Hormel Foods Denies Injured Employee, Putnam Law Wins at Trial

Hormel Foods Corporation denied medical and indemnity benefits for Mr. Rodriguez after he suffered a fractured neck while moving pallets at Hormel. The case went to trial and the judge ordered Hormel to reimburse Mr. Rodriguez for medical expenses incurred, paid for lost time during surgery and compensated for his permanent injury.

IN THE NEBRASKA WORKERS’ COMPENSATION COURT

JOSE A. RODRIGUEZ,

Plaintiff,

vs. HORMEL FOODS CORPORATION,

Defendant.

DOC: 210 NO:1298

AWARD

APPEARANCES:
Plaintiff: Jeffrey F. Putnam
Attorney at Law
Putnam Law, PC, LLO PC
6790 Grover Street, Suite 250
Omaha, NE 68106-3612

Defendant: Jenny L. Panko
Attorney at Law
Baylor, Evnen, Curtiss, Grimit & Witt
Wells Fargo Center
1248 ‘O’ Street, Suite 600
Lincoln, NE 68508

This cause came on for hearing before the Nebraska Workers’ Compensation Court at Fremont, Dodge County, Nebraska, on May 10, 2011, upon the petition of the plaintiff, answer of the defendant and on the evidence, Judge Ronald L. Brown, one of the judges of said court, presiding. Plaintiff appeared in person and was represented by counsel. Defendant was represented by counsel. Testimony was taken, evidence adduced, and the cause submitted. The Court received Exhibits 1 through 26. The parties entered into stipulations as indicated on the record.

I.

On April 13, 2010, the plaintiff was in the employ of the defendant as a laborer, and while so employed and on said date and while engaged in the duties of his employment he suffered injuries to his neck as a result of an accident arising out of and in the course of his employment by the defendant when the plaintiff was pulling pallets and boxes and felt a pop or crack in his neck which was later diagnosed as a fracture of the C6 spinous process with complete subluxation (E4, p. 3). The medical causation opinions are at Exhibit 4, pages 4, 12 and 14 and Exhibit 6, pages 1 and 5.

II.

The plaintiff is entitled to benefits as provided under the Nebraska Workers’ Compensation Act.

III.

At the time of said accident and injury, the plaintiff was receiving an average weekly wage of $600.46 per week being sufficient to entitle him to benefits of $400.31 per week from April 14, 2010, through November 14, 2010, a period of 30 5/7 weeks for temporary total disability and thereafter and in addition thereto the sum of $80.06 per week for the remainder of 300 weeks for a 20 percent permanent loss of earning power. The parties contested several issues including the occurrence of an accident. Mr. Rodriguez indicated on the date of accident he advised his foreman he “couldn’t breathe”, had pain in his left shoulder/neck/anterior chest, went to the nurse’s station and went home early. His supervisor acknowledged that plaintiff reported trouble breathing but had no conversation about an injury at work. Company records do not confirm he was treated at the company infirmary that date. Mr. Rodriguez went to the Fremont Area Medical Center emergency room the evening of April 14, 2010. The attending physician diagnosed “chestwall/cervical radiculopathy”, restricted use of the left upper extremity for 4 to 5 days and commented regarding “cervical radiculopathy symptoms – .”, the remaining comments being illegible (E2, p. 8). He was referred to Dr. David Buck, who he had previously seen, and was examined April 20, 2010, for neck and shoulder symptoms, but “cannot recall any injury.” (E3, p. 1). However, x-rays obtained by Dr. Buck disclosed the cervical spinous fracture. He was referred to Nebraska Spine Center and was seen there May 20, 2010. The history in part is as follows: “The injury occurred while working at place of employment, no clearly defined precipitating factor for the pain. He was at work pulling boxes when he felt a pop/snap in his neck. Did not have any injury.” (E4, p. 1). The history frankly is somewhat confusing. In one instance he seems to clearly indicate an accident at work but in the next, no injury. Part of his may be attributable to the fact that there is a language barrier. Plaintiff speaks and understands some English but cannot read or write the language. English is his second language. The Court notes that when seen at Nebraska Spine Center, a family member was interpreting. Dr. Buck’s note of April 20, 2010, does not mention an interpreter. Dr. Burd clearly and consistently believed the injury was causally related to an accident and indicated so in his chart and reports. Defendant also denied any notice of an alleged injury at work until receiving Mr. Putnam’s letter of representation dated June 2, 2010. However, review of the records indicates Dr. Buck copied Medcor (a contractor which operates Hormel’s infirmary) with his clinical note of April 20, 2010 (E3, p. 2). Dr. Burd’s clinical note of May 20, 2010, indicated he would call Bob Ball to discuss his findings. His clinical note of May 20, 2010, was copied to Bob Ball (E4, p. 4). Dr. Burd’s telephonic nurse’s note of May 25, 2010, indicated “spoke to Bob Ball, Hormel. Patient keeps stating that this is a work comp injury, Bob stated that a claim was never filed.” (E4, p. 13). Further, Nebraska Spine’s initial consultation of May 20, 2010, indicated “**work comp has denied the claim.” (E4, p. 1). Obviously, a claim must be reported before it can be denied. Thus, it appears there were at least four occasions that the claim of an injury was reported to defendant or its agent before receipt of Mr. Putnam’s letter. Mr. Rodriguez has returned to work to his former position. He indicated he now pulls single boxes rather than two at a time. He experiences soreness and fatigue in his neck area now by the end of his shift. He takes over-the-counter medication for his symptoms. He does not believe he could return to some of the jobs in the plant he previously performed. His testimony was credible and when combined with the permanent impairment rating and considered in context with the criteria of Sidel v. Travelers Insurance Company, 205 Neb. 541, 288 N.W.2d 482 (1980), caused the Court to determine permanent loss of earning power as indicated.

IV.

The defendant shall pay medical expenses on behalf of the plaintiff as follows:

* Fee schedule audit amounts approved by the court.  Mileage reimbursement to plaintiff of $158.50.  There was no sufficient evidence that plaintiff will require future medical care for the injury sustained April 3, 2010.

V.

Plaintiff has returned to suitable employment with defendant and is therefore not entitled to vocational rehabilitation services.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that:

1. Defendant pay indemnity and future indemnity as provided in paragraph III.
2. Defendant pay medical expenses as provided in paragraph IV.

Dated at Lincoln, Lancaster County, Nebraska, on this 20th day of May, 2011.
NEBRASKA WORKERS’ COMPENSATION COURT

/s/Ronald L. Brown
JUDGE