Escobar v. JBS USA

25 Neb.App. 527

909 N.W.2d 373

Gerson Saul Del Cid ESCOBAR, appellee and cross-appellant,

v.JBS USA, appellant and cross-appellee.

No. A-17-227

Court of Appeals of Nebraska.

Filed February 6, 2018

Dallas D. Jones and Thomas B. Shires, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellant.

Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellee.

Pirtle, Riedmann, and Arterburn, Judges.

Arterburn, Judge.

I. INTRODUCTION

JBS USA (JBS) appeals and Gerson Saul Del Cid Escobar cross-appeals from an order entered by the Nebraska Workers’ Compensation Court finding Escobar had sustained a work-related injury, finding that Escobar had reached maximum medical improvement, awarding a 15-percent loss of earning capacity, ordering JBS to pay for specific emergency room medical services, and awarding Escobar future medical care. On appeal, JBS argues the compensation court erred in finding that certain portions of medical bills incurred by Escobar during a period of hospitalization were related to his work injury and erred when it found that Escobar was entitled to temporary total disability from February 17 through March 15, 2016. On cross-appeal, Escobar argues the compensation court erred by failing to award temporary partial benefits from June 28, 2015, through maximum medical improvement. Escobar also argues he is entitled to attorney fees. For the reasons set forth below, we affirm in part, and in part reverse and remand for further proceedings.

II. BACKGROUND

The present appeal primarily concerns the nature and extent of the injury sustained by Escobar as a result of his accident. Escobar was 31 years old at the time of trial. Escobar had been employed by JBS for approximately 1½ years at the time of his accident. On June 25, 2015, Escobar sustained an injury to his lower back as a result of an accident arising out of and in the course of his employment with JBS. At the time of the accident, Escobar worked as a beef "tenderloin puller." His duties included removing tenderloins off of a conveyor belt and trimming the meat. These tenderloins could weigh up to 135 pounds. At some point during his shift on June 25, Escobar left the conveyor line to use the restroom. Escobar testified that upon his return to the line, his supervisor had pulled tenderloins from the line and placed them in a large bin. Escobar testified that he had to bend over the bin, lift the tenderloins, and place them onto his workstation. Escobar testified that he injured his back while lifting tenderloins out of the bin.

Escobar went to the company nurse that day to seek treatment for his back injury. The company nurse, Jana Elwood, noted in her report that Escobar did not appear to be in any physical distress. Elwood also noted that Escobar told her that he hated his job and wanted a new job, but did not want to have to bid for a new job. Elwood testified that she asked Escobar "if he was okay," and he responded that he was "mad," but was "okay."

Escobar did not seek further treatment from the company nurse until July 7, 2015. Escobar informed Elwood that he had dull pain in his lower back. Elwood did not note anything remarkable about Escobar’s condition in her report. Elwood treated Escobar with a "Biofreeze massage" and allowed him to return to work. Elwood applied the same treatment the following 2 days. Elwood then referred Escobar to a doctor for an examination on July 14.

Escobar was seen initially by Dr. Thomas Dunbar. Escobar stated that his pain was 10 out of 10, but Dr. Dunbar’s report stated that the examination was normal except for some tenderness on Escobar’s lower back. Dr. Dunbar prescribed some medication and released Escobar to work. Escobar returned to the physician’s office 1 week later with no reported change to his pain level. The physician placed Escobar on work restriction and prescribed physical therapy.

During Escobar’s first visit with the physical therapist, the therapist noted "[d]ecreased lumbar lordosis" and range of motion of the lumbar spine. At Escobar’s last physical therapy session, which was August 24, 2015, Escobar stated that the pain had decreased some and the therapist noted improvement. However, Escobar still complained of pain, so the physical therapist referred Escobar to a physiatrist.

On August 27, 2015, Escobar sought treatment at the University of Nebraska Medical Center (UNMC) for a reported 2-month history of constant left-sided low-back pain after lifting at work. After examination, Escobar was diagnosed with a "[l]arge flank ecchymosis" of the left lumbar back and tenderness of the lower back, but normal range of motion. Escobar was prescribed medication and told to visit his regular physician.

