Salts v. Mosaic ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
SALTS V. MOSAIC
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).
GABRIELE J. SALTS, APPELLANT,
V.
MOSAIC AND SENTRY INSURANCE, APPELLEES.
Filed July 16, 2013. No. A-12-859.
Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge.
Affirmed.
Jamie Gaylene Scholz, of Shasteen, Miner, Scholz & Morris, P.C., L.L.C., for appellant.
George E. Martin III and Anthony D. Todero, of Baird Holm, L.L.P., for appellees.
INBODY, Chief Judge, and IRWIN and MOORE, Judges.
IRWIN, Judge.
I. INTRODUCTION
Gabriele J. Salts appeals an order of the Nebraska Workers’ Compensation Court
dismissing her petition for compensation benefits. On appeal, she alleges that the compensation
court erroneously rejected uncontradicted medical evidence of causation and erroneously found
that she had failed to prove the work-related accident that she pled. We find that the medical
evidence was not uncontradicted and that the compensation court did not err in finding that Salts
failed to prove a compensable injury arising out of a work-related accident. We affirm.
II. BACKGROUND
Salts was employed by Mosaic as a medication aide, providing care for physically and
mentally disabled residents in a care facility. Her job duties included getting residents out of bed,
getting them ready for breakfast, getting them dressed, assisting them with walking, and assisting
them with hygiene, as well as various housekeeping duties like sweeping and mopping.
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Salts alleged that she sustained a personal injury on or about September 12, 2010, in an
accident arising out of and in the course of her employment. She alleged that she was working
with a care facility resident named “Susan,” a nonverbal patient who suffers from a mental
illness which causes her to take her clothes off in public. Salts described Susan as being
approximately 5 feet 3 inches tall and weighing approximately 135 to 140 pounds. According to
Salts, she was attempting to keep Susan dressed, while Susan was attempting to get undressed.
Salts testified that “[i]t was a pull, push, pull, push, pull, push” altercation that lasted for
approximately 10 to 15 minutes.
After the incident, Salts made an entry in a “logbook” concerning her interaction with
Susan. In that entry, Salts made no mention of any injury or pain. She described the incident and
described how Susan “fought” with her about keeping her pajamas on, and she described that
Susan required physical guidance to return to her bed.
Salts alleged that she experienced pain between her left shoulder and her neck after the
incident. According to Salts, the pain lasted “all that day, all that night” and continued for
“probably a few days.” Salts utilized hot and cold packs, as well as pain medication, which
“seemed to ease the pain.” She did not report the incident or seek any medical attention
immediately after this incident.
Salts continued to work until January 20, 2011. She testified that she continued to do
sweeping and mopping every day at work for “at least a half an hour, 45 minutes” and that she
continued to lift residents and assist them with walking, “pulling and pushing them and all of
that.” She testified that her “hands just kept going numb” and that she would have to “take a
break, and just hold [her] arm and [her] hands . . . and try to exercise them to get the numbness
out of them,” making the work more difficult. Despite this, she did not report the incident or seek
medical attention for it.
In November 2010, Salts sought medical treatment for right shoulder pain and a rash. She
was diagnosed with probable bursitis. She made no mention of any left shoulder pain during this
visit, and she made no mention of the September 12 incident.
In January 2011, Salts sought medical treatment for pain radiating into her left shoulder
and then down into her hand, causing numbness. When seeking the medical treatment, Salts
reported to the treating physician that she had been experiencing pain “off and on for several
weeks.” The medical notes of this visit do not reflect any mention of the September 2010
incident or consistent symptoms from that point in time. Other medical notes indicate that she
had been seen in March 2010 “with very similar symptoms.”
An MRI was ordered, and it was performed on January 25, 2011, showing a disk
herniation. On January 27, she filed an accident report with Mosaic describing the September 12,
2010, incident--this was Salts’ first documentation of the incident.
On February 3, 2011, Salts was examined by Dr. Daniel Noble. Salts completed a
“personal health history” form, on which she reported that the symptoms were first noticed on
September 12, 2010; that the injury occurred at work; and that it happened as a result of the
incident with Susan described above. Dr. Noble reported Salts’ “history of present illness” as
being that she “began having neck pain accompanied by left upper extremity radicular
complaints in May of 2010” and that the symptoms were “managed without much intervention”
until the incident on September 12, 2010. Dr. Noble recommended surgical intervention (after
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Salts stopped smoking a pack of cigarettes per day), and concluded that she was “unable to
return to work” due to the potential for “further neurologic deterioration.”
