Kircher v. The Maschhoffs, LLC ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
KIRCHER V. THE MASCHHOFFS, LLC
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).
MARK KIRCHER, APPELLEE,
V.
THE MASCHHOFFS, LLC, APPELLANT.
Filed December 8, 2015. No. A-15-238.
Appeal from the Workers’ Compensation Court: THOMAS E. STINE, Judge. Affirmed.
Melvin C. Hansen, of Hansen, Lautenbaugh & Buckley, L.L.P., for appellant.
Brett McArthur for appellee.
PIRTLE, RIEDMANN, and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
The Maschhoffs, LLC, appeals from an award entered by the Nebraska Workers’
Compensation Court on February 11, 2015. The court found Mark Kircher had reached
maximum medical improvement and was entitled to temporary total disability. The court also
found Kircher was entitled to permanent partial disability benefits, as he sustained a 75 percent
loss of earning capacity as a result of his low back injury. For the reasons that follow, we affirm.
BACKGROUND
Mark Kircher began working for his employer, The Maschhoffs, LLC (hereinafter the
employer), in 2011, when the company was purchased from Kircher’s previous employer.
Kircher was the site manager for two hog facilities containing approximately 5,500 hogs at each
site. The hogs weighed between 5 and 150 pounds. Kircher’s duties included maintaining the
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confinement buildings, vaccinating hogs, doing paperwork, maintaining food and water supplies,
and checking pens for dead or sick hogs. Kircher dragged the dead hogs from the pen, a distance
ranging between 30 and 300 feet. The dead hogs usually weighed between 60 and 100 pounds.
Kircher also carried feed sacks weighing up to 50 pounds and climbed grain bins to check
whether there was an adequate supply of feed available.
On November 17, 2013, Kircher was dragging a dead hog weighing between 100 and 110
pounds out of the employer’s barn and felt a pop in his lower back. He immediately experienced
a sharp pain, but finished his shift that day. The following day, Kircher was moving a small pig
that had fallen between two slats in the floor, and felt significant pain in his back. He crawled out
of the pen and to the office, then went home and did not return to work.
Kircher sought medical treatment at Quality Urgent Care in McCook and was diagnosed
with a lumbo-sacral sprain. Following that, Kircher began chiropractic treatment with Dr.
Michael R. Nielsen, and was treated multiple times between November 25 and December 23,
2013. Nielsen reported that Kircher achieved reasonable improvement of his symptoms
considering the severity of his injury. Nielsen reported Kircher had been a patient previously and
that prior to this incident, Kircher’s last visit with Nielsen was in January, 2010.
Kircher visited Charles Krysl, a Physician’s Assistant at the McCook Clinic. An MRI
was performed revealing Kircher had mild degenerative disc disease in his lumbar spine, as well
as a mild disc herniation at L5-S1. Krysl referred Kircher to Dr. David Benavides for treatment,
and Benavides diagnosed him with lumbar disc herniation at L5-S1 and lumbar disc
degeneration. Benavides opined that “the degenerative changes that lend themselves to the
mechanical back pain are long-standing which are further exacerbated by [Kircher’s] nicotine
use.”
Benavides ordered epidural steroid injections and Kircher received two injections which
provided significant relief for his pain. Benavides ordered physical therapy for a period of 30
days. At the conclusion of physical therapy, Kircher was able to lift up to 40 pounds, but had
significant difficulty lifting 50 pounds or more. The physical therapist noted Kircher would not
be able to lift 50 pound feedbags as he previously had been able to do as part of his job with the
employer.
Benavides opined that Kircher reached maximum medical improvement on March 7,
2014 and released him from care on that date without providing any plan for future medical
treatment. He opined that Kircher would be able to resume some level of work activity, but
found that Kircher would be limited to lifting 30 pounds on a frequent basis, and 45 pounds
occasionally. He released Kircher to resume work on March 7, and advised him to discontinue
smoking because it could hinder the healing process. He opined that Kircher did not incur any
permanent partial disability from the herniation which was the result of the work incident. He
stated that Kircher’s restrictions were more consistent with the chronic degenerative disk
changes.
