Jurgenson v. International Paper Co.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
JURGENSON V. INTERNATIONAL PAPER CO.
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).
CHAUNTELLE JURGENSON, APPELLEE,
V.
INTERNATIONAL PAPER COMPANY, APPELLANT.
Filed August 1, 2017. No. A-16-1069.
Appeal from the Workers’ Compensation Court: JAMES R. COE, Judge. Affirmed.
Timothy E. Clarke and Thomas B. Shires, of Baylor, Evnen, Curtiss, Grimit, & Witt,
L.L.P., for appellant.
Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C., L.L.O., for appellee.
INBODY, PIRTLE, and RIEDMANN, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
International Paper Company (IPC) appeals from an award of the Workers’ Compensation
Court determining that Chauntelle Jurgenson had suffered an injury to her body as a whole in the
course of her employment and awarding her temporary and permanent disability benefits. For the
reasons that follow, we affirm.
II. BACKGROUND
Jurgenson was employed at IPC as an assistant machine operator. While working on May
21, 2008, an 80- to 100-pound die board fell onto her right foot. Despite the fact that she was
wearing steel-toed boots, the knives on the die board penetrated her boot. Immediately following
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this incident, Jurgenson assessed the damage to her foot but continued working for the remainder
of the day.
The following day, she informed her employer of what had happened and sought medical
treatment. At that time, Jurgenson’s foot was very painful with swelling and bruising. IPC took
her to CompChoice, where a physician examined her foot, wrapped it, and sent her back to work
on light duty. The light duty restrictions were removed the next day.
Jurgenson continued to experience pain in her foot following her visit to CompChoice. She
next sought medical attention approximately two months later, on or around August 27, 2008, after
her foot gave out and her employer took her back to CompChoice. Jurgenson testified that although
her foot had been painful ever since the incident in May, she did not seek treatment sooner because
she could not afford it. The physician at CompChoice referred Jurgenson to her primary care
doctor, Dr. Ed Mantler.
Following her visit with Dr. Mantler, Jurgenson was referred to several other physicians
who recommended and performed two surgeries on her foot, in September 2008 and January 2009.
Jurgenson testified that neither surgery alleviated her symptoms.
A representative for IPC sent Jurgenson to Dr. Michael O’Neil in April 2009. After an
examination, Dr. O’Neil diagnosed her with complex regional pain syndrome in her right foot as
a result of her work injury and recommended that she undergo sympathetic nerve blocks, which
she did. Jurgenson testified that these blocks did not help her symptoms.
Jurgenson then met with a different physician for ongoing treatment and pain management.
This physician prescribed medication, first methadone and later Suboxone, to alleviate her
symptoms. Jurgenson was on medication for the following five years. She stated that the
medication helped her sleep at night, but her symptoms were unchanged. During this time, her foot
continued to be sensitive and she had difficulty with everyday tasks such as showering, walking,
wearing certain shoes and socks, and lying under bed sheets. Jurgenson said that she could only
walk two to three blocks at a time before her foot would become so sore and tender that she would
need to take a break. She testified that her foot was sensitive on the top and side and that it mottled.
While the sensitivity did not spread up her leg, Jurgenson said that there was numbness and her
leg would ache.
In June 2010, Jurgenson underwent a functional capacity evaluation. The physical therapist
who administered the evaluation found that Jurgenson was able to work at a light to medium
physical demand level. He also noted that “Jurgenson’s findings were not always consistent with
anatomical and physiological principles” and that she had passed 39 percent of the validity criteria,
“indicating very poor effort and invalid test results that appear to represent a minimal level of
functional ability.” At trial, Jurgenson testified that she had made a good effort during that
evaluation but she had struggled with it because her foot was sore and she was not having a “good”
day.
Dr. O’Neil examined Jurgenson a second time in June 2010. In a report dated June 24, Dr.
O’Neil opined that she had reached maximum medical improvement. He found that Jurgenson had
a 25-percent permanent physical impairment to her right lower extremity, which translated to a
10-percent permanent impairment of the whole body. Dr. O’Neil opined that Jurgenson would not
be capable of work involving prolonged periods of standing, walking, or climbing due to her
complex regional pain syndrome.