On March 4, 2011, Salts was examined at another orthopedic center for a second opinion.
The “history of present illness” portion of that medical examination report indicated that “[n]o
identifiable incident or injury [was] described,” but that Salts’ “symptoms [had] been present, as
[then] described, for approximately the last five months.” The examining physician discussed
potential nonsurgical treatment options for Salts.
On April 6, 2011, Salts was seen at a spine and pain center. The “history of present
illness” portion of the examination report indicated that Salts “report[ed] the pain began after a
work-related accident on [September 12, 2010].” Salts was seeking “some way to relieve the
pain without surgery.” Salts received an epidural steroid injection. Salts was seen for a followup
approximately 2 weeks later, reporting some relief of pain and increased functionality, and she
received another steroid injection.
On April 8, 2011, Salts filed a complaint with the Nebraska Workers’ Compensation
Court. Salts alleged that she had sustained personal injury in an accident arising out of and in the
course of her employment on or about September 12, 2010. On April 22, 2011, Mosaic, as well
as its workers’ compensation insurance carrier, Sentry Insurance (Sentry), answered the
complaint, denying most of Salts’ assertions. Mosaic and Sentry denied that Salts suffered a
compensable accident, denied she suffered personal injury as a result of a work-related accident,
denied the severity of Salts’ alleged injuries, denied that her injuries were medically caused by
her employment, alleged that Salts’ medical condition was the result of a natural progression of a
preexisting condition, and alleged that Salts failed to give reasonable notice of the alleged injury.
On October 21, 2011, Dr. Noble authored a letter to Salts’ counsel. In the letter, he
indicated that he had reviewed Salts’ medical record and that he opined, with a reasonable degree
of medical probability, that her disk herniation “was caused and/or aggravated by the incident at
work on September 12, 2010,” and that “this exacerbated her pre-existing condition.”
On November 3, 2011, Salts was seen by another physician, Dr. D.M. Gammel. Dr.
Gammel indicated that his findings were derived from a personal interview and physical
examination of Salts, the history given by Salts, and a review of prior medical records provided
to him. The medical records provided to Dr. Gammel did not include any medical records prior
to January 25, 2011. In his report, Dr. Gammel noted that Salts “admits having had a previous
similar injury or symptoms” and that she was “unsure about ever having difficulties before the
date of the injury/illness that are similar to the symptoms” then being experienced.
In his report, Dr. Gammel was asked to give an opinion, to a reasonable degree of
medical probability, concerning what injury Salts sustained in the alleged work-related incident
on September 12, 2010. Dr. Gammel noted that the history as related by Salts indicated
significant left upper extremity pain when struggling with a patient, and he opined that “[i]f the
history as related is accurate it is [his] opinion that . . . Salts sustained a permanent aggravation
of a pre-existing cervical spine condition.” Dr. Gammel specifically indicated that his
recommendations were given “with the assumption that the history given and medical records
provided are true, correct, and inclusive.”
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In May 2012, the Nebraska Workers’ Compensation Court conducted a hearing on Salts’
petition for compensation benefits. At the hearing, Salts testified in her own behalf and adduced
evidence in support of her claim for compensation.
Salts testified about her employment history and job duties. She testified about the
incident on September 12, 2010. She testified that she felt pain after the incident, between her
left shoulder and neck, and that she treated the pain with ice and pain relievers. She testified that
the pain “kept coming and going, coming and going,” and that it “never really got better, but it
didn’t really get worse until later on.”
She testified that she did not initially seek medical treatment, and she explained that she
“had like bumps and bruises throughout the years, so [she] never hardly ever made out incident
reports because [she] figured it was something that was going to come and go.” She did not
“think it was really serious, you know, so [she] just kind of blew it off.” She testified that any
repetitive work caused a flareup in her pain and that in January 2011, she sought treatment
because the pain was not improving.
Salts acknowledged that she had experienced neck pain approximately 6 months prior to
the September 12, 2010, incident, in March 2010. She testified that the pain in March had lasted
only approximately a week and that she had not experienced neck pain between that time and the
incident in September.