Kircher returned to see Krysl after he continued to suffer pain and limitations, and was
referred Dr. David Diamant. Diamant reviewed Kircher’s MRI and found that it was “quite
unremarkable” for a man of Kircher’s age. Diamant diagnosed him with chronic low back pain
that spreads intermittently to the lower limbs and “mild lumbar spondylosis of L3-4 and L4-5,
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small disc herniation left L5-S1.” Diamant treated Kircher with medication and suggested the use
of a TENS unit. Kircher stated that he responded favorably to the TENS unit.
Diamant asked Kircher if he had symptoms similar to what he experienced in November
2013 at any time prior, and he indicated that he had not. Diamant opined that Kircher’s pain and
limitation were related to the work injury and that he was not at maximum medical improvement.
Diamant opined that it was appropriate for Kircher to return to work at a light to medium
physical demand level, lifting a maximum of 35 pounds on an occasional basis and no more than
occasional bending, stooping, or twisting of the trunk.
Dr. Sunil Bansal performed an independent medical examination on October 1, 2014, and
diagnosed Kircher with lumbar disc herniation with radiculopathy at L5-S1. Bansal’s report
stated that the injury was sustained while carrying dead hogs, although Kircher reported to other
providers that he was dragging the hog. Bansal noted that prior to his work injury Kircher did not
experience back problems, and was able to perform his job duties without difficulty. Therefore,
Bansal concluded, that from both “mechanistic and temporal standpoints,” Kircher’s condition
was related to his work injury at the employer’s farm. Bansal supported this opinion by citing
research from the Mayo Clinic which stated “lifting large heavy objects can lead to a herniated
disc.” Bansal placed Kircher at maximum medical improvement on March 7, 2014, at the time of
his last appointment with Benavides. Bansal also assigned a 10 percent whole person
impairment, and recommended lifting restrictions of 25 pounds occasionally, and 10 pounds
frequently.
This matter came before the Nebraska Workers’ Compensation Court on January 27,
2015. Kircher testified that he discontinued working two days after the work injury. He did not
return to work and he continues to wear a TENS unit which he believes provides some relief of
his symptoms. He testified that he continues to feel pain radiating through his legs and continues
to smoke a pack of cigarettes per day.
The court entered an award on February 11, 2015 finding Kircher sustained an accident
and injury on November 17, 2013, and he is entitled to workers’ compensation benefits. The
court found Kircher reached maximum medical improvement on March 7, 2014 and he was
entitled to temporary total disability benefits from November 20, 2013 to March 7, 2014. The
court reviewed the impairment rating, Kircher’s statement of his abilities and his medical records
and found Kircher sustained a 75 percent loss of earning capacity as a result of his injury. The
court awarded permanent partial disability payments in the amount of $372.82 for 284 4/7
weeks, commencing March 8, 2014. The employer timely appeals.
ASSIGNMENTS OF ERROR
The employer asserts the Workers’ Compensation Court erred in failing to provide a
reasoned opinion, and erred in awarding benefits for a 75 percent loss of earning capacity.
STANDARD OF REVIEW
On appellate review, the factual findings made by the trial judge of the Workers’
Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly
wrong. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).
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A judgment, order, or award of the Workers’ 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.
Damme v. Pike Enterprises Inc., 289 Neb. 620, 856 N.W.2d 422 (2014).