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Jurgenson testified that she continued taking Suboxone for the next several years even
though her symptoms remained the same. In February 2014, she saw a physician who suggested
she cease taking the medication and who referred her to Dr. Griffith Evans to discuss the possibility
of a spinal cord stimulator. Jurgenson began treatment with Dr. Evans on September 30. After
determining that Jurgenson would be a good candidate for a spinal cord stimulator trial, Dr. Evans
implanted two spinal cord stimulator leads in November. Jurgenson experienced relief after the
implantation of leads. Dr. Evans implanted a permanent spinal cord stimulator on December 2.
Following the implantation of the stimulator, Jurgenson testified that her symptoms and
pain decreased, although she still had some ongoing symptoms, including bothered nerves between
her toes, difficulty lying under the bed sheets, and difficulty walking on “bad” days. Jurgenson
saw an associate of Dr. Evans on March 23, 2015 for a follow-up examination after the
implantation procedure. At that time, Jurgenson reported that she had experienced 50- to
75-percent pain relief, she was no longer taking Suboxone, and her overall function had noticeably
improved. Nonetheless, Dr. Evans opined that Jurgenson should be restricted from “rigorous
physical activity with extension of her arms well over her head repeatedly” as such movements
could cause lead migration requiring lead revision.
In October 2015, Jurgenson underwent an examination by Dr. D.M. Gammel at the request
of her attorney. Dr. Gammel found that she had complex regional pain syndrome of her right lower
extremity and 25-percent impairment of that extremity. In his report, Dr. Gammel stated that he
agreed with the restrictions placed on Jurgenson by Dr. Evans, including a restriction on repetitive
or vigorous lifting or hand raising above her head, as well as avoiding lifting and twisting.
Karen Stricklett conducted a loss of earning capacity analysis for Jurgenson in 2015 and
provided supplementary reports in 2016. Her analyses considered the opinions of Drs. Mantler,
O’Neil, Evans, and Gammel with regard to Jurgenson’s loss of earning capacity. Dr. Mantler found
that Jurgenson was not competitively employable and therefore had a 100-percent loss of earning
capacity. Dr. O’Neil opined that Jurgenson had suffered a scheduled member injury rather than an
injury to the body as a whole, and accordingly had no loss of earning capacity. Dr. Gammel
diagnosed Jurgenson with complex regional pain syndrome which affected her right lower
extremity and he agreed with restrictions outlined by Dr. Evans. Stricklett found that relying on
the reports of Dr. Evans and Gammel resulted in a 50-percent loss of earning capacity. In her
supplemental report, considering the opinion of Dr. Mantler and Jurgenson’s own self-reported
limitations, Stricklett opined that Jurgenson would not be competitively employable, and therefore
sustained a 100-percent loss of earning capacity. In her final supplemental loss of earning capacity
report, Stricklett opined that if consideration is given to Dr. Evans’ opinions and the restrictions
recommended by Dr. Gammel, Jurgenson would experience a 50-percent loss of earning capacity.
Jurgenson filed a complaint against IPC seeking payment of disability benefits. Following
trial, the court ruled in favor of Jurgenson, finding that she had suffered an injury to her body as a
whole and that she was entitled to 93 5/7 weeks of temporary total disability benefits and 206 2/7
weeks of permanent partial disability benefits for a 50-percent loss of earning capacity. IPC now
appeals.
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III. ASSIGNMENTS OF ERROR
IPC assigns, restated, that the trial court erred in (1) determining that Jurgenson suffered
an injury to the body as a whole; (2) finding that Jurgenson sustained a 50-percent temporary loss
of earning capacity from and including June 25, 2010 to and including September 29, 2015; and
(3) failing to render a well-reasoned decision in violation of Nebraska Workers’ Compensation
Rule 11(A).
IV. STANDARD OF REVIEW
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), an appellate court may only
modify, reverse, or set aside a Workers’ Compensation Court decision when (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. Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016).
Determinations by a trial judge of the Workers’ Compensation Court will not be disturbed on
appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in
light of the evidence. Id. Factual determinations by a workers’ compensation trial judge have the
effect of a jury verdict and will not be disturbed unless they are clearly wrong. Gardner v.
