Duros v. Diversified Enters.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
DUROS V. DIVERSIFIED ENTERS.
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).
CYNTHIA DUROS, APPELLANT AND CROSS-APPELLEE,
V.
DIVERSIFIED ENTERPRISES, INC., AND DAKOTA TRUCK UNDERWRITERS,
APPELLEES AND CROSS-APPELLANTS.
Filed November 12, 2013. No. A-13-115.
Appeal from the Workers’ Compensation Court: THOMAS E. STINE, Judge. Affirmed.
Holly T. Morris, of Shasteen & Morris, P.C, L.L.O., for appellant.
David A. Dudley and Robert B. Seybert, of Baylor, Evnen, Curtiss, Grimit & Witt,
L.L.P., for appellees.
INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Cynthia Duros appeals from the decision of the workers’ compensation court awarding
her medical benefits and temporary total disability benefits from November 12, 2010, through
January 12, 2011. In her appeal, Duros argues that the compensation court erred in finding her
benefits should cease January 12. Diversified Enterprises, Inc., doing business as Interim
Healthcare, and Dakota Truck Underwriters (collectively Interim) cross-appeal. In Interim’s
cross-appeal, it argues that the compensation court erred in finding Duros suffered a work-related
injury. We determine that competent evidence supported the compensation court’s findings and
therefore affirm.
BACKGROUND
Duros’ compensation claim arose as a result of neck, arm, shoulder, hip, and hand pain
she began experiencing sometime during the fall of 2010. During this time, she maintained two
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jobs. She worked as a busdriver for special needs children at a public school and as a home
health aide for Interim Healthcare. Her job as a busdriver did not require her to perform much
physical labor, but she was required to push, pull, and rearrange wheelchair-bound children
while they were getting on and off the bus. Duros’ job as a home health aide, however,
demanded a medium level of physical exertion. Many of Duros’ patients were immobile, and her
job required her to frequently lift, carry, push, and pull up to 50 pounds, as well as reposition and
transfer patients.
Although Duros could not remember exactly when she began experiencing symptoms,
she noted that on one occasion, while attempting to position a patient, she had a distinctly painful
experience. She did not report the pain immediately because she expected it to subside. The pain
persisted into November 2010, however, causing Duros to meet with her supervisor at Interim in
order to request time off. At that meeting, Duros explained that she had been experiencing pain
for some time. Duros did not point to a specific injury incident, but told her supervisor that she
felt like the cumulative effect of pushing and pulling patients was “wearing out” her body.
In response to the meeting, Duros’ supervisor referred Duros to Dr. Arthur West for
evaluation. Duros told West that she injured herself while transferring a patient and indicated
that the injury had occurred about 3 weeks prior to her November 12, 2010, appointment. Based
on that history, Dr. West estimated Duros was injured around October 20 and that her injury was
caused by her employment with Interim Healthcare.
After conservative treatment failed, Dr. West referred Duros to Dr. James Gill. During
Dr. Gill’s evaluation, Duros informed him that she suffered an injury while lifting a patient on
November 10, 2010. Based on that specific history, Dr. Gill opined that the lifting incident
caused her pain, but also diagnosed her with an independent underlying degenerative condition,
cervical spondylosis. According to Dr. Gill, cervical spondylosis results from the natural aging
process, but injuries can “exacerbate” or cause “symptomatic” problems. Based on Duros’ report
that she was injured during work on November 10, Dr. Gill concluded that her work injury
“exacerbated” her underlying spondylosis and caused her to have symptoms. He also admitted
that even if the date was wrong, as long as Duros suffered an injury from a specific event that
occurred at work, her symptoms were caused by that work injury.
Dr. Gill treated Duros with an interlaminar epidural in January 2011. The next week,
when Dr. Gill followed up, he noted that although Duros was not symptom-free, she had good
relief from the injection. He released her to work without restrictions and planned to monitor her
symptoms. If symptoms recurred, Dr. Gill planned to proceed with surgery.
Duros’ symptoms were worse by her next appointment, February 9, 2011. At that
appointment, Dr. Gill noted that the injection helped Duros initially, but “since that time she has
had re-exacerbation of her symptoms” and they had returned to their preinjection level. On
February 16, Duros contacted Dr. Gill’s office and stated that she had new symptoms, including
pain in her left hip, right arm, and right shoulder. She attributed those symptoms to her job as a
busdriver. Duros contacted Dr. Gill’s office on two more occasions in February and March to
report pain she again associated with her job as a busdriver. Duros eventually had surgery, which
successfully relieved her symptoms.