On cross-examination, Salts acknowledged that she had testified in a deposition that she
had been unsure whether she experienced an injury in September 2010 because, at the time, she
was already experiencing pain “all the time.” She also acknowledged that in her deposition she
had testified that after the September incident, the pain “kind of went away” after approximately
“a week.” She also acknowledged that nothing specific happened that caused the pain to return in
January 2011. Finally, she acknowledged that the symptoms she experienced in January
2011--pain close to her shoulder blades, up into her neck, causing her left hand to go numb--was
“different than the symptoms that [she] experienced” in September 2010.
When Salts was asked on cross-examination about why she did not complete any injury
report for the September 12, 2010, incident until January 2011, she answered that she “normally
never ever filled out any reports,” that “that just wasn’t [her] thing,” and that she “just never
filled out injury reports” because “they usually was something that would come and go.” She
acknowledged, however, that in August 2010, approximately 40 days before the September 2010
incident, she filled out an injury report about “a metal rod falling on [her] hand.” She completed
and filed the incident report within 6 minutes of the incident occurring.
Salts also acknowledged, in response to questions from the court, that despite allegedly
suffering a disk herniation in the September 12, 2010, incident, she was able to mop for 30 to 45
minutes every night at work and was able to continue lifting residents and walking with them
with “gait belts” until January 2011.
Salts also adduced testimony from a coworker. The coworker testified that he was
working on September 12, 2010, and that he recalled “a lot [of] commotion . . . happening
[between Salts and Susan] in the restroom and [that it] took a long time.” According to the
coworker, after the incident, Salts indicated that “her neck hurt.”
Mosaic and Sentry adduced testimony from a human resource manager. She testified that
Salts had pursued a transfer to a different position within Mosaic in November 2010. She
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testified that Salts had not indicated any physical accommodation or lack of ability to do her job
as a reason for seeking the transfer. She testified that Salts’ job duties did not change as a result
of the transfer, only the location of her work duties.
The human resource manager also testified about Salts’ reporting of the injury to Mosaic.
She testified that Salts had been to see a doctor in January 2011 and was told she had a neck
injury and that she went to the human resource manager to report the injury. She testified that
Salts initially referenced a previous history and referenced a number of care facilities, then she
stopped and left to check the “logbook,” and upon returning, she pinpointed that the incident
happened on September 12, 2010.
On August 29, 2012, the compensation court entered an order dismissing Salts’ petition
and denying compensation. The court noted that Salts alleged the injury occurred as a result of
the incident on September 12, 2010, but that her contemporary entry in the logbook about the
incident included no mention of any injury; that a self-evaluation completed by her the next day
included no mention of any injury; that during a visit to the medical center for right shoulder
pain in November 2010, she made no mention of the injury; and that despite an alleged disk
herniation, she was able to continue working and performing her normal job duties through
January 2011.
The compensation court also noted that the medical notes associated with her seeking
treatment in January 2011 referred to the pain having been “off and on for several weeks” and
specifically indicated that there was “no injury” reported. The court also noted that Dr. Noble’s
records indicated that Salts reported the symptoms beginning on September 12, 2010, and also
that she reported the symptoms beginning in May 2010. The court also noted that when Salts was
seen for a second opinion, she reported a date of injury of September 12, 2010, but that the
doctor’s notes indicated that she did not describe an “identifiable incident or injury.” Finally, the
court noted that when Salts sought treatment at the spine and pain center, she reported that the
symptoms began on September 12, 2010. The court recognized the causation opinions given by
Drs. Noble and Gammel.
The court noted that the parties had specifically been asked if there was any assertion of
repetitive motion or repetitive trauma injury in this case and that the parties had both indicated
that Salts’ assertion was of a specific event and injury. The court found that Salts had failed to
prove that the herniated disk was caused by a work-related accident on September 12, 2010. The
court, therefore, dismissed her petition for benefits. This appeal followed.
III. ASSIGNMENTS OF ERROR
Salts assigns two errors in this appeal. First, Salts asserts that the compensation court
erred “in rejecting the uncontradicted evidence of the medical experts.” Second, Salts asserts that
the court erred “in failing to find a compensable accident.”