International Paper Destruction & Recycling, 291 Neb. 415, 865 N.W.2d 371 (2015). In testing
the sufficiency of the evidence to support the findings of fact by the workers’ compensation court,
every controverted fact must be considered in the light most favorable to the successful party and
that party must be given the benefit of every inference reasonably deducible from the evidence. Id.
V. ANALYSIS
1. INJURY TO BODY AS WHOLE
IPC argues that the trial court erred in finding that Jurgenson had suffered an injury to her
body as a whole, rather than an injury to a scheduled member, and was therefore entitled to
permanent benefits based on her loss of earning capacity. IPC claims that Jurgenson suffered
impairment only to her right lower extremity and that her physical restrictions were related to this
extremity, even when considering the implantation of the spinal cord stimulator. IPC argues that
no expert opined that Jurgenson had suffered impairment to her body as a whole and that the only
whole body impairment ratings were conversions from ratings specific to her right lower
extremity. In the absence of such expert testimony, IPC argues that the trial court should have
found injury to a scheduled member rather than to the body as a whole. We disagree.
A claimant is not entitled to an award for loss of earning power when his or her injury is
limited to a specific body member, unless some unusual or extraordinary condition as to other
members or parts of the body develops as the result of the injury. Moyera v. Quality Pork
International, 284 Neb. 963, 825 N.W.2d 409 (2013). The test for determining whether a disability
is to a scheduled member or to the body as a whole is the location of the residual impairment, not
the situs of the injury. Id. Along with causation, the issue of whether a claimant has sustained a
permanent impairment that has resulted in a loss of earning power is a question of fact to be
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determined by the Workers’ Compensation Court, which will be upheld on appeal absent clear
error. Stacy v. Great Lake Agri Marketing, Inc., 276 Neb. 236, 753 N.W.2d 785 (2008).
IPC argues that, due to the subjective nature of the injury, Jurgenson was required to
present expert opinion as to whole body impairment. See Green v. Drivers Management, Inc., 263
Neb. 197, 639 N.W.2d 94 (2002). IPC claims that no physician opined that Jurgenson had suffered
injury or impairment to her body as a whole. Specifically, IPC points to the findings of Drs. O’Neil
and Gammel, who found that Jurgenson suffered a 25-percent impairment to her right lower
extremity, and Dr. O’Neil’s finding that Jurgenson’s permanent restrictions should be limited to
that extremity. IPC argues that Dr. Evans, the physician who performed the spinal cord stimulator
implantation procedure, made no findings as to permanent impairment. While IPC concedes that
Jurgenson does have certain restrictions as a result of the stimulator being implanted in her spine,
it claims that such restrictions are related to the injury to her right lower extremity and do not result
in any additional impairment.
Dr. Evans opined, and Dr. Gammel agreed, that Jurgenson should not engage in repetitive
lifting or extreme stretching of the spine, or lifting or twisting, nor should she engage in rigorous
physical activity wherein her arms are repeatedly extended over her head, as such movements
could cause lead migration that would require lead revision. While Dr. Evans did not explicitly
state that Jurgenson had suffered an impairment to her body as a whole, the restrictions he imposed
affected a significant portion of her body, including her upper body and torso. Such restrictions go
well beyond affecting only her right lower extremity.
The trial court found “in a very close question that [Jurgenson] suffered a body as a whole
type injury due to the implantation of the leads into [Jurgenson’s] spine for the spinal cord
stimulator” and the restrictions placed on Jurgenson by Dr. Evans, which included avoiding
overhead lifting, vigorous activity, and flexion of the spine in order to protect the leads from the
stimulator in her spine. The court found that this amounted to a body as a whole restriction and
impairment. While the recommendations and findings of impairment of other physicians, such as
Dr. O’Neil, are specifically related only to Jurgenson’s right lower extremity, the trial court
ultimately found Dr. Evans’ recommendations to be credible and relied upon them in finding that
Jurgenson suffered an injury to her body as a whole. See Risor v. Nebraska Boiler, 277 Neb. 679,
765 N.W.2d 170 (2009). Such a finding of fact will be upheld on appeal absent clear error.
Contrary to IPC’s claim, Dr. Evans’ findings and recommendations do support a finding of injury
to Jurgenson’s body as a whole, rather than solely to her right lower extremity. Accordingly, we
find no clear error.
