Copley v. Advanced Services, Inc. ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
COPLEY V. ADVANCED SERVICES, INC.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
WINFIELD SCOTT COPLEY, JR., APPELLEE,
V.
ADVANCED SERVICES, INC., AND CORVEL INSURANCE, APPELLANTS.
Filed March 1, 2022. No. A-21-209.
Appeal from the Workers’ Compensation Court: DIRK V. BLOCK, Judge. Affirmed in part,
and in part reversed.
William J. Birkel, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for appellants.
Thomas A. Wagoner for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
PER CURIAM.
INTRODUCTION
Advanced Services, Inc., and its insurance carrier, Corvel Insurance (referred to herein
individually and collectively as “Advanced Services”), appeal from the Nebraska Workers’
Compensation Court’s award of benefits to Winfield Scott Copley, Jr., after he suffered injuries to
both his left shoulder and his left eye in the scope and course of his employment with Advanced
Services. In the award, the compensation court found that Copley’s shoulder injury had reached
maximum medical improvement and that he was entitled to an award of permanent partial
disability payments. However, the compensation court also found that Copley’s injury to his left
eye had not reached maximum medical improvement. As a result, the court ordered Advanced
Services to continue to pay to Copley temporary total disability payments until such time as the
left eye injury reached maximum medical improvement.
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On appeal, Advanced Services assigns multiple errors, including that the compensation
court erred in ordering it to pay continuing temporary total disability payments, even though one
of Copley’s injuries, the injury to his left shoulder, had reached maximum medical improvement.
Advanced Services asserts that because Copley is not entitled to temporary disability payments as
a result of his eye injury, it does not matter whether that injury has reached maximum medical
improvement. Advanced Services also assigns as error the compensation court’s determination
that Copley was permanently disabled as a result of the injury to his shoulder.
Upon our review, we affirm the award of continuing temporary disability benefits.
However, we reverse that portion of the award which specifically determined Copley’s permanent
impairment for his shoulder injury. Such determination was premature since not all of Copley’s
injuries have reached maximum medical improvement.
BACKGROUND
In November 2018, Copley worked for Advanced Services. At that time, he was assigned
to work at a lumberyard as a truckdriver. Copley’s work assignment included the loading of lumber
and construction materials onto the truck for delivery. On November 6, 2018, Copley was
operating a forklift to load pallets onto his delivery truck. The front of the forklift tipped forward
suddenly and unexpectedly and Copley was thrown into the “roll cage” of the forklift, striking the
left side of his face and his left shoulder.
Copley did not immediately seek treatment for his injuries. Instead, he continued to work,
completing his normal duties. However, on November 30, 2018, Copley was unloading heavy
boxes while at work. His left shoulder became so painful that he was no longer able to perform his
job duties. Over the next few days, Copley noticed that his left arm had turned black and blue.
On December 3, 2018, Copley visited a local emergency room, where he sought treatment
for his left shoulder. He was tentatively diagnosed as suffering from an injury to his rotator cuff
and a tear to his biceps tendon. He was referred to an orthopedic doctor for further evaluation.
Notably, Copley did not mention any injury to the left side of his face or to his left eye during this
visit to the emergency room.
On December 19, 2018, Copley was seen by Dr. L.F. Lesiak, an orthopedic surgeon. At
that time Copley reported that in addition to the accident causing a left shoulder injury, he was
experiencing blurred vision and headaches from hitting his face on the cage of the forklift. Lesiak
noted that Copley had suffered a prior rotator cuff tear and ordered an MRI of the shoulder. The
MRI confirmed the tentative diagnosis Copley received from the emergency room personnel.
According to Lesiak, Copley had “a massive chronic left rotator cuff tear” as well as a tear to his
biceps tendon. Lesiak specifically found that the rotator cuff injury was chronic in nature and
“certainly did not happen when he was injured in a forklift accident at work,” but that the biceps
tendon tear was work related. Lesiak recommended surgery to address the injuries to Copley’s left
shoulder.
Copley subsequently sought a second opinion from Dr. Brent Hood, who concurred with
Lesiak’s diagnosis and recommended surgery for the shoulder injuries. On March 27, 2019,
Copley underwent surgery performed by Hood to repair his biceps tendon and his rotator cuff.
While the surgical repair as to the biceps tendon appeared to resolve that issue, the repair as to the
rotator cuff tear was not as successful. Copley continued to suffer from pain and physical
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limitations as a result of his surgery. It was recommended that Copley undergo further surgical
intervention in the future.
On December 23, 2018, more than 1 month after the November 6 accident, Copley visited
the emergency room, seeking treatment for the first time for pain to the left side of his face and his
left eye which he attributed to the work accident. Copley indicated that he was also experiencing
frequent headaches and changes in his vision. Emergency room personnel diagnosed Copley as
suffering from multiple fractures to his face. He followed up with an ophthalmologist a few days
later, who found Copley to have “tenderness and blurred vision.” The ophthalmologist suspected
that Copley may have “optic nerve neuropathy,” and referred him to a neuro-ophthalmologist for
further evaluation. The neuro-ophthalmologist diagnosed Copley as suffering from “a 50 percent
reduction in left corneal sensation and decreased left visual field deficits.” Copley continued to
follow up with the neuro-ophthalmologist for his headaches and vision issues. The
neuro-ophthalmologist has noted a progressive increase in Copley’s visual deficits.
