Martinez v. Int'l Paper Co.

27 Neb.App. 933

937 N.W.2d 875

Jose MARTINEZ, appellee,

v.INTERNATIONAL PAPER COMPANY, a foreign corporation, and Old Republic Insurance Company, appellants.

No. A-19-409.

Court of Appeals of Nebraska.

Filed January 7, 2020.

Timothy E. Clarke, Lincoln, and Eric J. Sutton, of Baylor Evnen, L.L.P., for appellants.

Jamie Gaylene Scholz, of Law Offices of Jamie G. Scholz, P.C., L.L.O., Lincoln, for appellee.

Pirtle, Riedmann, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

International Paper Company and Old Republic Insurance Company (collectively International Paper) appeal the Nebraska Workers’ Compensation Court’s award, finding that Jose Martinez suffered a repetitive trauma injury and awarding him benefits. Based on our review of the record, we affirm.

BACKGROUND

In February 2018, Martinez filed a petition in the compensation court seeking benefits from International Paper under the Nebraska Workers’ Compensation Act. Martinez alleged that he sustained an injury to his right shoulder by performing "repetitive use-type activities" and that he "suffered an acute episode of pain in his right shoulder a few weeks prior to interrupting his employment and seeking medical treatment on November 9, 2017." A hearing was held on Martinez’ petition in February 2019.

At the hearing, Martinez testified that he was currently employed at International Paper Company and had worked for the company for more than 19 years. He indicated that he developed shoulder pain in 2008, but he did not miss work due to the pain—although the pain was consistent and worsening from 2008 until 2017. On November 8, 2017, Martinez felt a sharp pain in his right shoulder, his right arm "locked," and he could not move it. He indicated that the pain he experienced was worse than previous pain and that it prevented him from even lying on his shoulder that night. Martinez testified that his shoulder had locked in place before November 8, but it always loosened up; however, on that occasion, it did not.

Martinez informed his supervisor before his shift the next day that he could not work, and he was taken to see a doctor on November 9, 2017. He underwent an MRI that same day, and it was discovered that he had a tear of his right rotator cuff. Following this, he returned to work at International Paper Company, but was placed on "lighter-duty work." Martinez met with Dr. Scott Reynolds in December, and it was decided that Martinez would undergo surgery to repair his rotator cuff. Reynolds performed the surgery in January 2018, and then Martinez underwent physical therapy, returning to work in April.

On cross-examination, Martinez testified that he started feeling pain in his shoulder in 2008 and that his pain continued to get worse until he saw Reynolds in November 2017. He testified that he had felt locking and limitations in movement in his arm prior to the incident on November 8, but the pain was severe enough on that date that he needed to see a doctor. Martinez admitted to seeing his family physician in September 2017 for his annual physical. At that appointment, he informed his doctor that he was having pain in his shoulder. Martinez was also questioned regarding prior intake forms he filled out in November and December, as well as prior to his physical therapy in January 2018. On each form, he indicated that he had been having shoulder pain for a long period of time and that there was not a specific injury that occurred prior to his visits.

Following the hearing, the compensation court issued a detailed order awarding Martinez temporary and permanent disability benefits for his shoulder injury. The court noted that Martinez advanced two alternate theories of recovery during trial, one alleging that an acute accident happened on November 8, 2017, and one alleging that his shoulder injury was the result of repetitive job duties, which manifested itself on November 9. The court found that Martinez did not suffer an acute accident on November 8; however, it did find that Martinez suffered a repetitive trauma accident on November 9. Prior to analyzing Martinez’ repetitive trauma injury, the court explained the relevant case law for that type of injury and analyzed Martinez’ injury under the test enunciated in Dawes v. Wittrock Sandblasting & Painting , 266 Neb. 526, 667 N.W.2d 167 (2003), disapproved on other grounds, Kimminau v. Uribe Refuse Serv. , 270 Neb. 682, 707 N.W.2d 229 (2005). The court also noted that there were discrepancies between Reynolds’ causation report, which was offered into evidence at the hearing, and Martinez’ testimony; however, the court remained persuaded by the report and issued an award in favor of Martinez. International Paper timely appealed.

