86-095 I IN THE SUPREME COURT OF NEBRASKA o GLENN BENDER, vs» Plaintiff-Appellee, NORFOLK IRON & METAL COMPANY, APPEAL FROM THE NEBRASKA WORKMEN'S COMPENSATION COURT Judge Ted W. Vrana Judge Mark A. Buchholz Judge Paul E. LeClair o o Defendant-Appellant. BRIEF OF APPELLANT o SUPREME COURT OF NEBRASKA BY: OF: Lynn A. Melson Walter E. Zink II BAYLOR, EVNEN, CURTISS, GRIMIT & WITT 1200 American Charter Center Lincoln, Nebraska 68508 (402)475-1075 JUN 2? 1986
i INDEX Subject Index Pages Statement of the Case 1 Assignments of Error 2 Propositions of Law 3 Statement of Facts 4 Argument: I. WHERE PLAINTIFF HAS NOT PROVEN EACH OF THE INDISPENSABLE ELEMENTS OF HIS CLAIM BY A PREPONDERANCE OF THE EVIDENCE HE IS NOT ENTITLED TO AN AWARD OF COMPENSATION.... 7 A. THE CLAIMANT'S OWN TESTIMONY, TOGETHER WITH THE MEDICAL TESTIMONY AND RECORDS, FAIL TO SUPPORT ANY CAUSAL RELATIONSHIP BETWEEN CLAIMANT'S SUBJECTIVE SYMPTOMS OF PAIN, AND THE ACCIDENT OF OCTOBER 31, 1984 8 II. WHERE A VOCATIONAL PLAN IS BASED UPON AN EMPLOYEE'S PHYSICAL COMPLAINTS WHICH MAY NOT RESULT IN A PERMANENT DISABILITY AND WHERE THE EMPLOYEE MAY BE ABLE TO RETURN TO WORK FOR WHICH HE HAS PREVIOUS TRAINING AND EXPERIENCE HE IS NOT ENTITLED TO VOCATIONAL REHABILITATION SERVICES... 12 Conclusion 13 CASES CITED Aldrich v. ASARCO, Inc., 221 Neb. 126, 375 N. W. 2d 150 (1985) 11 Caradori v. Frontier Airlines, Inc., 213 Neb. 513, 329 N. W. 2d 865 (1983) 11, 12 Husted v. Peter Kiewit & Sons Construction Co., 210 Neb. 109, 313 N.W.2d 248, 250 (1981)... 11 Klentz v. TransAmerican Freightliners, Inc., 173 Neb. 53, 112 N.W.2d 405 (1961).. 9
ii Mack v. Dale Electronics, Inc., 209 Neb. 367, 307 N. W. 2d 814 (1981) 9 Oline v. Nebraska Natural Gas Co., 177 Neb. 851, 131 N.W.2d 410 (1964) 7 Parrish v. Karlkehm, 186 Neb. 252, 182 N.W.2d 422 (1970) 7 Pocevicius v. Armour Co., 185 Neb. 668, 178 N.W.2d 265 (1970) 7 Powell v. W. G. Pauley Lumber Co., 217 Neb. 707, 709-10, 350 N.W.2d 556, 558 (1984) 9 Pruitt v. McMaken Transportation Co., 175 Neb. 477, 122 N.W.2d 236 (1936) 8 Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724, 7, 9 726 (1962) Welke v. City of Ainsworth, 179 Neb. 496, 138 N. W. 2d 808 (1965) 7 Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N. W. 2d 377 (1963) 8 STATUTES CITED Neb. Rev. Stat. Section 48-151(2) (Reissue 1984).. 10 Neb. Rev. Stat. Section 48-162.01 (Reissue 1984) 2, 13
STATEMENT OF THE CASE A. Nature of Litigation. This is a workmen's compensation case wherein the plaintiff seeks compensation benefits as a result of an accident occurring on October 31, 1984 at which time the plaintiff was employed by the defendant as a shearer operator. He suffered injuries to his right foot as the result of an accident when a heavy metal sheet fell on his foot. Plaintiff has since complained of pain in his right foot and alleges that the pain renders him temporarily totally disabled and entitles him to vocational rehabilitation services. An award on rehearing was entered and an appeal to this Court has followed. B. The Issues Tried Below. The following issues were tried by the Compensation Court on rehearing: 1. Whether the plaintiff continued to be temporarily totally disabled at any time after his return to work on April 15, 1985. 2. Whether the plaintiff's application for and receipt of unemployment compensation benefits after his employment with defendant terminated precludes the plaintiff from recovering further temporary total disability benefits. 3. Whether the plaintiff is entitled to an award of vocational rehabilitation. 4. The extent of plaintiff's disability. -1-
5. The compensability of certain costs and medical expenses. C. The Issues Decided Below and Judgment. On rehearing, the plaintiff was awarded benefits of $145.18 per week from November 1, 1984 to April 15, 1985 and from April 30, 1985 to November 21, 1985 for temporary total disability compensation and in addition thereto the sum of $145.18 per week for so long in the future as the plaintiff shall remain temporarily totally disabled as a result of the accident. The defendant was required to continue to provide and for such future medical and hospital care and treatment as pay may be reasonably necessary as a result of said accident and injury. The Court found that the plaintiff was unable to perform work for which he had previous training or experience and was entitled to rehabilitation services as provided in Neb. Rev. Stat. Section 48-162.01 (Reissue 1984). o ASSIGNMENTS OF ERROR The Workmen's Compensation Court on rehearing erred: 1. In finding that the plaintiff's current disability is causally related to his accident of October 31, 1984. 2. In finding that the plaintiff is entitled to vocational rehabilitation services as awarded on rehearing. o -2-