On August 31, 2015, Escobar underwent an examination by Dr. Christopher Anderson, a physiatrist. Escobar complained of "10/10" left-sided lumbar pain. Dr. Anderson diagnosed Escobar with "[l]eft [l]umbar [r]adiculitis" resulting from his work-related injury. Dr. Anderson ordered additional medications, an MRI, and no work for 1 week. Escobar learned on September 1 that JBS would not pay him benefits for his week off of work, so Escobar requested that Dr. Anderson lift the work restriction. Dr. Anderson subsequently released Escobar to work but restricted him to light-duty work.

Escobar had an MRI conducted on September 3, 2015. The MRI showed mild degenerative changes of the lumbar spine and an "L4-5 annular tear with disc bulge." At the following visit, Dr. Anderson noted that Escobar’s manual muscle strength was normal and that he had better range of motion. However, Escobar still complained of severe pain, and he scored at the maximum score on the pain disability questionnaire. Escobar continued his medications and light-duty work and was subsequently referred for more physical therapy.

Escobar continued to treat with his physical therapist and Dr. Anderson until January 2016. On January 6, by request of JBS, Escobar was evaluated by Dr. Dennis Bozarth, an orthopedic surgeon. Dr. Bozarth determined that Escobar’s subjective back pain was out of proportion to the physical examination, which was likely exacerbated by biopsychosocial stressors. Escobar continued his treatment with Dr. Anderson, and on February 17, Dr. Anderson took Escobar off of work for 4 weeks and referred him for more physical therapy.

On February 23, 2016, Escobar sought treatment at the UNMC emergency room. Escobar complained of sharp low-back pain radiating down his left leg to his foot. At trial, Escobar testified that he went to the emergency room because "half of my body got numb." Escobar was admitted to the hospital and underwent a battery of tests. Escobar remained in the hospital for 2 days. We will discuss the numerous procedures Escobar underwent as they become relevant in our analysis.

On March 2, 2016, Dr. Bozarth authored a letter in response to JBS’ request for an opinion regarding Escobar’s ability to perform his job. Dr. Bozarth opined that he disagreed with Dr. Anderson’s assessment and believed that Escobar could perform light to medium work. Dr. Bozarth stated that he believed Escobar should undergo a functional capacity evaluation (FCE) in order to determine exactly what restrictions and work capacity Escobar could handle. Dr. Bozarth stated in his letter that he believed Escobar had reached maximum medical improvement.

After being provided with Dr. Bozarth’s letter, Dr. Anderson agreed that an FCE would be appropriate. Dr. Anderson did not agree with Dr. Bozarth’s work restrictions, but believed Escobar could return to work with light-duty restrictions. Escobar underwent an FCE on April 4, 2016. No restrictions could be prescribed because the therapist determined that Escobar performed with "submaximal effort." Dr. Anderson was unable to utilize the FCE for permanent work restrictions but did place Escobar at maximum medical improvement on April 21. Escobar underwent a second FCE on September 26. The results were found to be valid by the therapist and indicated that Escobar could work medium to heavy physical demand for an 8-hour day.

Escobar sought treatment with Dr. John McClellan on September 26, 2016. Dr. McClellan evaluated Escobar at a spine and pain center. Dr. McClellan specifically opined that the aggravation of Escobar’s preexisting lumbar degeneration arose when Escobar was lifting heavy tenderloins from the bin at work on June 25, 2015.

Escobar filed a petition in the compensation court on January 7, 2016. The matter went to trial on November 21. The compensation court received stipulations of fact, heard testimony, and received documentary evidence. There being no dispute, the compensation court found that Escobar had presented sufficient evidence to support his claim of a work-related low-back injury. The compensation court found that Escobar had reached maximum medical improvement on April 21, the date Dr. Anderson noted in his report. The compensation court awarded temporary total disability benefits from February 17 to March 15. The compensation court also awarded Escobar a 15-percent loss of earning capacity. Additionally, the compensation court ordered JBS to pay certain costs associated with Escobar’s medical treatment from February 23 through 25. Finally, the compensation court awarded future medical care.

III. ASSIGNMENTS OF ERROR

JBS argues the compensation court erred in (1) finding that certain hospital bills incurred by Escobar were related to his work injury and (2) finding that Escobar was entitled to temporary total disability from February 17 through March 15, 2016. On cross-appeal, Escobar argues the compensation court erred by failing to award temporary total and temporary partial disability from June 28, 2015, through maximum medical improvement on April 21, 2016. Escobar also argues that he is entitled to attorney fees.

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’...