2. FINDING OF 50-PERCENT TEMPORARY
LOSS OF EARNING CAPACITY
IPC argues that the trial court erred in finding that Jurgenson suffered a temporary
50-percent loss of earning capacity from June 25, 2010 to September 29, 2014. Specifically, IPC
claims that the restrictions resulting in a 50-percent loss of earning capacity did not exist prior to
2015 and that the court erred in making a finding of temporary partial disability immediately after
a finding of maximum medical improvement.
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(a) 50-Percent Loss of Earning Capacity
IPC claims that the trial court erred in finding that Jurgenson had suffered a 50-percent loss
of earning capacity during this period because the restrictions that led to such a loss of earning
capacity did not exist until 2015, after the spinal cord stimulator was inserted. IPC argues that,
while several physicians had made findings as to whether Jurgenson suffered a loss of earning
capacity and to what degree she had suffered such a loss during this period, no physician found
that Jurgenson had suffered a loss of 50 percent prior to such findings by Drs. Gammel and Evans
in early 2015. Therefore, IPC claims that the evidence does not support the trial court’s findings
of such a loss of earning capacity between June 25, 2010 and September 29, 2014.
However, Dr. Mantler diagnosed Jurgenson with complex regional pain syndrome and
opined in September 2011 that she could only work two hours a day. Based upon this restriction,
Stricklett opined that Jurgenson would have a 100-percent loss of earning capacity. Dr. O’Neil
agreed with the complex regional pain syndrome diagnosis and opined that Jurgenson would not
be capable of work requiring any significant amount of standing, walking, and climbing. Stricklett
did not assess a loss of earning capacity based on his opinion, however, because he considered her
injury to have resulted in a single member impairment.
The determination of an employee’s loss of earning power is a question of fact for the trial
court. Underwood v. Eilers Mach. & Welding, 6 Neb. Ct. App. 631, 575 N.W.2d 878 (1998). In
determining the degree of an employee’s loss of earning power, the Nebraska Supreme Court has
found that disability is not always commensurate with medical restrictions or impairment ratings.
Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002). Furthermore, an
employee’s disability as the basis for compensation under either total or partial disability is
determined by the employee’s diminution of employability or impairment of earning power or
earning capacity, and such disability is not necessarily determined by a physician’s evaluation and
assessment of the employee’s loss of bodily function. Id. Accordingly, the court has held that,
while medical restrictions or impairment ratings are relevant to a claimant’s disability, the trial
judge is not limited to expert testimony to determine the degree of disability and instead may rely
on the testimony of the claimant. Tchikobava v. Albatross Express, LLC, supra.
At trial, Jurgenson testified that she experienced symptoms and pain throughout the
duration of the relevant time period, including pain and sensitivity in her foot. She testified that
she could not walk more than a couple blocks at a time and that, due to the sensitivity, she
experienced difficulty with everyday tasks such as taking a shower, lying under the bed sheets,
walking, and wearing socks and certain footwear. She testified that she was taking her prescribed
medication at the time but her symptoms persisted.
In addition, the functional capacity evaluation, performed in June 2010, found that
Jurgenson could work at a light to medium physical demand level. While the evaluation stated that
“Jurgenson’s findings were not always consistent with anatomical and physiological principles,”
and that the results of the validity criteria of her exam indicated a “very poor effort and invalid test
results,” Jurgenson testified at trial that she had made a good effort during the exam but had
struggled with it because she was sore and “it wasn’t a good day” for her foot.
We find that Mantler’s opinion, the functional capacity evaluation, and, particularly,
Jurgenson’s testimony support the trial court’s finding that Jurgenson suffered a 50-percent loss
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of earning capacity from June 25, 2010 to September 29, 2014. Accordingly, we find no merit to
this assignment of error.