IV. ANALYSIS
Although Salts assigns two errors, her assertions on appeal are really interrelated. Salts
challenges the compensation court’s finding that she failed to prove a compensable accident, and
she argues both that the court erred in rejecting the medical opinion testimony she presented and
in finding the evidence as a whole insufficient. We find that the medical evidence was refuted by
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the testimony, evidence, and factual circumstances in this case and find that the court did not
clearly err in finding that she failed to prove a compensable accident occurred in September 2010
and then caused her to stop working in January 2011.
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.
Hynes v. Good Samaritan Hosp., 285 Neb. 985, ___ N.W.2d ___ (2013); Clark v. Alegent Health
Neb., 285 Neb. 60, 825 N.W.2d 195 (2013).
On appellate review, the findings of fact 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. Clark v. Alegent Health Neb., supra. If the record contains evidence to substantiate the
factual conclusions reached by the trial judge in workers’ compensation cases, an appellate court
is precluded from substituting its view of the facts for that of the compensation court. Id. An
appellate court is obligated in workers’ compensation cases to make its own determinations as to
questions of law. Id.
The claimant has the burden to prove by a preponderance of the evidence that his or her
employment proximately caused the injury which resulted in a compensable disability. See
Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). The issue of causation of
injury or disability is one for determination of the trier of fact. Id. In testing the sufficiency of the
evidence to support the findings of fact in a workers’ compensation case, every controverted fact
must be resolved in favor of the successful party and the successful party will have the benefit of
every inference that is reasonably deducible from the evidence. Zwiener v. Becton
Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013).
In workers’ compensation cases, the appellate court is required to determine whether the
evidence was sufficient to support the compensation court’s decision, not whether the
compensation court could reasonably have concluded differently. See Pearson v.
Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013). The compensation
court is the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Id.In this case, Salts argues that the compensation court erred in finding that she failed to
demonstrate a compensable accident. She first argues that she presented uncontradicted medical
opinions from both Drs. Noble and Gammel indicating that her injury was caused by a
work-related accident in September 2010. She argues that the compensation court could not
disregard these opinions because they were not contradicted by evidence adduced by Mosaic. We
disagree with Salts’ conclusion that the medical evidence in this case was “uncontradicted,”
because there was ample evidence adduced that contradicted the assertion that she suffered a
work-related accident causing injury.
The trial judge in workers’ compensation cases is entitled to accept the opinion of one
expert over another and is not required to take an expert’s opinion as binding, but may either
accept or reject such an opinion. Id. Salts directs us to Mann v. City of Omaha, 211 Neb. 583,
592-93, 319 N.W.2d 454, 459 (1982), and the proposition of law contained therein that “where
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the medical testimony is uncontroverted, unimpeached, and is given in matters of medical
diagnosis which are peculiarly within the range of the knowledge of the expert, the compensation
court is not free to substitute its own diagnosis.” In that case, an employee brought an action
seeking benefits for a heart attack and alleged that his employment as a police officer had
involved sufficient stress greater than his nonemployment life to have been the cause of his heart
attack. The employee adduced medical evidence to support his claim. A medical doctor testified
that with reasonable medical certainty other risk factors could not have been equally contributing
factors, as well as his work stress. The employee also adduced evidence from a psychologist to
support his claim that his employment involved substantial stress, greater than that in his
nonemployment life.
In that case, the compensation court awarded benefits, but the review panel reversed. The
review panel concluded that other risk factors were equally at work in causing the heart attack.
On appeal, the Nebraska Supreme Court noted that the employer had offered no medical
evidence and that to dispute the medical evidence adduced by the employee, the City had merely
pointed to the existence of contributory risk factors that had been discounted by the employee’s
medical evidence. Under that circumstance, the Supreme Court ultimately concluded that the
review panel was not free to disregard the employee’s medical evidence. The court specifically
recognized that “[i]t is not true that in every case the uncontested opinion of an expert is binding
on the trier of fact,” but concluded that where the testimony was “based on firsthand knowledge,
[was] credible, and [had] no demonstrable weaknesses or failure of foundation, such testimony
cannot be ignored.” Id. at 593, 319 N.W.2d at 459.
