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Increase in Benefits on Appeal: Ira v. Regal Printing

The plaintiff suffered work-related injuries that resulted in temporary total disability, long-term pain, physical limitations, and depression. An initial ruling failed to accurately understand the care coverage of the primary treating physician and therefore did not properly assign the full cost of medical expenses to the employer. The decision was remanded in part and the employer was ordered to pay the remaining medical expense.

Ira v. Regal Printing

IN THE NEBRASKA WORKERS’ COMPENSATION COURT
FRED IRA, Plaintiff, vs. REGAL PRINTING, Defendant.
DOC: 206 NO: 1919
ORDER OF REMAND, IN PART, AND AFFIRMANCE, IN PART

This matter came on for a review hearing before the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on April 1, 2008, on the Application for Review of the defendant filed November 15, 2007, alleging error in the Award entered on November 1, 2007, by Judge James R. Coe. A cross-appeal contained within the brief of Appellee is also considered along with oral arguments and written briefs of both parties. The review panel, being fully advised in the premises, finds as follows.

I.

Defendant assigns as error, the trial Court’s findings of temporary total disability benefits, and permanent total disability benefits as well as alleging error in the trial Court’s failure to satisfy Rule 11 of the Nebraska Workers’ Compensation Court with respect to failing to specify the evidence relied upon in making findings relating to plaintiff’s permanent and total disability.

Plaintiff’s cross-appeal alleges error in the trial Court’s failure to order payment of certain medical bills.

II.

The first issue to be addressed is defendant’s argument that the trial Court committed error in awarding temporary total disability for the period of time from and including October 7, 2002, to and including November 24, 2003. Defendant argues that for certain periods of time therein, plaintiff was working for defendant on a light duty basis, was receiving wages, and was temporarily partially disabled.

Uncontradicted evidence does exist which supports this argument. Plaintiff testified that he did return to work part time sometime in April, 2003, and stopped working for defendant in August, 2003. Defendant offered, and the Court received into evidence without objection, Exhibit 28, which is a summary of benefits paid. This exhibit contains evidence that defendant paid to plaintiff temporary partial disability benefits in the amount of $1,718.04, for the period of time from April 23, 2003 through August 25, 2003.

With respect to total disability, the Nebraska Supreme Court has stated that:

A worker who, because of his injury, is unable to perform or obtain any substantial amount of labor, either in his particular line of work, or in any other for which he would be fitted except for the injury, is totally disabled.

McDonald v. Lincoln U-Cart Concrete Co., 232 Neb. 960, 442 N.W.2d 892 (1989).

Another definition also cited by the Nebraska Supreme Court is that:

Total disability under the workers’ compensation law means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality and attainments could do.

Kleiva v. Paradise Landscapes, 230 Neb. 234, 430 N.W.2d 550 (1988).

Under these definitions, the trial Court committed clear error by awarding plaintiff temporary total disability benefits for the entire period of time from and including October 7, 2002, to and including November 24, 2003. This matter is remanded for specific findings with respect to the periods of time when plaintiff was entitled to temporary partial disability during this time period.

III.

We next take up the claimed errors in the trial Court’s finding that plaintiff was permanently and totally disabled and in failing to comply with Rule 11 of the Nebraska Workers’ Compensation Court in doing so.

Rule 11 of the Nebraska Workers’ Compensation Court provides:

Meaningful Review. Decisions of the court on original hearing shall provide the basis for a meaningful appellate review. The judge shall specify the evidence upon which the judge relies.”

(Effective date December 13, 2006.)

Meaningful review means that the appellate court can tell what the judge decided and why the decision was made, so the reviewing body can determine whether error was made. In this case, the trial judge set forth sufficient evidence to provide for meaningful review. The trial judge discussed various aspects of different medical evidence with respect to the pain plaintiff suffered because of his back injury, as well as the depression associated with the pain and physical limitations arising out of the accident. Ultimately, the Court placed greater emphasis on some opinions over others and made the finding that:

The Court finds that the plaintiff is five years since the date of the accident and due to the long term effects of that accident which include the physical injury, physical limitations, pain and depression together with the various physical restrictions of sedentary to light duty employment that the plaintiff is essentially an odd lot employee and unable to be employed in a competitive work environment and is permanently and totally disabled (T8).

This finding is supported by the facts and when taken together with the judge’s detailed discussion of various medical evidence in the record, does provide the basis for meaningful review.

