Estate of Tunink v. Cont'l Fire Sprinkler Co.

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In re Estate of Greg Tunink, deceased, by and through its Personal Representative, Katelyn Tunink, appellee, v. Continental Fire Sprinkler Co., doing business as Continental Alarm & Detection, employer, and Self-Insured C/O Sedgwick, insurance carrier, appellants.

No. A-23-457

Court of Appeals of Nebraska

February 6, 2024

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: J. MICHAEL FITZGERALD, Judge.

Jennifer S. Caswell, of Caswell, Panko & Westerhold L.L.C., for appellants.

Laura L. Pattermann and Thomp. J. Pattermann, of Gallner &amp Pattermann, P.C., for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

ARTERBURN, Judge.

INTRODUCTION

Continental Fire Sprinkler Company ("Continental Fire") appeals from an award entered by the Nebraska Workers' Compensation Court finding that Greg Tunink had suffered a work-related injury to his right foot and was entitled to disability benefits. On appeal, Continental Fire argues that the compensation court erred in finding that Tunink's work-related accident caused permanent impairment to his right foot and, thus, was compensable. Continental Fire also argues that the compensation court erred in ordering it to pay for Tunink's medication for depression and anxiety without specifically finding such conditions were caused or exacerbated by the work-related accident. Finally, Continental Fire challenges the compensation court's finding that Tunink is entitled to vocational rehabilitation services.

Upon our review, we cannot say that the compensation court's award of disability benefits to Tunink for the injury sustained to his right foot was clearly wrong. As such, we affirm that portion of the court's award. However, because of ambiguity in the compensation court's award as to the cause of Tunink's depression and anxiety, we vacate that portion of the order awarding Tunink payment for depression and anxiety medication, and remand the cause with directions to enter an order in compliance with Workers' Comp. Ct. R. of Proc. 11 (2021) (Rule 11). We also conclude that Continental Fire's allegations regarding the award of vocational rehabilitation services are moot, because Tunink died prior to receiving such services.

BACKGROUND

On May 21, 2019, Tunink was employed by Continental Fire as a fire alarm technician. On that day, Tunink was assigned to test all of the fire alarms at a local nursing college campus. When he was walking into one of the buildings on the campus he pushed open a heavy glass door to walk through. However, the door began to slam shut before he was all the way through it, hitting the top and side of his right foot. Tunink's right foot immediately began to swell and he telephoned his supervisor to determine what he should do.

When his boss arrived at the campus, he informed Tunink that he should finish out his work day, but restrict the amount of walking he did. Tunink continued to work in the days immediately after the accident, using pain medication and icing his foot at the end of each day. Approximately one week after the accident, Tunink informed his supervisor that he needed to see a doctor about his right foot. On May 29, 2019, Tunink and his supervisor attended an appointment with a doctor at WorkFit. At the appointment, Tunink rated his pain as a two out of ten. An x-ray was performed and revealed that there were no broken bones in the foot. Tunink was diagnosed as suffering from a sprain of his right ankle and his foot. He was told he could continue working without restrictions.

Tunink returned to WorkFit for a followup appointment on June 5, 2019. At this appointment, Tunink rated his pain a one out of ten. According to medical records, Tunink informed the doctor that while there was still some swelling and pain in his right foot, he felt it was improving. In the records, the treating doctor noted that Tunink's right foot was "not 100%, but getting close." The doctor indicated that Tunink should feel much better in one to two more weeks. Tunink was informed he could continue working without restrictions.

On July 15, 2019, almost 2 months after the work-related accident, Tunink attended an appointment with his primary care physician, Dr. Heather Obregon. At this appointment, Tunink reported that he had been having pain in his left great toe for approximately 1 week. He did not mention the injury to his right foot at this appointment. Obregon referred Tunink to Dr. Shane Schutt, a foot and ankle surgeon, for further evaluation of the left foot.