While Copley sought treatment for his left shoulder and left eye injuries, he continued to
work for Advanced Services, in lighter duty positions. Prior to his March 2019 shoulder surgery,
Copley continued to work at the same lumberyard, assisting other truckdrivers by loading small,
light items onto their trucks. A few weeks after the surgery, on April, 19, 2019, Copley was
released to return to work with restrictions regarding the use of his left arm. At that time, he was
assigned to work in Advanced Services’ offices. Later, he was assigned to work at a Goodwill
Store, testing electronics to determine whether they functioned properly.
In a letter dated October 25, 2019, Dr. Edward Fehringer, an expert hired by Advanced
Services to review Copley’s medical records, opined that Copley had reached maximum medical
improvement as to his left shoulder injury that occurred on November 6, 2018. Fehringer indicated
that Copley would have permanent restrictions as a result of his shoulder injury, including, “only
limited work above chest height and that within two feet of his body[.]” Presumably after receiving
Fehringer’s letter, on October 29, 2019, Advanced Services notified Copley that it would no longer
be providing him with a lighter duty position which would conform to his physical restrictions. As
such, Copley did not return to work at Advanced Services. As of the time of trial he had not yet
found other employment.
Copley filed a petition in the compensation court alleging that he was injured on November
6, 2018, in the course and scope of his employment with Advanced Services. A hearing was held
on Copley’s petition in September 2020. At the hearing, Copley and Advanced Services stipulated
to the following facts: that Copley was employed with Advanced Services on November 6, 2018;
that Copley notified Advanced Services of his accident and resulting injury as soon as practicable;
and that Copley’s average weekly wage at Advanced Services was $605 per week. The issues in
contention included whether Copley’s accident occurred in the scope and course of his
employment with Advanced Services, whether the injuries suffered by Copley were caused by the
work-related accident, and whether Copley had suffered periods of disability as a result of the
accident.
The parties offered into evidence some of Copley’s employment records and his medical
records from various providers. In addition to this evidence, Copley testified. Much of Copley’s
testimony has been recounted above in the description of Copley’s accident and resulting injuries.
However, Copley also provided additional information about his injuries. As to his shoulder injury,
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Copley admitted that prior to his November 2018 accident, he had previously injured his left
shoulder and, in particular, his rotator cuff. In fact, in 2014, Copley underwent surgery to repair
his left rotator cuff. He testified that after this surgery and some physical therapy, he was able to
return to his work as a truckdriver for a different company with no restrictions. In contrast to the
prior surgical success, Copley testified that after his shoulder surgery in March 2019, the surgical
repair to his rotator cuff did not last even long enough for him to complete physical therapy. He
explained that at the present time, he is not capable of lifting much more than a gallon of milk with
his left arm. Copley testified that he needs another shoulder surgery in order to reduce his pain and
increase his mobility and strength. Without this surgery, Copley has been unable to find new
employment.
Copley also testified that he continued to suffer from migraines at the time of the hearing.
And, while medication he was taking had reduced the severity and number of occurrences of the
migraines, the medication had not improved his vision. Copley explained that his doctor had told
him that if his loss of peripheral vision continues to worsen, he may not be able to pass the vision
test necessary to renew his commercial driver’s license. However, he admitted that no medical
professional had told him that he is currently unable to drive a truck due to a vision impairment.
Copley indicated that he continues to see his neuro-ophthalmologist every 6 months.
On February 9, 2021, the compensation court issued its award. In the award, the court
specifically indicated that it found Copley to be a credible and reliable witness. The court further
found that Copley’s November 6, 2018, accident with the forklift occurred in the scope and course
of his employment with Advanced Services. The compensation court found that while Copley’s
torn biceps tendon was the result of the November 6 work-related accident, that the injury to his
rotator cuff was a preexisting condition that was not caused by the accident. Specifically, the court
explained, “[T]he Court is not persuaded that [Copley] suffered injury to his rotator cuff as a result
of the accident of November 6, 2018.” The court went on to find that despite conflicting expert
medical opinions, Copley’s eye injury, facial fractures, and headaches were also caused by the
November 6 accident.