Although the trial Court does not specifically state that the rebuttable presumption given to the report of the court-approved vocational rehabilitation expert was in fact rebutted, such finding is implicit in the context of the Court’s discussion. The counselor’s report setting forth the opinion that plaintiff suffered a 30 percent loss of earning capacity is dated February 12, 2004. Plaintiff first saw Dr. Nitcher for treatment of depression in September 2004. It was not until October 20, 2004, when Dr. Nitcher, a psychiatrist, opined that plaintiff was unable to be employed due to depression from the pain and physical limitations of the accident. Obviously, the court-approved vocational rehabilitation expert could not have taken such opinion into consideration, which the trial Court did. There is sufficient factual support for the Court’s implicit rejection of the rebuttable presumption that plaintiff had a 30 percent loss of earning capacity, and for the Court’s factual determination that plaintiff was permanently and totally disabled. These two assignments of error are without merit.

IV.

The final assignment of error is in the cross-appeal contained in plaintiff’s brief which asserts that the trial Court committed error in not ordering payment of $1,035.00 for treatment at Anesthesia Professionals, P. C., by Dr. Edwards.

The trial Court’s denial of the claimed expense in the amount of $1,035.00, was because:

The Court declines to award payment of this amount because the defendant had previously agreed to Dr. Edwards under a temporary plan of treatment and advised plaintiff that this plan had concluded and would no longer pay for Dr. Edwards’ treatment (T7).

Plaintiff received treatment by Dr. Edwards from June 14, 2006, through September 4, 2007. At the same time plaintiff was receiving medical management care in the nature of a check-up every six months by Dr. Anderson who treated plaintiff from February 21, 2003, through December 18, 2006. There is no evidence in the record that Dr. Anderson referred plaintiff to Dr. Edwards.

There is uncontradicted evidence in the record that defendant agreed to plaintiff’s treatment by Dr. Edwards. In a letter dated October 26, 2006, a senior claims adjuster for defendant’s insurance carrier wrote to plaintiff’s attorney:

I agreed to try Dr. Edwards to address your client’s concerns and complaints. I never agreed to a change in physician. Since Dr. Edwards attempts at treatment have not produced any improvement in Mr. Ira’s condition, I will no longer authorize treatment through his office (Vol. III; E27, p. 1).

For the treatment by Edwards up through the time of this letter, defendant paid a total of $2,123.13 to Dr. Edwards (Anesthesia Professionals, P.C.).

However, Rule 50(C) of the Nebraska Workers’ Compensation Court states, “there can be no change in the primary treating physician unless the employee and employer agree or the compensation court orders a change.” Here, the employee and employer agreed to a change in physician. There is no provision made in the Nebraska Workers’ Compensation Court’s Act or Rules, for the employee and employer to agree to a “referral” which can only be made by the primary treating physician. Rule 50 also assures that control of choice of medical care does not unilaterally rest with either the employee or the employer.

The review panel concludes that as a matter of law, by agreement of the parties, Dr. Edwards became plaintiff’s primary treating physician and the trial Court committed clear error when denying plaintiff’s claim that defendant should pay the medical bill as shown in Exhibit 12. This holding is buttressed by the fact that Dr. Anderson’s records show that Dr. Anderson was largely unaware of the fact that Dr. Edwards was monitoring plaintiff’s medication regime on a monthly basis, when Dr. Anderson was seeing plaintiff once every six months. Judge Coe’s award is modified to the extent that defendant shall pay the unpaid medical billings for Dr. Edward’s care as reflected in Exhibit 12, in the amount of $1,035.00.

V.

Plaintiff succeeded in obtaining an increase in defendant’s obligation to pay the medical expenses outlined above and is entitled to an attorney fee of $1,000.00, and interest as allowed by law.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DEGREED that Judge Coe’s Award of November 1, 2007, is affirmed in part, and remanded, in part for the reasons outlined above.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff has obtained an increase in the award pursuant to his cross-appeal, and is entitled to an attorney fee in the amount of $1,000.00, and interest as allowed by law.

Dated at Lincoln, Lancaster County, Nebraska, on this 25th day of June, 2008.

NEBRASKA WORKERS’ COMPENSATION COURT

/s/Michael K. High
JUDGE

/s/J. Michael Fitzgerald
JUDGE

/s/John R. Hoffert
JUDGE

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