremity, but he concluded that these were not the results of separate injuries and were both caused by the incident of October 18,1999.

Zavala's job with ConAgra ended as a result of an altercation with a coworker. In this incident, the coworker rubbed Zavala's posterior with a cow's tongue. Zavala threatened to report the coworker to the supervisor if he did not stop, but Zavala said he only laughed at her. While she claims she intended merely to hit him with her meathook, Zavala swung at him with the hand holding her knife. In any event, the coworker sustained a significant injury to his arm: A piece of flesh approximately 21/2 by 2 inches was cut from his forearm, resulting in profuse bleeding. As a result of the incident, both Zavala and the coworker were fired.

During the approximately 4 months when Zavala was doing the job alternating between hanging tails and hearts and scraping tongues, she never missed work due to any injury, never saw a doctor, and never made ConAgra's management personnel, including the safety manager, aware that she was having any trouble doing her job. After Zavala's termination of employment, she told a vocational rehabilitation counselor that she liked her job, and she did not indicate that she was unable to perform it at the time of her termination, although her trial testimony was to the contrary. Cory Mollak, a supervisor, testified that he spent a considerable amount of time on the plant floor and that whenever he saw Zavala, she seemed cheerful, never reported discomfort or had complaints, and, as far as he knew, could physically perform the job. Mollak also testified that between January 2000 and Zavala's termination of employment because of the altercation with the coworker, Zavala seemed happy working every time he observed her on the floor and was doing the work well without difficulty.

A vocational rehabilitation counselor, Gayle Hope, was appointed by the Workers' Compensation Court to make an assessment of Zavala's loss of earning capacity. Hope's extensive report is in evidence. ConAgra used Deborah Determan as its vocational rehabilitation counselor, and her extensive report is likewise in evidence. We shall detail the evidence concerning vocational rehabilitation and loss of earning capacity in the analysis section of our opinion.

TRIAL COURT DECISION

The trial court found that on October 18, 1999, while engaged in her employment, Zavala injured her right shoulder and neck as a result of lifting a cow's head. As a consequence, the court found that she had sustained a 50-percent loss of earning capacity and a 2-percent permanent partial disability to her right arm. The trial judge made a specific finding that Zavala was unable to perform work for which she had previous training or experience and that therefore, she was entitled to vocational rehabilitation services. The trial judge recounted in some detail the medical evidence, including that dealing with causation. The trial judge also found that Zavala's employment was terminated following the incident of horseplay and the injury to a coworker. The court stated:

It is the court's opinion [that] but for her termination, [Zavala] could have continued to perform the work of the position in which she was placed. Corey [sic] Mollak testified to the demands of the job and they are well within the most conservative reading of [Zavala's] restrictions.

The trial judge rejected the contention that Zavala was permanently and totally disabled, citing the basic opinions of both Hope and Determan and finding that Hope's opinion that Zavala was limited to being an odd-lot worker had been rebutted. At least by implication, the trial judge was critical of the fact that Hope had "considered both [Zavala's] restrictions to the body as a whole and right upper extremity in formulating her opinion that [Zavala] is an odd-lot worker." For convenience, we shall refer to the combining of member and nonmember impairments to determine loss of earning capacity as "stacking."

The trial judge does not specifically opine whether stacking of injuries is legally permissible. However, the implication, including the reliance upon Determan's report criticizing Hope's methodology, suggests that the trial judge's position is that such stacking is improper. Nonetheless, the trial judge specifically found, in determining whether Hope's opinion had been rebutted, that the fact that Zavala "successfully worked for four months in a light duty position with [ConAgra] in and of itself shows that she is not an odd-lot worker." The trial judge concluded that Zavala had sustained a 50-percent loss of earning capacity, but she ordered vocational rehabilitation, specifically an "English as a Second Language" program. Zavala filed an application for review.

REVIEW PANEL DECISION

Zavala's first assignment of error before the review panel of the Workers' Compensation Court was that the trial court erred in failing to combine the scheduled member impairment and the whole body injury so as to find her permanently and totally disabled. Indicating that any "philosophical inclination" on the review panel's part that the scheduled and unscheduled injuries could be combined would not supersede the Workers' Compensation Court's purely statutory authority, the review panel found that it could not deviate from the dictates of Neb.Rev.Stat. § 48-121(3) (Cum.Supp.2000) because such statute was silent on the matter. The review panel concluded that without specific statutory authority from the Nebraska Unicameral, the Workers' Compensation Court could not combine such injuries to determine permanent and total disability. The review panel rejected all of Zavala's assignments of error. With respect to ConAgra's cross-appeal regarding vocational rehabilitation, the review...