In discussing whether Copley was entitled to disability payments, the court first discussed
whether he had reached maximum medical improvement as to his two distinct injuries. The
compensation court explicitly adopted the opinion of Fehringer who opined that Copley had
reached maximum medical improvement as to his shoulder injury on October 29, 2019, and that
he had suffered a permanent physical impairment of 5 percent as a result of the injury to his left
shoulder. The court stated:
The Court finds that on October 29, 2019, [Copley] reached maximum medical
improvement for the left shoulder injury he suffered as a result of the November 6, 2018,
work accident. The Court further finds that, thereafter, [Copley] suffered a permanent
physical impairment of 5 percent of his left arm as a result of the work accident of
November 6, 2018. These findings entitle [Copley] to $403.33 per week for a period of
11.25 weeks. (225 x 5% = 11.25[)].
As to Copley’s eye injury, the compensation court found that Copley had not reached maximum
medical improvement yet:
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[Copley] has remained under active medical care for the treatment of his headaches and
eye injury with [the neuro-ophthalmologist]. [The neuro-ophthalmologist] has continued
to monitor and document [Copley’s] left eye and headaches, and has noted a progression
of his visual field loss and an increase in the frequency and intensity of headaches. [The
neuro-ophthalmologist] has recommended further evaluation and testing of his field of
vision for loss or changes. On March 17, 2020, [the neuro-ophthalmologist] noted that his
field of vision was relatively stable, however, no opinion that he had reached maximum
medical improvement was articulated. In fact, [the neuro-ophthalmologist] recommended
continued treatment of the headaches and eye as well as additional evaluation.
Because Copley’s eye injury had not reached maximum medical improvement by the time
of the hearing, the compensation court determined that “payment of permanent disability for
[Copley’s] left arm injury should not commence until he reaches maximum medical improvement
for all injuries suffered as a result of the November 6, 201[8], accident.” The compensation court
ordered Advanced Services to pay Copley
$403.33 per week in temporary total disability from and after October 29, 2019, through
the date of trial, and for so long thereafter as he remains temporarily and totally disabled.
When [Copley] reaches maximum medical improvement from all injuries suffered in the
work accident of November 6, 2018, he shall be entitled to the statutory amounts of
permanent disability due to this accident and injuries, including the 5 percent left arm
impairment and permanent disability as a result of his vision loss and headaches, if any.
After the compensation court entered its award, Advanced Services filed a motion for
“reconsideration/modification of award.” In the motion, Advanced Services asserted that the
compensation court erred in awarding Copley continuing temporary disability payments due to his
eye injury not reaching maximum medical improvement yet. Advanced Services contended that
Copley’s eye injury could not independently support an award of temporary disability payments.
After a hearing, the compensation court overruled Advanced Services’ motion.
Advanced Services appeals here.
ASSIGNMENTS OF ERROR
On appeal, Advanced Services assigns five errors. It argues, restated and reordered, that
the compensation court erred in (1) finding that Copley injured his eye in the course and scope of
his employment; (2) finding Copley suffered permanent restrictions as a result of his left shoulder
injuries; (3) awarding Copley continuing temporary total disability payments because he had not
reached maximum medical improvement as to his eye injury, even though he had reached
maximum medical improvement as to his shoulder injuries; (4) “failing to clearly specify the
evidentiary and factual basis for its determination of the running temporary total disability award”
in contravention of Rule 11 of the Nebraska Workers’ Compensation Court Rules of Procedure;
and (5) denying Advanced Services’ motion for reconsideration or modification of the award.
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STANDARD OF REVIEW
A judgment, order, or award of the compensation court may be modified, reversed, or set
aside only upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient
competent evidence in the record to warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support the order or award. Hynes v. Good
Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013). On appellate review, the factual findings
made by the trial judge of the compensation court have the effect of a jury verdict and will not be
disturbed unless clearly wrong. Gardner v. International Paper Destr. & Recycl., 291 Neb. 415,
865 N.W.2d 371 (2015). In workers’ compensation cases, an appellate court is obligated to make
its own determinations regarding questions of law. Id.ANALYSIS
Injury to Left Eye and Face.
On appeal, Advanced Services asserts that the compensation court erred in finding that
Copley’s eye and facial injuries were caused by the November 6, 2018, work accident. Essentially,
Advanced Services argues that the court erred in accepting the opinion of Copley’s treating
neuro-ophthalmologist over the opinion of its own expert.
Copley’s treating neuro-ophthalmologist, Dr. Amita Vuppala, opined that Copley’s eye
and facial injuries were caused or aggravated by the November 6, 2018, work accident. Vuppala
stated that such opinion was based on a reasonable degree of medical or scientific certainty. To
the contrary, Advanced Services’ ophthalmology expert, Dr. Alan Weingarden, opined that
Copley’s eye and facial injuries were not caused by the November 6, 2018, work accident.
Weingarden believed that Copley’s current complaints of vision problems and headaches were
unrelated to the accident: “The pathophysiology of a work injury is immediate damage followed
by subsequent improvement. [Copley] has been developing new signs and symptoms long after
the injury. This is not physiologically possible.” Notably, Weingarden did not ever personally
examine Copley. His opinion was based solely upon a review of Copley’s medical records.