In testing the sufficiency of the evidence to support the Workers’ Compensation Court’s
findings, we consider the evidence in the light most favorable to the successful party. Id. We
resolve every controverted fact in the successful party’s favor and give that party the benefit of
every inference that is reasonably deducible from the evidence. Id.ANALYSIS
The parties stipulated that Kircher was injured in the course and scope of his
employment, and that his weekly wage for purposes of determining workers’ compensation
benefits was $745.64. The Workers’ Compensation Court found that Kircher had reached
maximum medical improvement, and that he was entitled to temporary total disability and
permanent partial disability benefits. The court determined that Kircher sustained a 75 percent
loss of earning capacity as a result of his work accident. The court issued a detailed order
thoroughly discussing Kircher’s medical condition based on the opinions of multiple physicians.
The court clearly communicated its reasoning for finding Kircher had reached maximum medical
improvement, and its finding that he was entitled to temporary total disability and permanent
partial disability benefits.
The only portion of the award at issue in this appeal is the court’s determination that
Kircher had sustained a 75 percent loss of earning capacity as a result of his work accident. The
employer asserts there was not sufficient evidence to support a finding that Kircher had sustained
a 75 percent loss of earning capacity. Further, the employer asserts the award of the Workers’
Compensation Court does not meet the requirements of Neb. W. Comp. Ct. R. 11(a), which
requires the court to put forth reasoned opinions that “provide the basis for meaningful appellate
review” by specifying the evidence upon which the judge relies. Specifically, the employer
asserts that there is no evidence in the record showing Kircher’s prior employment, skill level,
academic record, work available in the area, or testimony regarding Kircher’s ability to obtain or
maintain employment after the accident.
There is evidence that Kircher’s work injury resulted in functional limitations that
prevent him from being able to perform the duties he was responsible for as site manager of the
employer’s hog farms. His job duties included lifting, dragging, climbing, and crawling, all
movements which are affected by his injuries. Doctors Benavides, Bansal, and Diamant opined
that Kircher should limit frequent lifting to between 10 and 30 pounds, and occasional lifting to
between 25 and 45 pounds. Bansal also assigned Kircher a 10 percent whole person impairment
as a result of his injuries. Bansal found Kircher should avoid frequent bending, squatting,
climbing, sitting, standing, and should walk only as tolerated. Bansal recommended Kircher
avoid sitting for more than 60 minutes at a time, standing for more than 30 minutes at a time, and
walking for more than 30 minutes at a time. Kircher testified that he completed 12th grade, and
testified that in the most recent years, his work experience only included work on the hog farm.
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We consider the evidence in the light most favorable to Kircher, resolve every
controverted fact in his favor, and give him the benefit of every inference that is reasonably
deducible from the evidence. In doing so, we find there is sufficient evidence to show that
Kircher’s work injuries and functional limitations certainly affect his ability to hold his position
as site manager on the hog farm and his ability to obtain similar work. He would not be eligible
for or able to perform in positions which included prolonged sitting or standing, or a physical
component like squatting, bending, or pulling. His options are further limited by his age,
education level, and the small labor market in which he lives and worked.
A judgment, order, or award of the Workers’ 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.
Damme v. Pike Enterprises Inc., 289 Neb. 620, 856 N.W.2d 422 (2014). We find the court was
not clearly wrong in determining Kircher sustained a 75 loss of earning capacity as the result of
the injury to his low back. Thus, there are not sufficient grounds to modify, reverse or set aside
the workers’ compensation court’s award.
The order of the workers’ compensation court stated that the court had “reviewed in
detail the impairment rating, plaintiff’s statements of his abilities, the various medical records
outlining plaintiff’s permanent restrictions and limitations, and the various factors used to
determine a loss of earning capacity as set forth in Sidel v. Travelers Insurance Co., 205 Neb.
541, 288 N.W.2d 482 (1980).” The order set forth the information on which the court relied in
making the determination regarding Kircher’s earning capacity. Therefore, we find the court put
forth a reasoned opinion as required by Neb. W. Comp. Ct. R. 11(a).
CONCLUSION
We find the workers’ compensation court’s decision in this case met the requirement to
provide a reasoned opinion, and the court did not err in awarding benefits for Kircher’s loss of
earning capacity.
AFFIRMED.
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