Carmenate v. Wal-Mart Stores, Inc.

Madalys Perez Carmenate, Appellant, v. Wal-Mart Stores, Inc., Appellee.

No. A-22-234

Court of Appeals of Nebraska

November 8, 2022

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).

Appeal from the Workers' Compensation Court: JohnR. Hoffert Judge. Affirmed.

Jon Rehm, of Rehm, Bennett, Moore & Rehm, P.C., L.L.O., for appellant.

Jenna M. Christensen, of Caswell, Panko, & Westerhold, L.L.C. for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

BISHOP, JUDGE.

I. INTRODUCTION

Madalys Perez Carmenate (Carmenate) filed a petition in the Workers' Compensation Court seeking an award of benefits for injuries that occurred during her employment with Wal-Mart Stores, Inc. (Walmart). Following trial, the compensation court awarded Carmenate temporary total disability for 21.1429 weeks and permanent partial disability (PPD) for 3.5 weeks; it also ordered Walmart to pay Carmenate's medical expenses related to the treatment of her left wrist injury. Carmenate appeals the court's award, claiming her PPD benefits should have been based on a loss of earning capacity. She also challenges the court's decision not to award her future medical expenses. We affirm.

II. BACKGROUND

1. Injury and Claim

Carmenate began employment as a merchandise stocker with Walmart in May 2015. She was injured on July 23, 2020, when a box of condensed milk cans fell off a shelf. As she attempted to stop the box from falling, it hit her left wrist. She was later diagnosed with De Quervain's tenosynovitis and was found to have a partial tear of the scapholunate ligament. She eventually underwent a left first dorsal compartment release surgery in November 2020.

On April 26, 2021, Carmenate filed a petition in the compensation court seeking compensation for injuries sustained in the course of her employment with Walmart on July 23, 2020. She claimed injuries to her left arm, wrist, shoulder, and elbow. Carmenate sought temporary disability benefits, permanent disability benefits, payment of medical expenses, vocational rehabilitation benefits, waiting time penalties, attorney's fees, and interest. In its answer, Walmart admitted that Carmenate experienced an "accident" arising out of and in the course of her employment with Walmart on July 23, but denied the nature and extent of the injuries and disability alleged by Carmenate.

2. Trial

Trial was held on December 21, 2021. The parties had reached agreement on several issues, including that Carmenate sustained a left wrist injury arising out of and in the course of her employment on July 23, 2020. However, whether Carmenate had suffered any additional injuries from the July 2020 incident was contested. Carmenate testified with the help of an interpreter and various exhibits were received into evidence.

(a) Left Wrist Injury

Carmenate testified that she began working for Walmart in May 2015 as a full-time merchandise stocker. She typically worked overnight shifts lifting, carrying, and opening boxes weighing about 15 to 20 pounds.

On July 23, 2020, Carmenate was placing a box of condensed milk cans on a shelf and the box fell. As she raised her arms to stop the box from striking her face, the box hit her left wrist and she felt "a lot of pain and had to hold [her] wrist." Immediately following her injury, Carmenate's supervisor took her to an urgent care center where Carmenate was prescribed Tylenol and instructed to wear a splint. The treating medical provider restricted Carmenate from lifting or carrying objects weighing more than 3 pounds for more than 8 hours per day or grasping, reaching, overhead reaching, or extending or flexing her wrist.

After the urgent care visit, Carmenate experienced worsening pain so she attended numerous appointments with medical professionals ranging in specialty, including orthopedic surgery, physical therapy, and pain management. We summarize the relevant notes from the appointments here and discuss the details of such appointments as necessary.

After the July 2020 incident, Dr. Kerri Kulovitz began treating Carmenate for her left wrist injury. In September, Dr. Kulovitz confirmed that Carmenate had developed De Quervain's tenosynovitis and further diagnosed her with a "scapholunate ligament sprain[] and mild degenerative changes of the STT joint and the first CMC joint." After various noninvasive treatments failed to remedy her wrist injury, Carmenate underwent a left first dorsal compartment release surgery in November; one of the risks associated with the surgery was complex regional pain syndrome (CRPS). In December, Dr. Kulovitz expressed concern that Carmenate "may be developing CRPS" and recommended that Carmenate continue occupational therapy and see a pain management specialist.