In the compensation court’s award, it explicitly adopted the opinion of Vuppala and found
that Copley’s eye and facial injuries were caused by the work accident. In so finding, the court
explained that it found Weingarden’s opinion to be unpersuasive:
The Court is not persuaded by [Weingarden’s] opinion as the claimed onset of symptoms
was immediate and [Copley’s] complaints of vision changes were noted [to multiple care
providers in the weeks after the November 6, 2018, work accident]. [Copley’s] care for his
eye complaints began extensively, subsequent to these reports, commencing . . . on January
11, 2019.
The compensation court is the sole judge of the credibility and weight to be given medical
opinions, even when the health care providers do not give live testimony. Yost v. Davita, Inc., 23
Neb. App. 482, 873 N.W.2d 435 (2015). Resolving conflicts within a health care provider’s
opinion also rests with the compensation court, as the trier of fact. Id. When the record presents
nothing more than conflicting medical testimony, an appellate court will not substitute its judgment
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for that of the compensation court. Id. The compensation court chose to find the opinion of Vuppala
credible, and we do not reweigh that decision on appeal. Based on the record before us, we cannot
say the compensation court was clearly wrong in determining that Copley’s eye and facial injuries
were caused by the November 6, 2018, work accident.
Permanent Restrictions as to Left Shoulder Injury.
Advanced Services assigns as error the compensation court’s finding that Copley suffered
permanent restrictions as a result of his work-related shoulder injury. Notably, in the argument
section of Advanced Services’ brief to this court, it also appears to challenge the court’s finding
that the shoulder injury rendered Copley permanently partially disabled. However, because such
issue was not both assigned and argued, we do not consider Advanced Services’ specific assertions
regarding the compensation court’s finding of permanent partial disability. See AVG Partners I v.
Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020) (alleged error must be both
specifically assigned and specifically argued in brief of party asserting error to be considered by
appellate court).
Advanced Services’ contention that the compensation court erred in finding that Copley
suffered permanent restrictions as a result of his work-related shoulder injury is based upon the
court’s reliance on the opinion of Fehringer, who served as an expert hired by Advanced Services.
Specifically, Advanced Services argues that its expert’s opinion regarding permanent restrictions
“expressly notes the uncertainty in identifying the cause of [Copley’s] alleged permanent
restrictions,” and “[i]mportantly, Dr. Fehringer did not definitively determine that the cause of
[Copley’s] need for permanent restrictions was the work injury.” Brief for appellant at 26
(emphasis in original). Advanced Services points out that Fehringer stated it was “extremely
difficult to try and determine how much of [Copley’s] residual weakness and/or motion is related
to the chronic tear, the work-related injury, and/or the surgery used to treat it. I am simply using
5% as an estimate of how much we can attribute the aggravation of [Copley’s] preexisting disease
to the work-related process.” Upon our review, we conclude that Fehringer’s opinion is sufficiently
definite regarding the permanent restrictions being the result of the work-related injury.
The law is well established that a workplace injury and a preexisting condition can result
in a compensable disability. A worker’s compensation claimant can recover benefits when an
injury, arising out of and in the course of employment, combines with a preexisting condition to
produce a disability. Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 N.W.2d
371 (2015). Fehringer’s opinion reflects his effort to distinguish the permanent restrictions and
permanent impairment he attributed to the workplace aggravation of Copley’s preexisting
condition from the preexisting rotator cuff condition itself, thus resulting in a relatively low
permanent impairment rating. Fehringer specifically indicated that the physical restrictions he
assigned to Copley’s left shoulder were related to the November 2018 workplace injury.
In a letter authored by Fehringer dated October 25, 2019, he diagnosed Copley as suffering
from “a massive chronic left rotator cuff tear with developing cuff tear arthropathy.” The same
day that Fehringer authored this letter, he performed an independent medical examination of
Copley. During this physical examination, Fehringer noted that in addition to the injury to the
rotator cuff, Copley’s left shoulder also had “an obvious long head of the biceps tendon rupture
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. . . with a deformity.” Fehringer did not reference the injury to the biceps tendon when responding
to the inquiry for a “Diagnosis.”
Also in the October 25, 2019, letter, Fehringer opined, to a reasonable degree of medical
certainty, regarding the cause of Copley’s shoulder injury:
In my medical opinion Mr. Copley’s current left shoulder complaints are related to his
preexisting rotator cuff tear resulting from a re-tear of his 2014 repair with pain and
dysfunction following his work-related injury; and shoulder surgical intervention in March
2019. In my opinion, the chronic rotator cuff tear is related to a preexisting condition
known as rotator cuff re-tear or failure to heal following surgical intervention in 2014. This
is often part of the natural progression. The re-tear happened before his November 2018
injury. His late November 2018 injury was an aggravation of that preexisting injury.
Fehringer also opined to a reasonable degree of medical certainty as to whether Copley’s
work-related accident in November 2018 had resulted in any permanent work restrictions as to his
left shoulder: “In terms of work restrictions as a result of the alleged injury to the left shoulder, I
would recommend limited work above chest height and that within two feet of his body as
permanent restrictions.” Fehringer further concluded that Copley had “reached maximum medical
improvement as a result of the 11/30/2018 injury to the left shoulder as of today.”