ASSIGNMENTS OF ERROR

International Paper assigns, restated and reordered, that the compensation court erred (1) as a matter of law in applying the test enunciated in Dawes v. Wittrock Sandblasting & Painting, supra , rather than the limited test provided in Maxson v. Michael Todd & Co. , 238 Neb. 209, 469 N.W.2d 542 (1991), disapproved, Jordan v. Morrill County , 258 Neb. 380, 603 N.W.2d 411 (1999), and Vencil v. Valmont Indus. , 239 Neb. 31, 473 N.W.2d 409 (1991), disapproved, Jordan v. Morrill County, supra ; (2) in concluding that Martinez suffered a compensable repetitive trauma injury arising out of and in the course and scope of his employment; and (3) in relying on Reynolds’ causation opinion.

STANDARD OF REVIEW

A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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. Potter v. McCulla , 288 Neb. 741, 851 N.W.2d 94 (2014).

Determinations by a trial judge of the 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. Kaiser v. Metropolitan Util. Dist. , 26 Neb. App. 38, 916 N.W.2d 448 (2018). On appellate review, the factual findings made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id.

An appellate court is obligated in compensation court cases to make its own determinations as to questions of law. Larsen v. D B Feedyards , 264 Neb. 483, 648 N.W.2d 306 (2002).

ANALYSIS

Appropriate Test for Repetitive Trauma Injuries.

International Paper argues that the compensation court erred in analyzing Martinez’ repetitive trauma injury under the test enunciated by the Nebraska Supreme Court in Dawes v. Wittrock Sandblasting & Painting, supra . International Paper alleges Martinez’ injury should have been analyzed under the test prior to Dawes , which was provided in Maxson v. Michael Todd & Co., supra , and Vencil v. Valmont Indus., supra . We disagree.

To adequately address International Paper’s argument, we will first briefly describe the relevant case law surrounding repetitive trauma injuries and lay out how the Supreme Court has addressed such complaints.

In 1991, the Supreme Court decided Maxson v. Michael Todd & Co., supra , and Vencil v. Valmont Indus., supra , both of which addressed repetitive trauma injuries. In Maxson , a divided Supreme Court affirmed the trial court’s finding that an employee was not entitled to workers’ compensation benefits for his injury. The court analyzed the employee’s ongoing shoulder pain under the statutory definition of an accident, which is defined as an " ‘unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.’ " Maxson v. Michael Todd & Co. , 238 Neb. 209, 211, 469 N.W.2d 542, 544 (1991), disapproved, Jordan v. Morrill County , 258 Neb. 380, 603 N.W.2d 411 (1999). The court then cited to its rule from Sandel v. Packaging Co. of America , 211 Neb. 149, 317 N.W.2d 910 (1982), stating that an accident is "sudden and violent" if the injury occurs at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment. Maxson , 238 Neb. at 212, 469 N.W.2d at 544. The court held, however, that the compensation court correctly concluded that "the cumulative effects of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within a reasonably limited period of time , medical attention and the interruption or discontinuance of employment are not the product of an accidental injury." Id. at 213, 469 N.W.2d at 545 (emphasis supplied).

In Vencil v. Valmont Indus. , 239 Neb. 31, 473 N.W.2d 409 (1991), disapproved, Jordan v. Morrill County, supra , a divided Supreme Court once again affirmed the compensation court’s denial of an employee’s claim for workers’ compensation benefits for his back pain. The court conducted the same analysis as was done in Maxson v. Michael Todd & Co., supra , and again held that "[t]he cumulative effects of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury ...." Vencil v. Valmont Indus. , 239 Neb. at 32, 473 N.W.2d at 411.

In 1999, the Supreme Court again addressed repetitive trauma injuries in Jordan v. Morrill County, supra . In Jordan , the compensation court awarded the employee benefits, finding that he suffered a repetitive trauma injury. The compensation court review panel reversed the single judge’s decision, finding that the employee did not interrupt or discontinue his employment to seek medical treatment. Id. Although the Supreme Court affirmed the review panel...