(b) Temporary Partial Disability Benefits
IPC claims that the trial court erred in finding that Jurgenson suffered temporary partial
disability from June 25, 2010 to September 29, 2014 because it found that Jurgenson had reached
maximum medical improvement on June 24, 2010. Accordingly, IPC argues that any finding of
disability after maximum medical improvement has been reached must, as a matter of law, be
permanent rather than temporary.
Jurgenson argues that this issue is moot because the parties stipulated to an average weekly
wage of $725.67 for both temporary and permanent disability calculations. We agree.
The calculation of partial disability benefits is governed by Neb. Rev. Stat. § 48-121(2)
(Reissue 2010), which states that:
This compensation shall be paid during the period of such partial disability but not beyond
three hundred weeks. Should total disability be followed by partial disability, the period of
three hundred weeks mentioned in this subdivision shall be reduced by the number of
weeks during which compensation was paid for such total disability.
However, the statute does not differentiate between disability benefits that are temporary or
permanent in nature. In the present case, the trial court used this formula to determine that
Jurgenson was entitled to 206 2/7 weeks of partial disability benefits for a 50-percent loss of
earning capacity. This calculation would have been the same whether the trial court treated the
partial benefits as temporary or permanent. Indeed, IPC concedes in its reply brief that “[i]f it is
determined that Appellee suffered an injury to her body as a whole, Appellant acknowledges that
pursuant to the [c]ourt’s October 14, 2016 [a]ward Appellee is entitled to 93 5/7 weeks of
temporary total disability and 206 2/7 weeks of permanent disability benefits at a rate of $241.89
based on a 50 percent loss of earning capacity.” Reply brief for appellant at 11. As discussed in
the analysis of IPC’s first assignment of error, we found that Jurgenson did suffer an injury to her
body as a whole. Accordingly, IPC admits that Jurgenson was entitled to the benefits as awarded
by the trial court.
Because § 48-121(2) treats temporary and permanent partial disability benefits in the same
manner and the parties stipulated to the same average wage under either classification, we find that
the amount of indemnity owed Jurgenson does not differ regardless of whether the disability is
classified as temporary or permanent in this instance. Therefore, while it may have been incorrect
to classify the disability as temporary, it is not reversible error.
3. FAILURE TO RENDER WELL-REASONED DECISION
IPC’s final assigned error is that the decision of the trial court did not “provide the basis
for a meaningful appellate review” or specify the evidence relied upon, in violation of Nebraska
Workers’ Compensation Court Rule 11(A).
Workers’ Compensation Court Rule 11(A) states, in relevant part, that “[d]ecisions of the
court shall provide the basis for a meaningful appellate review. The judge shall specify the
evidence upon which the judge relies.”
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The trial court specifically discussed the evidence it relied upon to support its finding that
Jurgenson suffered an injury to her body as a whole that resulted in a 50-percent loss of earning
capacity. It discussed the treatment Jurgenson underwent with various physicians, the physicians’
opinions as to her injury and loss of earning capacity, the functional capacity evaluation, the loss
of earning capacity analysis, and Jurgenson’s own testimony.
IPC also claims that the trial court’s order violated Rule 11(A) because the court stated that
Jurgenson had sustained a 50-percent temporary partial loss of earning capacity for the period from
June 24, 2010 to September 29, 2014 but never addressed such benefits again nor did it order the
payment of any such benefits. However, the trial court addressed all partial disability benefits
together in its finding that Jurgenson was entitled to 206 2/7 weeks of partial benefits. Due to the
parties’ stipulation to an average weekly wage of $725.67 for both temporary and permanent
benefits, it did not matter whether such benefits were classified as either temporary or permanent,
and it was therefore not necessary for the court to make such a classification. It is apparent from
the order that the 206 2/7 weeks of partial benefits encompassed all partial benefits to which
Jurgenson was entitled, including from June 24, 2010 to September 29, 2014.
We find that the trial court did specify the evidence upon which it relied in making its
findings and that its decision provided the basis for a meaningful appellate review. Accordingly,
we find no error.
VI. CONCLUSION
Based on our review of the record, we reject IPC’s assignments of error and therefore
affirm the award.
AFFIRMED.
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