Fehringer’s opinion that Copley had permanent restrictions as a result of the work-related
injury to his left shoulder is sufficiently definite. Fehringer specifically stated that it was his
opinion that Copley’s work-related shoulder injury had resulted in him being permanently
restricted to only performing limited work above his chest and to performing such “above chest
height” work within 2 feet of his body. We find no error in the compensation court’s reliance on
Fehringer’s opinion in determining Copley’s permanent restrictions to his left shoulder were the
result of the November 2018 work injury.
However, although not complained about by Advanced Services, we do note some
confusion created by the court’s statement referencing Fehringer’s opinions when it stated, “The
Court accepts these opinions and finds they are a reasonable representation of the permanent injury
suffered by [Copley] as a result of the left bicep tear suffered as a result of the November 6, 2018,
accident.” Based upon Fehringer’s opinions, which the court had just set forth and accepted, a
more accurate summation of the doctor’s opinions would have also included references to the
aggravation of the preexisting chronic rotator cuff condition and the March 2019 surgery, which
surgery treated both the rotator cuff and bicep conditions; Fehringer attributed Copley’s “residual
weakness and/or motion” to “the chronic tear, the work-related injury, and/or the surgery used to
treat it.” Therefore, the court’s summary statement referencing only the left bicep tear is confusing.
Regardless, the balance of the court’s summation of Fehringer’s opinions is supported by the
record and presents a sufficient basis for the court’s ultimate conclusion tying Copley’s left
shoulder restrictions to the workplace accident. The sufficiency of a compensation court’s opinion
is judged in the context of the expert’s entire statement. See Welke v. City of Ainsworth, 179 Neb.
496, 138 N.W.2d 808 (1965). Accordingly, we affirm the decision of the compensation court
regarding the permanent restrictions for the work-related shoulder injury.
As we explained above, Advanced Services did not both assign and argue its contention
that the compensation court erred in concluding that Copley suffered a 5-percent permanent partial
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impairment as a result of his work-related left shoulder injury. Because Advanced Services did not
both assign and argue this assertion, we do not consider its specific contentions regarding the
compensation court’s decision. However, upon our own review, we find that the compensation
court committed plain error in assigning any permanent impairment rating as a result of the left
shoulder injury at this juncture in the proceedings. As such, we reverse the compensation court’s
conclusion that Copley suffered a 5-percent permanent partial impairment as a result of his
work-related left shoulder injury.
Although an appellate court ordinarily considers only those errors assigned and discussed
in the briefs, the appellate court may, at its option, notice plain error. State v. Clausen, 307 Neb.
968, 951 N.W.2d 764 (2020). Plain error exists where error, plainly evident from the record,
prejudicially affects a substantial right of a litigant and is of such nature that if left uncorrected
would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness
of judicial process. See Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020).
In the compensation court’s award, it explicitly determined that Copley had suffered a
permanent physical impairment to his left arm:
The Court finds that on October 29, 2019, [Copley] reached maximum medical
improvement for the left shoulder injury he suffered as a result of the November 6, 2018,
work accident. The Court further finds that, thereafter, [Copley] suffered a permanent
physical impairment of 5 percent of his left arm as a result of the work accident of
November 6, 2018.
The compensation court went on to find that the work-related injury to Copley’s eye had not yet
reached maximum medical improvement and that, as a result, he was still entitled to temporary
disability payments. Upon our review, we conclude that the compensation court committed plain
error in assigning a permanent disability rating to Copley’s left shoulder injury while at the same
time ordering the continuation of temporary disability payments.
Temporary disability contemplates the period the employee is submitting to treatment, is
convalescing, is suffering from the injury, and is unable to work because of the accident. See
Meredith v. Schwarck Quarries, 13 Neb. App. 765, 701 N.W.2d 387 (2005). When a worker has
reached maximum recovery, the remaining disability is permanent and such worker is no longer
entitled to compensation for temporary disability. Id. A given condition cannot at one and the same
time be both temporary and permanent. Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707
N.W.2d 232 (2005). As such, a workers’ compensation claimant should not receive temporary
disability benefits upon reaching maximum medical improvement. Id. But, whereas in this case, a
claimant has suffered more than one injury in a work-related accident, the date of maximum
medical improvement for purposes of ending temporary disability benefits is established as
follows:
[E]ven if medical evidence establishes that a claimant’s different injuries have different
dates of maximum medical recovery, the legally significant date -- the date of maximum
medical improvement for purposes of ending a workers’ compensation claimant’s
temporary disability -- is the date upon which the claimant has attained maximum medical
recovery from all of the injuries sustained in a particular compensable accident.
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Id. at 764, 707 N.W.2d at 239 (emphasis in original). See, also, Worline v. ABB/Alstom Power Int.