Tunink saw Schutt on July 17, 2019, regarding the pain in his left foot which, according to Tunink, "came on spontaneously" a week prior to the appointment. Notably, prior to the appointment with Schutt, Tunink filled out paperwork in which he indicated that his complaints were not related to a workers' compensation case. Tunink did inform Schutt about his May 21, 2019, work-related accident, but indicated that his injury from that accident had "gotten better" and that his current pain "feel[s] a little bit different." Ultimately, Schutt was unable to provide a diagnosis for Tunink's left foot pain. Schutt indicated that Tunink was prediabetic and suffering from neuropathy in the foot, which caused diminished sensation, and Schutt was unable to identify exactly where Tunink was hurting.

In August 2019, Tunink returned to Obregon for a well adult examination. At this time, Tunink reported he still had some pain and swelling in his left foot. Obregon spoke with Tunink about his "morbid obesity" playing a role in regard to his foot pain and his other medical issues. She counseled him regarding losing weight. Obregon also renewed Tunink's prescription for medication associated with his mild depression.

A few weeks later, on September 12, 2019, Tunink emailed Obregon and indicated that the swelling and pain in his left foot was not improving. Obregon referred Tunink to Dr. Kent DiNucci, a podiatrist. Tunink saw DiNucci for the first time on September 19. At the appointment, Tunink complained of pain in his left foot and numbness in the toes on both feet. He denied suffering any specific traumatic injury which would explain his symptoms and did not mention the May 2019 work-related accident. In fact, DiNucci noted in his records, "The right foot was not an issue and no pain." DiNucci ultimately diagnosed Tunink as suffering from multiple stress fractures in the left foot and a possible tear of one of his tendons. DiNucci explained:

Basically, the bones are inflamed and his foot is swollen because they can't heal as fast as they are being broken down by the activity and weight of the patient. Therefore, we need to off-load the foot by using a camwalker and an arch support to allow the bones to have less stress and heal appropriately.

DiNucci also ordered an MRI and counseled Tunink on losing weight.

On October 1, 2019, Tunink sent DiNucci a message asking him to provide certain information to the human resources department at Continental Fire. First, Tunink asked if DiNucci could provide an opinion that the injury to his left foot was "possibly related to putting extra stress on left foot when right foot was injured." He also asked if DiNucci could approve of him returning to work in some capacity so that he could generate some income. DiNucci authored an "Excuse Slip" which directed that Tunink "is improving and can work full-time as long as he has camwalker on his left foot/leg for next 4 wks." DiNucci did not provide any opinion about the cause of the injury to Tunink's left foot.

Tunink messaged Obregon on November 5, 2019, asking for medication for his anxiety: "Can you call me in something for my high anxiety. I really need to stop using alcohol for my anxiety. I think my alcohol use is partly adding to my problems with my feet."

Tunink visited an urgent care facility on November 9, 2019, again complaining of left great toe pain. He was diagnosed as suffering from a diabetic foot ulcer. The treating physician opined that the neuropathy in Tunink's foot was likely contributing to the development of such sores. Tunink followed up with Obregon on November 14. He reported that his whole left leg was now swollen and red and felt hot to the touch. Obregon referred Tunink to Dr. Amir Sasan Gholami, an infectious disease specialist.

Tunink saw Gholami on November 18, 2019. At that time, he complained of "left great toe ulcer, left foot swelling, edema and erythema." He told Gholami that the issue had been present since June. Gholami diagnosed him as suffering from cellulitis of the left foot, left great toe, and left leg and from a diabetic ulcer of the left foot. Tunink was counseled to take prescribed antibiotics, keep pressure off of his foot, and work on losing weight. When Tunink returned to see Gholami on November 25, Gholami noted that the antibiotics appeared to be helping to improve the condition of Tunink's left foot. Gholami discussed with Tunink the importance of keeping pressure off of his left foot, controlling his diabetes, and losing weight.

Also on November 25, 2019, Tunink saw Dr. John Harris, his new primary care physician. At this appointment, Tunink continued to complain of problems with his left foot. Harris referred Tunink to Dr. Scott Nelson, a foot and ankle specialist. In Harris' notes from the November 25 appointment, he indicated that Tunink's "[d]epression screen is negative and [Tunink's depression is] currently treated with medication and/or therapy."

Tunink saw Nelson for the first time on December 9, 2019. At that time, Tunink described the issues with his left foot. However, he did mention...