PROPOSITIONS OF LAW I. WHERE PLAINTIFF HAS NOT PROVEN EACH OF THE INDISPENSABLE ELEMENTS OF HIS CLAIM BY A PREPONDERANCE OF THE EVIDENCE HE IS NOT ENTITLED TO AN AWARD OF COMPENSATION. Parrish v. Karlkehm, 186 Neb. 252, 182 N.W.2d 422 (1970) Smith v. Stevens, 173 Neb. 723, 114 N.W.2d 724, 726 (1962) Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965) Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963) A. THE CLAIMANT'S OWN TESTIMONY, TOGETHER WITH THE MEDICAL TESTIMONY AND RECORDS FAIL TO SUPPORT ANY CAUSAL RELATIONSHIP BETWEEN CLAIMANT'S SUBJECTIVE SYMPTOMS OF PAIN, AND THE ACCIDENT OF OCTOBER 31, 1984. Caradori v. Frontier Airlines, Inc., 213 Neb. 513, 329 N.W.2d 865 (1983) Husted v. Peter Kiewit & Sons Construction Co., 210 Neb. 109, 313 N.W.2d 248, 250 (1981) Mack v. Dale Electronics, Inc.. 209 Neb. 367, 307 N.W.2d 814 (1981) Powell v. W. G. Pauley Lumber Co.. 217 Neb. 707, 709-10, 350 N.W.2d 556, 558 (1984) Neb. Rev. Stat. Section 48-151(2) (Reissue 1984) II. WHERE A VOCATIONAL PLAN IS BASED UPON AN EMPLOYEE'S PHYSICAL COMPLAINTS WHICH MAY NOT RESULT IN A PERMANENT DISABILITY AND WHERE THE EMPLOYEE CAN RETURN TO WORK FOR WHICH HE HAS PREVIOUS TRAINING AND EXPERIENCE HE IS NOT ENTITLED TO VOCATIONAL REHABILITATION SERVICES. Neb. Rev. Stat. Section 48-162.01 (Reissue 1984) -3-
STATEMENT OF FACTS On October 31, 1984, the appellee Glen Bender, suffered an injury to his right foot as a result of an accident arising out of and in the course of his employment with Norfolk Iron & Metal Company. At the time of the accident, appellee was employed as a shearer and breaker operator. (3:1). He was assisting in cutting a large piece of metal when it fell on the toes of his right foot. (3:12-21). He received medical care from Dr. Henkel and returned to work, upon the advice of his doctor, on April 15, 1985. (4:4-18). On his return to work at Norfolk Iron & Metal Company, Mr. Bender worked full-time for about two weeks as an overhead crane operator. (5:5-8, 10:12-18). The appellee and his employer then had a dispute about a personal loan and the appellee, Bender, left the employ of Norfolk Iron & Metal Company on approximately April 29, 1985. (10:19-11:2). Appellee then applied for unemployment compensation benefits and received them for three or four months. (11:6, 11:19-21). During that period of time, the appellee looked for work as a truck driver and in the field of auto repair mechanics and thought these were the types of jobs that he might be able to do. (12:1-10). The appellee testified that, although he could not lift anything heavy or engage in any weight bearing on his foot for any length of time, he could work from a sitting position or a less active position for his foot. (9:15-10:5). -4-
Mr. Bender continued to see Dr. Henkel and was referred by him to Dr. Frost. (6:8-14). Dr. Dwight M. Frost of the Immanuel Rshobilitstion C6n16r i.n Omaha first saw the sppsllsg on June 26, 1985. (El,5). Dr. Frost examined the appellee's right foot and took x-rays of the injured area. (El,5-6). At that time, Dr. Frost prescribed a physical therapy program at the Lutheran Hospital of Norfolk and provided the appellee with axillary crutches and a prescription for Motrin. The appellee was reexamined on July 17, 1985 by Dr. Frost. (El,8). He recommended that the appellee continue the medication, the of the crutches and his physical therapy program and also use sent him to the Missouri Valley Orthotic & Prosthetic Center in Omaha where they fabricated a plastic insert support for the right shoe. The next reexamination of the appellee occurred on July 24, 1985 at which time Dr. Frost began to suspect that the appellee had a sympathetic dystrophy or a reflex persistence of pain. (El,9-10). He recommended finding a method to interrupt the pain cycle caused by the autonomic system, for example, a sphenopalatine ganglion block. (El,13). Dr. Frost testified that when he initially saw Mr. Bender on June 26, 1985, he had fractures of the second, third and fourth toes and the big toe. (El,18). Dr. Frost also testified that the great or big toe was healed long before the reexamination of August 21, 1985, that it was his opinion that -5-