CE Servs., 272 Neb. 797, 725 N.W.2d 148 (2006).
Because the compensation court determined that Copley’s eye injury had not reached
maximum medical improvement, it, in effect, determined that Copley had not reached maximum
medical improvement for the purpose of ending his temporary disability benefits. Accordingly, the
court’s finding that Copley suffered from a 5-percent permanent disability as a result of his left
shoulder injury was premature. In Rodriguez v. Hirschbach Motor Lines, supra, the Nebraska
Supreme Court explained that when not all of a claimant’s disabling injuries have reached
maximum medical improvement, it will be difficult, “if not impossible,” to determine a claimant’s
actual permanent disability. Id. at 763, 707 N.W.2d at 238. This is so because the determination
of a claimant’s permanent disability may require the court to consider the effect of different injuries
that occurred in the same accident. Id. For example, in Zavala v. ConAgra Beef Co., 265 Neb. 188,
655 N.W.2d 692 (2003), the Supreme Court analyzed how to determine permanent disability when
a worker had sustained both a scheduled member injury and a whole body injury in the same
accident. Therein, the court held that the Nebraska Workers’ Compensation Act
does not prohibit the court from considering the impact of both injuries in assessing the
loss of earning capacity. In making such an assessment, the court must determine whether
the scheduled member injury adversely affects the worker such that loss of earning capacity
cannot be fairly and accurately assessed without considering the impact of the scheduled
member injury upon the worker’s employability. If the loss of earning capacity cannot be
fairly and accurately assessed without such consideration, then the court is permitted to
do so.
Id. at 199, 655 N.W.2d at 702.
In Canas-Luong v. Americold Realty Trust, 22 Neb. App. 999, 866 N.W.2d 101 (2015),
this court reversed a decision of the compensation court which awarded the claimant a permanent
partial disability benefit when she was not yet at maximum medical improvement for all of her
injuries. We stated, “This permanent partial scheduled member award was premature, since the
compensation court determined that Canas-Luong was not yet at MMI for her psychological injury
and was entitled to ongoing temporary total disability benefits.” Id. at 1004, 866 N.W.2d at 106.
Although in this case the compensation court did indicate that no permanent disability
payments should be made until maximum medical improvement had been reached for all injuries
suffered in the November 2019 work accident, we find that the court committed plain error in
determining the specific amount of permanent disability Copley suffered as a result of his left
shoulder injury. It is not yet clear how the injury to Copley’s eye may interplay with his permanent
physical restrictions as a result of the shoulder injury. As such, it is not yet possible to determine
with any certainty, Copley’s permanent partial disability rating. So, while we affirm the
compensation court’s decision that Copley’s shoulder injury had reached maximum medical
improvement and that, as a result of such injury, he had permanent physical restrictions, we reverse
that portion of the award which determined his specific level of permanent partial disability.
Before reaching the next assigned error, we take a moment to address the portion of the
concurrence/dissent which takes issue with the compensation court’s reliance on Fehringer’s
opinion to determine Copley’s 5-percent permanent partial disability to his left shoulder. Although
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we are reversing that determination due to it being premature, as just discussed, the dissent
nevertheless contends “the compensation court’s opinion appears to attribute an impairment rating
to an injury the court had previously found to be not compensable.” The dissent points to wording
used by the compensation court in the section of its opinion entitled “Causation,” where it stated
it was “not persuaded that [Copley] suffered an injury to his rotator cuff as a result of the accident
of November 6, 2018.” We find nothing unusual about this finding, as it is consistent with the
opinions of Lesiak, Hood, and Fehringer. Lesiak found that the rotator cuff injury was chronic in
nature and did not happen when Copley was injured in the forklift accident; Hood agreed.
Fehringer also agreed with that assessment, noting that Copley’s chronic rotator cuff tear was
related to a preexisting condition and that the “re-tear happened before [Copley’s] November 2018
injury.” Fehringer made clear that the “November 2018 injury was an aggravation of that
preexisting injury.”
Accordingly, the compensation court’s finding that the November 2018 accident did not
cause Copley’s rotator cuff injury is consistent with the medical opinions submitted to the court.
The dissent notes that neither party complains of this issue and that the majority opinion has not
taken “into account the compensation court’s clear finding earlier in the opinion that the rotator
cuff injury was in no way related to the work accident,” which the dissent claims makes the
compensation court’s reliance on Fehringer’s permanent partial disability opinion “extremely
puzzling.” The dissent suggests it would be “more prudent” to remand and direct the compensation
court “to clarify or rectify the inconsistencies in its award.” However, as discussed earlier, although
we found some language in the compensation court’s opinion to be confusing, we find no
inconsistency in the compensation court’s determination that the rotator cuff injury was not related
to the work accident, but then finding that the aggravation to the rotator cuff injury was related to
the work accident. It was not erroneous for the compensation court to rely on the medical opinions
which determined the rotator cuff injury was not caused by the November 2018 accident, but to
then rely upon Fehringer’s opinion that the workplace accident “was an aggravation of that
preexisting injury.” Ultimately, Fehringer considered the preexisting “chronic tear, the
work-related injury, and/or the surgery used to treat it,” when calculating “how much we can
attribute the aggravation of [Copley’s] preexisting disease to the work-related process.” And while
the compensation court’s reliance on the same was premature, it was not inconsistent with the
record before it.
