Persson v. D & S Tires, Inc.

Kyle Persson, appellee, v. D & S Tires, Inc., appellant.

No. A-22-338

Court of Appeals of Nebraska

December 27, 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: James R. Coe Judge.

Daniel P. Lenaghan, of Mooney, Lenaghan, Westberg Dorn, L.L.C., for appellant.

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

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

Pirtle, Chief Judge.

INTRODUCTION

Employer D & S Tires, Inc. (D & S Tires), appeals from an award of the Nebraska Workers' Compensation Court in favor of Kyle Persson. For the reasons that follow, we affirm.

BACKGROUND

Persson was employed by D & S Tires for roughly 24 years as a welder and fabricator. In September 2015, Persson was examined for complaints of bilateral carpal tunnel syndrome that had gotten progressively worse over the course of 4 to 5 years. Persson reported "symptoms of numbness and tingling with night pain that awakens him about every hour." Persson underwent an "EMG nerve conduction study" which showed "moderate to severe carpal tunnel syndrome, right [hand] worse than left." It was determined that the carpal tunnel syndrome was a result of his repetitive work at D & S Tires. Persson obtained a surgical release of the carpal tunnel in his right hand on September 29, 2015.

Persson's first followup appointment was roughly 2 weeks post-operation, and he reported "complete resolution of the numbness and tingling in his fingers." Persson reported some pain and swelling near the incision site, which the attending physician attributed to a complication that occurred during surgery. The attending physician observed that the surgery achieved "good resolution of neuropathy" but that Persson had not reached maximum medical improvement (MMI) on account of ongoing pain and swelling near the incision site. Persson reached MMI with respect to the right hand on April 1, 2016, at which point Persson's right carpal tunnel injury was considered healed with good results. The physician noted "some persistent thenar muscle pain and weakness related to prolonged carpal tunnel syndrome before [surgery]," and Persson received a permanent partial impairment rating of 4 percent for the right hand.

Persson returned to work at D & S Tires and continued his employment there until February 2018. On February 1, Persson was once again examined for complaints of bilateral carpal tunnel syndrome as a result of his employment. Persson reported a return of "numbness and tingling" in his right hand that began in June or July 2017 and ongoing carpal tunnel symptoms in his left hand. In addition, on or about February 15, 2018, Persson suffered a work-related injury to his right shoulder. Persson resigned from D & S Tires on February 23, 2018, citing the aggravation of his carpal tunnel syndrome and the injury to his right shoulder.

D & S Tires accepted Persson's shoulder complaints as a compensable injury and initiated temporary total disability (TTD) payments on March 5, 2018. It was eventually determined that Persson had suffered a "rotator cuff" tear in his right shoulder, and he underwent corrective surgery on September 7, 2018. Persson was released from work restrictions and declared to be at MMI with respect to the shoulder injury on April 22, 2019. However, D & S Tires ceased TTD payments on November 11, 2018, after surveillance showed Persson working in an ice cream shop owned and operated by Persson and his wife. D & S Tires argued that Persson was disqualified from continued TTD benefits at all times after the purchase of that ice cream shop on May 31, 2018. Persson, on the other hand, sought the entirety of TTD payments that D & S Tires withheld from November 12, 2018, through April 22, 2019.

Persson testified that his work at the ice cream shop was limited to "helping my wife out . . . on and off" as they tried to get the business going. Persson testified that he simply "filled in" where help was needed, engaging in tasks such as cooking burgers, cleaning, and picking up groceries. Persson testified that he and his wife sold the shop for a loss about a year after its purchase. Persson then obtained employment as a welder and fabricator with a new employer, Young's Welding (Young's), on August 30, 2019, but he resigned from that employment on July 23, 2021. Persson testified that he resigned from Young's due to ongoing pain and discomfort in his hands and a general difficulty performing essential tasks of his employment as a welder and fabricator. At the time of trial, Persson testified that he was looking for work but that he had only obtained a seasonal part-time position driving a grain cart for a local farmer during harvest.

Persson filed a petition in the compensation court on March 17, 2021, seeking compensation for injuries to both hands, his right shoulder, and his neck. Trial was held on February 15, 2022. The parties stipulated that Persson's right shoulder was a compensable work-related injury incurred as a result of an accident on or about February 15, 2018. However, there was a dispute as to whether Persson was disqualified from continued TTD benefits as a result of his work in the ice cream shop. There was also a dispute as to whether Persson's carpal tunnel injuries were an aggravation or a recurrence of the carpal tunnel injuries complained of in 2015. The court rejected Persson's claim as it relates to alleged neck injuries.

The court ultimately concluded that Persson's work in the ice cream shop did not disqualify him from receiving TTD payments during the time that he was otherwise eligible and awarded Persson TTD benefits for the entire period of time from March 5, 2018 to April 22, 2019, and D & S Tires was given credit for the TTD payments that were made from March 5 to November 11. The court further concluded that Persson's carpal tunnel injuries were an aggravation of the 2015 injuries and were thus compensable as a result of the 2018 accident. In that regard, the court noted that Persson had not experienced carpal tunnel symptoms in his right hand for over a year after the 2015 surgery and that symptoms returned as a result of the "repetitive trauma" associated with Persson's continued employment at D & S Tires.

Altogether, the court found that the undisputed shoulder injury was resolved on April 22, 2019, when Persson was declared to be at MMI and that Persson was entitled to a 10 percent permanent partial impairment to the right arm. The court further found that Persson was entitled to a 2 percent permanent partial impairment to the right hand as a result of the aggravation to Persson's carpal tunnel syndrome. The court ordered that Persson be compensated accordingly and also ordered "a workup for vocational rehabilitation." D & S Tires appealed.

ASSIGNMENTS OF ERROR

D & S Tires assigns that the compensation court erred in (1) awarding TTD benefits from May 31, 2018, through April 22, 2019; (2) awarding vocational rehabilitation benefits; and (3) failing to comply with Rule 11 of the Nebraska Workers' Compensation Court Rules of Procedure.

STANDARD OF REVIEW

Pursuant to Neb. Rev. Stat § 48-185 (Reissue 2021), an appellate court may modify, reverse, or set aside a compensation court decision only when (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. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).

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. In testing the sufficiency of the evidence to support the findings of fact in a workers' compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence. Id.

ANALYSIS

Temporary Total Disability.

D &amp S Tires first assigns that the compensation court was clearly wrong to award Persson TTD benefits from March 5, 2018, to April 22, 2019. D & S Tires argues that Persson was disqualified from TTD benefits on account of his involvement with an ice cream shop that was owned and operated by Persson and his wife. D & S Tires points to surveillance footage captured in October and November 2018, and argues that Persson demonstrated his ability to return to work subsequent to the shoulder injury. In contrast, Persson argues that he was not disqualified from TTD benefits on account of his working "a menial job" for "an especially accommodating employer" while he recovered from his shoulder injury. Brief for appellee at 11-12.

Temporary disability is the period during which the employee is submitting to treatment, is convalescing, is suffering from the injury, and is unable to work because of the accident. Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113 (2013). Total disability exists when an injured employee is unable to earn wages in either the same or a similar kind of work which a person of the employee's mentality and attainments could perform. Id. The level of a worker's disability depends on the extent of diminished employability or impairment of earning capacity. Id....