as of August 21, 1985, all fractures had probably reached maximum improvement, and that by the time of his deposition on November 13, 1985, the fractures had completely healed. (El,21). Dr. Frost also testified that the appellee's autonomic condition limited his mobility and that the had not reached maximum improvement of the autonomic appellee condition or sympathetic dystrophy as of the time of the November 13, 1985 deposition. (El,16-17). Dr. Frost was unable to make any determination of permanent partial disability and stated that the likelihood of the claimant's ability to return to his prior employment depended on the success of the treatment for the pain. (El,17). The only medical evidence submitted by appellee is from Dr. Frost. Nowhere in the medical evidence submitted is there any indication that the alleged pain suffered by the appellee and any resulting disability therefrom is causally related to the accident and injury of October 31, 1984. Indeed, nowhere in the record is there any medical evidence to establish the plaintiff's fractured toes on his right foot were caused by the accident of October 31, 1984. (El,5:17-7:4). o -6-
ARGUMENT I. WHERE PLAINTIFF HAS NOT PROVEN EACH OF THE INDISPENSABLE ELEMENTS OF HIS CLAIM BY A PREPONDERANCE OF THE EVIDENCE HE IS NOT ENTITLED TO AN AWARD OF COMPENSATION. Nebraska adheres to the rule that plaintiff must show a causal connection between the accident suffered by him and the alleged disability. Smith v. Stevens. 173 Neb. 723, 114 N.W.2d 724 (1962). Under this doctrine, the appellee is required to show with reasonable certainty that the alleged injury occurred, and that it was caused by an accident arising out of and in the course of the claimant's employment. Since the claimant has the burden of demonstrating that his case falls under the Workmen's Compensation Act, he must offer proof which preponderates in his favor on each of the indispensable elements of his claim. Pocevicius v. Armour Co., 185 Neb. 668, 178 N.W.2d 265 (1970); Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808 (1965). If the claimant has not proven each of the essential elements by a preponderance of the evidence he is not entitled to recovery. To this end, this Court has consistently held that although a rule of liberal construction exists with respect to workmen's compensation, this rule applies to the law, and not to the evidence offered to support a claim. See, Parrish v. Karlkehm, 186 Neb. 252, 182 N.W.2d 422 (1970); Oline v. Nebraska Natural Gas Co., 177 Neb. 851, 131 N.W.2d 410 (1964). Since the rule of liberal construction is held to apply only to the law, it does not dispense with the necessity that the claimant prove -7-
his right to compensation within the rules required by the Compensation Act. Nor does it permit a court to award compensation where the requisite proof is lacking. Wheeler v. Northwestern Metal Co., 175 Neb. 841, 124 N.W.2d 377 (1963); Pruitt v. McMaken Transportation Co., 175 Neb. 477, 122 N.W.2d 236 (1936). In the instant case the plaintiff seeks compensation for an injury and resultant disability which he contends is completely attributable to an accident which occurred on October 31, 1984, while he was working in the employ of the defendant. In the context of plaintiff's case, he must establish that his injuries occurred as a result of an accident within the meaning of the Compensation Act; that he suffers a residual, permanent disability as a result of the accident and injury; and that there is a casual relation between the injury, his employment, and his disability. Additionally, since plaintiff seeks benefits for vocational rehabilitation, he is required to demonstrate that he is unable to perform work for which he has previous training or experience as a result of his injury, or that he has suffered a reduction in earning power that may be remedied by job retraining. The plaintiff, clearly, has not met his burden with respect to any of these essential elements. A. THE CLAIMANT'S OWN TESTIMONY, TOGETHER WITH THE MEDICAL TESTIMONY AND RECORDS, FAIL TO SUPPORT ANY CAUSAL RELATIONSHIP BETWEEN CLAIMANT'S SUBJECTIVE SYMPTOMS OF PAIN, AND THE ACCIDENT OF OCTOBER 31, 1984. It is apparent that the plaintiff has failed to establish -8-