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Following surgery, Duros sought workers’ compensation benefits, claiming that she
sustained injury in an accident arising out of and in the course of her employment with Interim
Healthcare.
At trial, Duros testified that she began experiencing pain in her neck in October 2010.
She further testified that on November 10, she was lifting a client and experienced a lot of pain
in her neck and down her left arm. The exact date of the alleged injury is conflicting, since she
told Dr. Gill she injured herself on November 10 and told Dr. West the injury occurred in
October 2010. When questioned as to the accuracy of this date, Duros admitted that if the record
showed she reported this injury on November 10, that would be wrong. Evidence was presented
that Duros did not work November 10. Her last day of employment with Interim Healthcare was
November 9.
Interim’s expert, Dr. Charles Taylon, performed an independent evaluation of Duros. He
noted that Duros’ prior medical records established that she suffered a cervical strain in 2008
with resultant neck pain. He further noted that an MRI report discussed degenerative changes
and broad-based disk protrusions. Dr. Taylon stated that the medical records did not disclose a
single event where Duros later injured her neck. Based on this history, Dr. Taylon concluded that
it was not clear Duros’ injury occurred while she was working and that “more likely than not,
this was an ongoing continuation of the wear and tear process.” As such, Dr. Taylon opined that
Duros’ need for surgery was “a natural progression of a pre-existing condition rather then [sic] a
work related event.”
The compensation court determined that Duros suffered a work-related injury, but that
her injuries resolved on January 12, 2011, when she was released to work without restrictions.
The court found that the symptoms Duros experienced after 2011 were due to an independent
event, based upon Dr. Gill’s February 9 entry that Duros had a “re-exacerbation of her
symptoms.” Based on this finding, the trial court awarded Duros temporary disability benefits
from November 12, 2010, through January 12, 2011.
This timely appeal followed.
ASSIGNMENTS OF ERROR
On appeal, condensed and restated, Duros argues that the trial court erred in finding that
Duros’ work-related injury resolved on January 12, 2011, and in failing to award benefits after
that date. On cross-appeal, Interim argues that the trial court erred in finding that Duros suffered
a work-related injury and in finding she established a causal link between her alleged
work-related injury and her medical condition.
ANALYSIS
Finding Duros’ Work-Related Injury
Resolved by January 12, 2011.
Duros argues that the compensation court erred in finding her work-related injury
resolved by January 12, 2011. In particular, Duros argues that no competent evidence supported
the compensation court’s interpretation of Dr. Gill’s records to mean Duros suffered an
intervening event and that Interim failed to present evidence of an intervening event. Because the
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compensation court’s determination was supported by competent evidence, this assignment of
error is without merit.
Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2012), a judgment of the Workers’
Compensation Court may be modified, reversed, or set aside based on the ground that there is not
sufficient competent evidence in the record to warrant the making of the order, judgment, or
award. Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013).
Competent evidence means evidence that tends to establish the fact in issue. Id.
In determining whether to affirm, modify, reverse, or set aside a judgment of the
Workers’ Compensation Court, an appellate court will not disturb the findings of fact of the trial
judge unless clearly wrong. See id. In testing the sufficiency of the evidence to support the
findings of fact by the Workers’ Compensation Court, the evidence must be considered in the
light most favorable to the successful party, 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. Id.
The trial court determined that Duros sustained an intervening event that reexacerbated
her injuries. It made this factual finding based upon the language of Dr. Gill’s February 9, 2011,
office notes which referenced a “re-exacerbation” of Duros’ symptoms. In its award, the trial
court stated:
Although the [c]ourt makes no finding with respect to what activities may have
exacerbated [Duros’] condition and caused her symptoms to reappear, the un-refuted
testimony is that [Duros] was no longer working for [Interim Healthcare] after November
9, 2010. Thus, there is no activity between January 5, 2011, and February 9, 2011, that
[Duros] was performing for [Interim Healthcare] that could have caused the aggravation
and re-exacerbation of her symptoms.