Award of Temporary Total Disability Payments Until Copley Reaches Maximum Medical
Improvement for His Eye and Facial Injuries.
As we explained above, in Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707
N.W.2d 232 (2005), the Supreme Court held that a claimant reaches maximum medical
improvement for purposes of ending the payment of temporary disability benefits when all injuries
from a work-related accident have reached maximum medical improvement. Stated another way,
if a claimant is unable to work as a result of work-related injuries, then the claimant is entitled to
temporary disability benefits until all of the pertinent injuries have reached maximum medical
improvement.
In this case, the compensation court relied on the Supreme Court’s holding in Rodriguez v.
Hirschbach Motor Lines, supra, when awarding Copley with continuing temporary disability
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benefits because, while Copley’s left shoulder injury had reached maximum medical improvement,
the injury to his left eye had not yet reached maximum medical improvement. The compensation
court explained:
[The limitations to Copley’s shoulder], although now permanent, when combined with
[Advanced Services’] failure to accommodate them, has left [Copley] unable to return to
work for which he has previous training and experience. As [Copley] has not reached
maximum medical improvement for all injuries suffered, he is entitled to temporary
disability.
On appeal, Advanced Services attempts to distinguish the facts of Rodriguez from the facts
of this case. Specifically, Advanced Services asserts that unlike in Rodriguez, where the claimant
remained off from work because of the injury that had not yet reached maximum medical
improvement, in this case, Copley’s eye injury, which had not reached maximum medical
improvement, did not currently affect his ability to return to work. Rather, it was only Copley’s
shoulder injury, which had reached maximum medical improvement, which contributed to his
inability to work. Advanced Services claims that the compensation court erred in awarding
continuing temporary disability benefits when his remaining “non-MMI” injury did not affect his
ability to return to work. Brief for appellant at 22. “While all injuries are to be considered for the
purposes of MMI, it is improper to extend temporary benefits when the claimant has no temporary
restrictions on his ability to return to work.” Id. at 22 (emphasis in original).
While we agree with Advanced Services that there are not yet any restrictions from
Copley’s eye injury which prevent him from working, there is evidence that Copley has left
shoulder restrictions which prevent him from returning to work, as discussed previously. In fact,
it was precisely the restrictions to Copley’s shoulder which caused Advanced Services to terminate
Copley’s employment. And, pursuant to Rodriguez, the compensation court was correct to consider
such restrictions in awarding continuing temporary disability benefits.
Moreover, contrary to Advanced Services’ assertion on appeal that the facts of this case
are distinguishable from the facts in Rodriguez, we conclude that the factual differences between
the cases are not significant. Copley presented evidence at the hearing that while his eye injury did
not currently affect his ability to work, that such injury was likely to worsen over time. Copley
indicated that if his eye injury continues to worsen, he may no longer be able to pass a driving test
or be capable of driving a semi-truck. As such, it is entirely possible that Copley’s eye injury may
affect his ability to work before it ever reaches maximum medical improvement. Such a factual
scenario is precisely the reason that permanent impairment and, thus, permanent disability, should
not be determined until all of the claimant’s injuries have reached maximum medical
improvement. Temporary disability benefits should remain available to a claimant until such time
as all injuries have reached maximum medical improvement, i.e. when it becomes apparent that
the employee will get no better or no worse because of the injury. See Rodriguez v. Hirschbach
Motor Lines, 270 Neb. 757, 707 N.W.2d 232 (2005). We affirm the compensation court’s decision
to award Copley with continuing temporary disability benefits until such time as his eye injury has
reached maximum medical improvement.
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Remaining Assignments of Error.
In its final assignments of error, Advanced Services asserts that the compensation court
erred both in failing to provide a well-reasoned opinion pursuant to Rule 11 of the Nebraska
Workers’ Compensation Court Rules of Procedure and in denying its motion for reconsideration.
The basis for both of these assigned errors relate to the same arguments made by Advanced
Services in its previous assigned errors. Such arguments have been addressed by the analysis
already provided. Copley remains unemployed because of the physical restrictions the
compensation court properly attributed to the November 2018 workplace accident. The record also
supports that the compensation court’s decision to award Copley with continuing temporary
disability benefits was based upon Copley not yet reaching maximum medical improvement for
all of the injuries he suffered as a result of the November 2018 work-related accident.