by a preponderance of the evidence the requisite medical causation between his alleged accident and any disability. Smith v. Stevens, supra. The general rule in Nebraska when an employee is claiming benefits for a subjective condition, as in the case at bar, is as follows: Where the claimed injuries are of such a character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science. Such a question must necessarily be determined from the testimony of skilled professional persons and cannot be determined from the testimony of unskilled witnesses having no scientific knowledge of such injury. An employee must show by competent medical testimony a causal connection between the alleged injury, the employment and the disability. Mack v. Dale Electronics, Inc.. 209 Neb. 367, 307 N.W.2d 814 (1981). This rule was stated more recently in Powell v. W. G. Pauley Lumber Co., 217 Neb. 707, 709-10, 350 N.W.2d 556, 558 (1984) as follows: [W]here the injury is not of an objective nature, a causal connection between the accident and the disability must be established by expert medical testimony (citations omitted). For medical testimony to be the basis for an award, it must be sufficiently definite and certain that a conclusion can be drawn that there was a causal connection.... (citations omitted) (emphasis added) In addition, it is well-established in Nebraska that a workmen's compensation claim cannot be based on possibility speculation, and if an inference favorable to the claimant or can only be reached on the basis thereof, then he cannot recover. Klentz v. TransAmerican Freightliners, Inc., 173 Neb. 53, 112 N.W.2d 405 (1961). -9-
The parties stipulated that on October 31, 1984, while in the employ of the defendant, plaintiff had an accident to his right foot arising out of and in the course of his employment. However, nowhere in the record is there any medical evidence to establish that plaintiff's fractured toes on his right foot were caused by the accident. (El,5:17-7:4). Further complicating the situation is the fact that by July 24, 1985, Dr. Frost felt the plaintiff might have a sympathetic dystrophy (El,9:18-10:5). Not only is Dr. Frost's diagnosis tentative at best a sympathetic dystrophy was "suspected" but there is absolutely no expert medical evidence which causally related this subjective condition to plaintiff's right toe injuries. Neb. Rev. Stat. Section 48-151(2) (Reissue 1984) specifically mandates that:... The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment. (emphasis added) Absent any presumption the employee has failed to adduce any expert medical testimony causally relating his purported disability to his accident of October 31, 1984. Dr. Frost conceded that as of August 21, 1985, the right toe fractures had either reached maximum improvement or nearly so. In any event, maximum healing of the toe fractures had occurred by the time of his deposition on November 13, 1985 (El,20:24-12). Even assuming that there existed sufficient -10-
evidence to causally relate the toe fractures to plaintiff's accident, maximum healing of those fractures had occurred by November 13, 1985 at the latest and any entitlement to temporary total disability then ceased. Aldrich v. ASARGO, Inc., 221 Neb. 126, 130, 375 N.W.2d 150 (1985). Even though the sympathetic dystrophy may require additional treatment, the plaintiff is not entitled to recover therefor as he has not shown that it was causally related to his accident. This Court in discussing the standard of review for an appeal from the Compensation Court has stated that "where there is not sufficient competent evidence in the record to warrant the making of the award, or the findings of fact do not support the award, this Court must modify, reverse or set aside the award." Husted v. Peter Kiewit & Sons Construction Co., 210 Neb. 109, 313 N.W.2d 248, 250 (1981). Husted, supra, held that a doctor's opinion that it was "more likely" the injury occurred on one date rather than another was insufficient testimony on which to find causation. The issue of sufficient medical causation was also adduced in Caradori v. Frontier Airlines, Inc., 213 Neb. 513, 329 N.W.2d 865 (1983). Wherein this Court found that the employee did suffer from the effects of a cervical sprain with attendant pain, but that she had not sustained her burden of proof by merely showing that the condition could have been caused by an accident in the course of employment. The Court found that none of the physicians stated an opinion as to whether -11-