The language of the February 9, 2011, entry supports the trial court’s finding of fact that
Duros experienced an intervening event. Dr. Gill used the word “exacerbate” many times in his
deposition testimony that was offered at trial, and did so in the context of causation. His opinion
was that Duros suffered from spondylosis and that the event of November 10, 2010,
“exacerbated” it. Therefore, to interpret his February 9, 2011, note that her symptoms were
“re-exacerbated” to mean that a separate event occurred, is not clearly wrong. The fact that
Duros continued to work as a busdriver and her subsequent complaints later in February of pain
which she, herself, attributed to her job as a busdriver, further support the trial court’s
interpretation of Dr. Gill’s entry.
Duros claims that the trial court’s interpretation disregards other portions of Dr. Gill’s
records and deposition testimony. She claims that the February 9, 2011, entry must be read in
view of the larger context of Dr. Gill’s entire opinion. As stated above, however, Dr. Gill’s
deposition testimony lends credence to the compensation court’s interpretation, given Dr. Gill’s
previous use of the word “exacerbate.” While the February 9 entry could also be read to simply
mean a “worsening” of Duros’ symptoms, we are required to resolve every potential conflict or
inference in favor of the successful party. Under this standard of review, we cannot find that no
competent evidence supported the Workers’ Compensation Court’s finding.
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Duros also argues that Interim failed to present evidence of an intervening event. We note
that Interim pled an intervening event as a defense in its answer. Based upon the medical
evidence outlined above, there was competent evidence in the record that an intervening event
occurred even though the compensation court was unable to specifically identify what that event
was. We therefore reject this argument.
Cross Appeal: Work-Related Injury.
On cross-appeal, Interim argues that the compensation court erred in finding Duros
sustained an accident and injury arising in the context of her employment. We disagree.
In Interim’s cross-appeal, it relies on Duros’ conflicting testimony to argue that the trial
court erred in finding Duros sustained a work-related injury. In particular, Interim points out that
Duros initially informed her supervisor that she thought her pain was the result of old age and
opined that a variety of factors could be causing the pain. Duros’ reports of her pain at times
conflicted; she proved to be a poor historian. Although we agree that Duros was a poor historian,
we must uphold the compensation court’s factual determinations if they are supported by
competent evidence. Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233
(1999). In this case, the compensation court made detailed factual findings about Duros’ injury,
and those findings are supported by competent evidence.
While making its factual findings, the court took note of Duros’ history of conflicting
explanations for her injury. Despite her conflicting explanations, the court found her testimony
regarding suffering a work-related injury at some point in October 2010 to be credible. Dr. West
determined her injury date was around October 20, given the estimates she related to him. The
trial court had the discretion to accept Duros’ testimony and Dr. West’s estimation that she
suffered an injury while lifting a patient on October 20. Because the record contained sufficient
evidence to show that Duros suffered a work-related injury, this assignment of error by Interim
on cross-appeal is without merit.
Insufficient Causation Evidence.
In Interim’s cross-appeal, it also assigns that the trial court erred as a matter of law in
finding that Duros’ expert medical opinions were sufficient to establish causation between the
alleged injury and her medical condition. Interim argues that neither Dr. West nor Dr. Gill
provided sufficient testimony to prove causation. We disagree.
Interim argues that Dr. West’s opinion is insufficient to support causation, because he
relies on the assumption that Duros was injured lifting a patient sometime around October 20,
2010. Interim says this assumption is incorrect because there was no evidence that Duros was
injured then. Duros reported to Dr. West on November 10 that she was injured a few weeks
earlier, so it was proper for Dr. West to estimate the date of injury based upon this report.
Furthermore, while Dr. Gill’s testimony is not completely clear with respect to causation, his
testimony supports the compensation court’s finding. Dr. Gill explained that Duros had an
underlying condition that was exacerbated based on an injury at work. While he carefully
explained that his opinion was based on the history given to him by Duros, that she suffered a
work-related injury on November 10, the exact date of injury was not the most important part of
his analysis. He admitted that his opinion would be unchanged if he were to learn that the injury
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occurred on a different date. Because evidence in the record supported the compensation court’s
decision, this assignment of error by Interim on cross-appeal is without merit.
CONCLUSION
Because we determine that the trial court’s findings of fact were supported by competent
evidence, we find no merit to either Duros’ assignments of error on appeal or Interim’s
assignments of error on cross-appeal. Accordingly, we affirm the award of the compensation
court.
AFFIRMED.
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