The present case, however, is markedly different. Indeed, the Nebraska Supreme Court
recognized in Mann v. City of Omaha, supra, that not every uncontested opinion is binding on
the trier of fact. For example, in Murphy v. City of Grand Island, 274 Neb. 670, 742 N.W.2d 506(2007), the Supreme Court affirmed the compensation court’s having accepted one medical
opinion over two others. In so affirming, the Supreme Court specifically recognized that it was
within the discretion of the compensation court to disregard medical opinions based upon faulty
or incomplete information and to decline to accept their conclusions.
In the present case, Salts points to the medical opinions of Drs. Noble and Gammel. Salts
reported to Dr. Noble that her symptoms were first noticed on September 12, 2010, and that the
injury occurred at work. Dr. Noble opined in an October 2011 letter to Salts’ counsel that the
disk herniation was caused or aggravated by the workplace incident between Salts and Susan
described above in the factual background portion of this opinion.
Dr. Gammel also opined that Salts had suffered an aggravation of a preexisting condition
as a result of the workplace incident between Salts and Susan. Dr. Gammel based his findings on
a personal interview and physical examination of Salts, the history given by Salts, and the
portion of Salts’ medical records provided to him. He specifically indicated that his opinion and
recommendations were based on an assumption that Salts had provided an accurate history and
the medical records he had reviewed were inclusive.
Although Mosaic and Sentry did not adduce medical opinion testimony to refute the
opinions of Drs. Noble and Gammel, their opinions were not “uncontradicted” in this case. Their
opinions were contradicted by the evidence adduced concerning the circumstances of the alleged
injury and Salts’ actions following it.
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In this case, the evidence adduced indicated that on the date of the incident between Salts
and Susan, Salts made an entry in a “logbook” concerning the interaction. This contemporaneous
entry made no mention of any injury or pain. Salts testified that although she experienced left
shoulder pain “all that day, all that night” and for “probably a few days” thereafter, she did not
report the incident to anyone and she was able to continue working, performing sweeping and
mopping of 30 to 45 minutes every day and lifting and assisting patients with walking, for more
than 4 months, until January 2011.
Salts testified that she did not complete an injury report after the September 2010 incident
because she “normally never ever filled out any reports” and because “that just wasn’t [her]
thing.” Nonetheless, approximately 40 days prior to the alleged September 2010 injury, she did
fill out an injury report to report a metal rod falling onto her hand, and she filled out that report
within 6 minutes of the incident happening.
In the interim between the incident and the medical treatment sought in January 2011,
Salts sought medical treatment for right shoulder pain. When seeking and receiving that medical
treatment, she made no mention of any left shoulder pain and made no mention of the September
2010 incident.
Also in the interim between the incident and the medical treatment sought in January
2011, Salts pursued a transfer to a different position within Mosaic. When doing so, she never
mentioned the incident or any injury to the human resource manager, and indeed, the position
she sought a transfer to required the same job duties of sweeping and mopping and assisting
patients.
Even when Salts sought treatment for left shoulder pain in January 2011, she initially
reported that she had been experiencing the pain “off and on for several weeks” and made no
mention of the September 2010 incident. At trial, Salts testified that the symptoms she was
experiencing in January--for which she was seeking treatment--were “different” from the
symptoms allegedly experienced after the September incident.
All of this evidence concerning the incident, Salts’ actions following it, and the
circumstances of her eventual treatment provided a basis for the compensation court to find that
the medical opinions were not “uncontradicted.” Indeed, Dr. Gammel specifically limited his
opinion to an assumption that the history available to him was accurate, and such history was
largely based on Salts’ reporting that her injury was a result of a workplace incident. Based on
the evidence adduced, the question of causation was a fact question, and there was ample
evidence to support the compensation court’s conclusion that Salts failed to prove that the injury
for which she sought treatment in January 2011 was not caused by a work-related accident
occurring in September 2010.
In this case, there was a specific representation to the compensation court that Salts was
not alleging any kind of repetitive trauma, but was specifically alleging that the incident in
September 2010 led to her stopping work in January 2011. There was evidence to support the
compensation court’s finding that Salts failed to prove the causal connection between her injury
and her employment. We are not free to substitute our own conclusions for the compensation
court’s on this fact question, and we find no merit to Salts’ assertions on appeal.
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V. CONCLUSION
The compensation court was not clearly wrong in finding that Salts failed to prove the
causal connection between her injury and her employment. We affirm.
AFFIRMED.
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