Caradori's condition was the result of such an accident. "Whether by accident or design, counsel omitted asking expert medical opinion on causation. We drg not free to retry cases on appeal, or to speculate on the answers treating physicians might have given to questions not asked." Id. at 867. The Court then reversed the Compensation Court's award. Since the defendant has paid to plaintiff temporary disability until he returned to work on April 15, 1985, it total has then fully discharged its obligation in accordance with the compensation laws. Accordingly, the award should be reversed and the cause dismissed. II. WHERE A VOCATIONAL PLAN IS BASED UPON AN EMPLOYEE'S PHYSICAL COMPLAINTS WHICH MAY NOT RESULT IN A PERMANENT DISABILITY AND WHERE THE EMPLOYEE MAY BE ABLE TO RETURN TO WORK FOR WHICH HE HAS PREVIOUS TRAINING AND EXPERIENCE HE IS NOT ENTITLED TO VOCATIONAL REHABILITATION SERVICES. The plaintiff's claim for vocational rehabilitation benefits is not warranted for two reasons. First, the plaintiff testified that he returned to work at Norfolk Iron & Metal Company on April 15, 1985, as an overhead crane operator and left that job because of a personal dispute. He also testified that he then applied for and received unemployment compensation benefits at the Norfolk Job Services Office. He admitted that, during the period in which he received unemployment compensation benefits, he actively sought employment as a truck driver and in the field of auto repair mechanics and that those were the types of jobs that he might be able to do if he did not have to spend long periods of time -12-
on his foot (12:1-10). Dr. Frost also testified that Bender was physically capable of performing sedentary work. (El,19:23-20:2). The record, therefore, shows that claimant was able to perform work for which he had previous training or experience and was not entitled to vocational rehabilitation services as provided for at Neb. Rev. Stat. Section 48-162.01(3) (Reissue 1984). As stated at Neb. Rev. Stat. Section 48-162.01(6) (Reissue 1984), vocational rehabilitation can be ordered only where, among other things, the employee "is entitled to compensation for total or partial disability which is or is likely to be permanent.... "As previously stated, the appellee has failed to meet his burden of establishing the medical causation necessary for compensation. Furthermore, the only mention of permanent disability in the record appears in the deposition of the claimant's physician, Dr. Frost, who in fact stated that he could not make a determination as to permanent partial disability. (El,17:17-20). Dr. Frost added that "if this individual is successful in responding to his treatment for the pain, the likelihood of his being able to return to the job that he once had is good." (El,17:22-25). The award of vocational rehabilitation by the Compensation Court was thus both premature and contrary to the evidence. CONCLUSION Appellant respectfully submits that the Compensation Court on rehearing was clearly wrong in finding that the appellee's -13-
"suspected" sympathetic dystrophy and any disability which may have resulted was causally related to his accident of October 31, 1984 and in finding that the appellee was entitled to vocational rehabilitation services. There is simply no expert medical evidence in the record to warrant the making of the award. Appellee failed to submit any expert medical testimony which causally relates his purported disability to his accident. Appellee also failed to establish his entitlement to vocational rehabilitation. There is absolutely no evidence that appellee was permanently disabled or that, absent his subjective complaints of pain, appellee was unable to perform work for which he had training or experience. Appellant asks that the award be reversed and the appellee's Petition be dismissed. Respectfully submitted, NORFOLK IRON & METAL COMPANY, Defendant-Appellant By: Of: LYNN A. MELSON WALTER E. ZINK II BAYLOR, EVNEN, CURTISS, GRIMIT & WITT 1200 American Charter Center Lincoln, Nebraska 68508 (402)475-1075 -14-