Following her surgery, Carmenate attended 36 occupational therapy appointments between December 2020 and April 2021. Throughout Carmenate's time in occupational therapy, her left wrist pain significantly decreased, and she demonstrated marked improvement in her left wrist mobility and strength.

In a report authored in June 2021, Dr. Kulovitz stated that Carmenate had reached maximum medical improvement (MMI), and regarding Carmenate's left wrist, she was "safe to attempt returning to full duty at work." Dr. Kulovitz placed Carmenate at "an assigned . . . 2% impairment rating of the upper extremity, and 1% of the whole person." However, Dr. Kulovitz further stated that Carmenate had "developed diffuse chronic pain in her left upper extremity, including her shoulder and elbow" and deferred to the evaluation of Carmenate's shoulder and elbow pain by Drs. John Massey and Thomas Saylor.

(b) Injuries Beyond Carmenate's Left Wrist

As previously noted, Dr. Kulovitz was concerned that Carmenate may have developed CRPS and referred her to Drs. Massey and Saylor. In February 2021, Dr. Massey, a pain management specialist, examined Carmenate, diagnosed her with CRPS, and gave her a prescription for Lyrica. In July, Dr. Saylor, an orthopaedic surgeon, examined Carmenate's left shoulder. He noted that Carmenate's shoulder pain was "likely non organic with symptom magnification and significant compensation." Dr. Saylor recommended that Carmenate participate in physical therapy. In October, Dr. Massey "started" Carmenate on a Medrol Dosepak and stated that he would "get her scheduled for stellate ganglion block."

Carmenate began seeing Deirdre Schoenfelder, a physical therapist, in October 2021 for her left shoulder pain. At her initial appointment, Carmenate indicated that "the really strong pain [was] gone . . . in [her] hand," but that she had developed pain in her shoulder instead. She rated her pain at a 10 on a scale of 1 to 10. Throughout the course of her 10 physical therapy appointments, Carmenate continued to rate her pain at a 9 or 10 and expressed that her shoulder was not improving. Carmenate testified that physical therapy did not help at all.

In October 2021, Dr. Donato Borillo conducted an independent medical examination via a telehealth video call with Carmenate to examine her injury; no medical personnel were physically present with Carmenate during this appointment. Dr. Borillo authored a letter to Carmenate's attorney stating the following:

In my medical opinion, Ms. Carmenate suffered several injuries to her left upper extremity on August 23, 2017 while handling boxes. She recovered and returned to work.

By July 23, 2020, [Carmenate] had suffered another injury working at Walmart and on MRI, a left wrist TFCC and scapholunate ligament injury with dorsal subluxation of the ulna. [Carmenate] developed[,] as flow through conditions[,] left elbow medial epicondylitis, left wrist DeQuervain's [sic], left shoulder strain, and left wrist extensor carpi ulnaris tendinosis. She favored the wrist ailments and the neighboring joints accommodated and became strained and inflamed. Despite surgical intervention, symptoms and clinical findings persist.

For the left wrist, a four percent (4%) hand impairment is assigned. The DeQuervain's [sic] condition, despite surgery, impacts thumb, MP function in accordance with figure 16-5 page 457, and IP function in accordance with figure 16-12; also, abduction, figure 16-18 page 459, and opposition figure 16-19 page 460, yield a left-hand impairment of four percent (4%). Eight percent hand (8%) [sic] equates to seven percent (7%) upper extremity impairment. Left upper extremity impairment, for the injuries suffered on July 23, 2020, based upon the combined values chart found on page 604, is sixteen percent (16%) whole person impairment.

Several months earlier, on April 8, 2021, Dr. Nicholas Bruggeman conducted an in-person independent medical examination of Carmenate's neck, shoulder, elbow, forearm, hand, and wrist. Dr. Bruggeman authored a letter addressed to Walmart stating that he "[does] not believe [Carmenate] suffers from complex regional pain syndrome" and that she has reached MMI regarding her left wrist injury. He also found that "no further treatment is required. No physical therapy or diagnostic procedures are necessary." He assigned no permanent impairment rating related to Carmenate's July 2020 accident.

3. Compensation Court Award

The compensation court issued its award on March 3, 2022. The court noted that the parties had reached various stipulations, including that Carmenate sustained an injury to her left wrist on July 23, 2020; the court accepted the stipulations. The court found that "to the extent that [Carmenate] claimed other injuries[,] the medical evidence . . lacked the needed underpinnings to support a finding favorable to [Carmenate]." The court...