Sometimes it appears that employers just get tired of paying out claims. Unfortunately this comes at the expense of the injured worker. So what do they do? They go out and get a “second opinion” from another doctor. Frequently the second opinion will dispute the findings of the treating physician and offer a different explanation as to the nature and extent of the injury or whether or not medical treatment is reasonable and necessary. Such was the case for Ms. Sheard as her employer First Data hired a second opinion and then refused to pay full permanent partial disability benefits, and would not authorize an additional surgery which her treating doctor said was necessary. Below is the opinion of the Court following a trial.
IN THE NEBRASKA WORKERS’ COMPENSATION COURT
| BRENDA SHEARD, | ) | DOC: 210 NO: 1621 |
| ) | ||
| Plaintiff, | ) | |
| ) | ||
| vs. | ) | AWARD |
| ) | ||
| FIRST DATA RESOURCES, | ) | |
| ) | ||
| Defendant. | ) |
APPEARANCES:
Attorney at Law
Putnam Law, PC
6790 Grover St, Suite 250
Omaha, NE 68106
Defendant: Thomas D. Wulff
Thomas J. Freeman
Attorneys at Law
Wulff & Freeman LLC
209 South 19th Street, #300
Omaha, NE 68102-1705
This cause came on for hearing before the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on August 29, 2011, on 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 9. The parties entered into stipulations as indicated on the record.
I.
On October 4, 2007, the plaintiff was in the employ of the defendant as a team leader, and while so employed and on said date and while engaged in the duties of her employment she suffered injuries to her right arm as a result of an accident arising out of and in the course of her employment by the defendant when the plaintiff and other co-employees were at an off-site “team building” function at Diggs Volleyball Complex. Plaintiff was playing sand volleyball. While going for a ball she fell, her arm became entangled in the net and she hyper-rotated her arm and shoulder. Her injury was diagnosed as a comminuted right proximal humerus fracture, complete tear of the right rotator cuff and other bony disruptions of the glenohumeral joint. The causation opinions are within Exhibits 2 and 4.
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 $1,158 being sufficient to entitle her to benefits of $617 for temporary indemnity. The parties stipulated there was no unpaid temporary indemnity due through the date of trial. Dr. Charles Rosipal was the orthopedic surgeon who repaired the fracture with a locking plate and examined the plaintiff on several follow-up office visits. Dr. Rosipal opined Ms. Sheard experienced a 28 percent member impairment and was at risk for future development of secondary avascular necrosis. His opinions are set forth in a report of July 8, 2011 (E4). Defendant obtained a report of June 10, 2008, from Dr. Ian Crabb which provided a 12 percent member impairment but Dr. Crabb did not examine plaintiff and had only records through March 24, 2008 (E9). Defendant paid permanent indemnity based upon the lower impairment rating (E8). The Court is persuaded by the opinion of Dr. Rosipal, who evaluated the patient pre and post surgery and provided all aftercare. He had multiple occasions to evaluate the patient’s progress during physical therapy and discuss her symptoms and progress. The Court finds Ms. Sheard experienced a 28 percent permanent functional impairment of the right upper extremity which entitled her to permanent indemnity of $617 per week for 63 weeks from and after April 7, 2008. Defendant is entitled to credit for indemnity paid.
IV.
Defendant shall pay medical expenses on behalf of the plaintiff as follows:
| PROVIDER | AMOUNT |
| GIKK | $789.00 |
Defendant shall pay future medical expenses reasonably necessary for evaluation and treatment of plaintiff’s arm/shoulder injury, including but not limited to the procedure presently recommended by Dr. Rosipal.
Ms. Sheard experienced continuing symptoms in her right arm and shoulder for which she returned to Dr. Rosipal, who performed an injection for both diagnostic and therapeutic purposes after an ultrasound demonstrated increased fluid in the intertubercular groove. Dr. Rosipal now recommends an arthroscopic biceps tenotomy versus tenodesis (E3, p. 22). A rotator cuff repair may be necessary but he cannot make that determination until he is able to visualize the rotator cuff during the arthroscopy. While defendant obtained a contrary opinion, the Court relies upon the opinion of Dr. Rosipal regarding the necessity for future medical care.
V.
Further, vocational rehabilitation is unnecessary as plaintiff has continued accommodated employment with defendant.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that:
1. Defendant pay indemnity as provided in paragraph III.
2. Defendant pay medical expenses and future medical expenses as provided in paragraph IV.
Dated at Lincoln, Lancaster County, Nebraska, on this 28th day of October, 2011.
| NEBRASKA WORKERS’ COMPENSATION COURT |
| /s/Ronald L. Brown |
| JUDGE |
es
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Award was sent by ordinary United States mail, first class postage prepaid, on this 28thday of October, 2011, addressed as shown below, to the following:
| /s/Barb Frank/klk | |
| Clerk, Nebraska Workers’ Compensation Court | |