CONCLUSION
Upon our review, we affirm the compensation court’s finding that Copley’s eye and facial
injuries were caused by the November 6, 2018, work accident. We also affirm the court’s decision
that Copley suffered permanent physical restrictions to his left shoulder as a result of the work
accident and the court’s award of continuing temporary disability benefits pending Copley’s eye
and facial injuries reaching maximum medical improvement. However, we reverse the
compensation court’s determination of the amount of permanent partial disability Copley suffered
as a result of the left shoulder injury. We find such determination to be premature in light of the
fact that not all of Copley’s injuries have reached maximum medical improvement.
AFFIRMED IN PART, AND IN PART REVERSED.
ARTERBURN, Judge, concurring in part, and in part dissenting.
I concur with the majority that there was sufficient evidence presented to support the
compensation court’s finding that Copley’s eye and facial injuries were caused by the November
6, 2018, work accident. However, because I find that the compensation court’s award contains
inconsistencies with regard to its decision that Copley suffered any permanent impairment as a
result of his work-related shoulder injury, I respectfully dissent from the remainder of the opinion.
In the compensation court’s award, it found that the injury to Copley’s left biceps tendon
was caused by the November 2018 work accident. However, the court found that the injury to
Copley’s left rotator cuff was not the result of the work accident:
Based upon the opinions of [the medical experts], the Court finds that [Copley] suffered an
injury to his biceps tendon as a result of the accident on November 6, 2018. In so finding,
the Court is not persuaded that [Copley] suffered injury to his rotator cuff as a result of the
accident of November 6, 2018.
The compensation court went on to find that Copley “suffered a permanent physical
impairment of 5 percent of his left arm as a result of the work accident of November 6, 2018.” The
court explicitly based its finding that Copley had suffered a permanent physical impairment as a
result of the left biceps tear on the opinion of Fehringer. The court explained: “The Court accepts
[the opinions of Fehringer] and finds they are a reasonable representation of the permanent injury
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suffered by [Copley] as a result of the left bicep tear suffered as a result of the November 6, 2018
accident.”
However, Fehringer’s report conflicts with the compensation court’s finding of permanent
physical impairment in the left bicep. In his report, Fehringer attributed Copley’s “current left
shoulder complaints” to the injury to his rotator cuff. He opined that the November 2018 work
accident had aggravated the preexisting injury to the rotator cuff. And, while Fehringer indicated
that Copley would have permanent restrictions as a result of the injury to his rotator cuff, he
explained,
In the proverbial rearview mirror it is extremely difficult to try and determine how much
of [Copley’s] residual weakness and/or motion is related to the chronic tear, the
work-related injury, and/or the surgery used to treat it. I am simply using 5% as an estimate
of how much we can attribute the aggravation of his preexisting disease to the work-related
process.
Notably, Fehringer’s opinion regarding Copley’s permanent impairment related only to the
rotator cuff injury, not to the biceps tendon tear. In fact, Fehringer did not even mention the tear
to Copley’s biceps tendon when giving his opinion of permanent impairment. The compensation
court explicitly found that only the injury to Copley’s biceps tendon, and not the injury to Copley’s
rotator cuff, was caused by the work accident. Such finding is not challenged on appeal and,
according to my review of the record, is supported by competent medical evidence. Given the
compensation court’s finding that Copley’s rotator cuff injury was not caused by the work-related
accident, the court’s reliance on Fehringer’s opinion of permanent disability is extremely puzzling.
In fact, it appears clear to me that the compensation court and Fehringer are talking about two
different shoulder injuries vis-a-vis the permanent restrictions. Stated another way, the
compensation court’s opinion appears to attribute an impairment rating to an injury the court had
previously found to be not compensable.
The majority describes this inconsistency in the compensation court’s award as
“confusing,” and then attempts to rectify this confusion by assuming that the compensation court
intended to also reference an aggravation of the rotator cuff injury in its discussion of Copley’s
work-related shoulder injury. However, such an assumption does not take into account the
compensation court’s clear finding earlier in the opinion that the rotator cuff injury was in no way
related to the work accident.
In my view, we must look to the plain language of the compensation court’s opinion rather
than making assumptions about the compensation court’s intentions. It seems the more prudent
course is to allow the compensation court to clarify or rectify the inconsistencies in its award.
Although addressed to a different issue, Advanced Services assigned as error the compensation
court’s failure to provide a well-reasoned opinion as required by Rule 11A. Rule 11A provides
that “[d]ecisions 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.” Given the inconsistency
in the court’s findings, I would conclude that the compensation court has failed to provide us with
a sufficient basis to review its determination that Copley suffered any permanent impairment as a
result of the work-related injury to his left shoulder. I would remand this issue back to the
compensation court for further findings of fact and conclusions of law regarding whether Copley’s
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separate injuries to his left shoulder area were work related and whether any such work-related
injuries resulted in permanent impairment to Copley.
Because I would reverse and remand on the basis that the compensation court failed to
provide us with a sufficient basis to review its decision regarding the injuries to the left shoulder
area, I need not address Advanced Services’ remaining assignments of error. Were the case
remanded, the remaining issues potentially would be resolved by the compensation court’s revised
decision.
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