Rodgers v. Honeywell Int'l, Inc.

SUEANNA L. RODGERS, APPELLEE, v. HONEYWELL INTERNATIONAL, INC.,AND XL INSURANCE AMERICA, INC., APPELLANTS.

No. A-20-692.

NEBRASKA COURT OF APPEALS

May 4, 2021

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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 Nebraska Workers' Compensation Court: J. MICHAEL FITZGERALD, Judge. Affirmed.

Caroline M. Westerhold and Jenna M. Christensen, of Baylor Evnen, L.L.P., for appellants.

Jamie Gaylene Scholz and Franklin E. Miner, of Miner, Scholz & Associates, P.C., L.L.O., for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

Honeywell International, Inc., and XL Insurance America, Inc. (collectively Honeywell), appeal the order of the Nebraska Workers' Compensation Court finding that Sueanna L. Rodgers sustained a work-related injury and awarding her benefits. We affirm the compensation court's decision.

BACKGROUND

Rodgers was employed by Honeywell from March through October 2017 in an assembly position building diaphragms that go inside of gas meters. As part of her job duties, she took diaphragm forms off of an oven, which entailed reaching up for the form, pulling it down, and putting it on a table. She performed this action every minute or two for an hour before switching to a different position, and she worked in that position three times during each shift. At one point during her work shift on April 29, Rodgers reached up to take a form out of the oven, and as she was lowering it down to the table, she felt a sharp pain in her left elbow. Rodgers reported the incident to Honeywell's nurse.

On May 1, 2017, Rodgers presented to an advanced practice registered nurse (APRN) for the pain in her elbow. The APRN's assessment was ulnar neuropathy at the elbow. She gave Rodgers work restrictions and several prescription medications and asked her to follow up in a week. Rodgers returned to see the APRN on May 8, where she again complained of pain and weakness in her left elbow. The assessment remained the same, and the APRN gave Rodgers an elbow splint and told her to continue the medications. Rodgers followed up again on May 16. At that time, Rodgers reported that her pain had not improved at all, and the APRN discussed options with her including a nerve conduction test or a referral to a neurosurgeon or orthopedic surgeon. These options were on hold at that time, however, because according to the APRN's notes, they were waiting on the workers' compensation insurance to approve moving forward with one of those plans. At that appointment, Rodgers also reported that her prescription pain medications were not working and requested Percocet, which the APRN then prescribed for her. Rodgers was asked to return in a week, and she did so on May 22. Rodgers was ultimately referred to Dr. Jason Weber, an orthopedic surgeon.

Rodgers saw Weber on May 25, 2017, and he diagnosed her with left lateral epicondylitis. He asked that she stay out of the elbow splint and start moving her elbow, but gave her a wrist splint and referred her to physical therapy. He asked to see her back in 2 months, at which time she could likely return to work after regaining some of her strength. On June 6, Rodgers returned to see the APRN and reported that her nerve pain had increased while wearing the wrist splint from Weber. The APRN recommended a nerve conduction test and an increase in medications. She also referred Rodgers to orthopedic surgeon, Dr. Scott Strasburger, because Weber no longer made appointments in that geographic area.

Rodgers presented to Strasburger on June 13, 2017. He noted that she injured her left elbow at work while pulling on boxes and doing repetitive activities. He, too, diagnosed her with left lateral epicondylitis and noted that she was to begin physical therapy and then return in 2 to 3 weeks if she had not improved. Strasburger indicated that Rodgers was not able to return to work full time or full duty, nor could she return to work with restrictions at that time.

Rodgers followed up with Strasburger on July 10, 2017. She reported improvement at that time and was to continue physical therapy. Strasburger asked her to return in 2 to 4 weeks and noted that if she remained symptomatic at that time, he would recommend an open release of her extensor carpi radialis brevis and debridement of her lateral epicondylitis. She remained off work at that time. Rodgers returned to see Strasburger on August 7. She was markedly improved since her previous visit and was given a note to begin light duty work on August 21. Strasburger asked Rodgers to return in 4 to 6 weeks if she continued to have problems, but otherwise, only as needed. She did not follow up with Strasburger.

Weber authored a letter dated November 13, 2017, in which he reported that he had examined Rodgers on May 25 and that she had symptoms consistent with left lateral epicondylitis. He opined that it was medically probable that her injury was caused by her work activities because this condition is typically caused by repetitive activities. Weber also noted that at the time he sawRodgers, he recommended that she follow up with him in 2 months but that she did not do so. He indicated that if she continued experiencing symptoms of the left lateral epicondylitis, he would recommend that she return to see him to discuss her treatment options.

Strasburger also provided a letter, dated May 5, 2018, in which he opined with a reasonable degree of medical certainty that Rodgers' left lateral epicondylitis was caused by her work activities as a diaphragm assembler. He wrote that he reviewed Rodgers' job description and the physical requirements contained therein. Strasburger noted that he last saw Rodgers on August 7, 2017, and that at that time, he asked her to follow up if she had any further problems, but that she did not return. He therefore placed her at maximum medical improvement (MMI) as of October 1, with no disability rating.

Rodgers filed a petition in the compensation court alleging that she sustained an injury to her left elbow arising out of and in the course of her employment. A hearing was held before the compensation court in June 2020. The evidence established that Honeywell denied Rodgers' compensation claim in May 2017. Rodgers testified that although Strasburger referred her to physical therapy, she was unable to complete the full course prescribed for her because "the bills weren't getting paid." Then when she tried to return to see Strasburger after August 7, his office informed her that because her workers' compensation claim had been denied, Strasburger would not see her unless she could pay for the appointment herself upfront.

Rodgers acknowledged that at her deposition in January 2018, she denied having any ongoing problems which necessitated a return to the doctor, but she testified at the hearing before the compensation court that sometime after her deposition, her situation changed. Thus, as of the time of the hearing, she continued to have issues with her left elbow. She explained that she is unable to carry anything without pain shooting through her elbow and that her symptoms affect her ability to work because she is unable to lift more than 5 pounds with her left hand. Therefore, she wanted to return to see Strasburger for additional treatment.

The parties presented evidence regarding the description of Rodgers' job duties that had been provided to Strasburger in the course of his treatment of Rodgers. It is undisputed that the three-page document covers multiple jobs within the area of "diaphragm assembly cell" and that there are many tasks on the document that Rodgers never performed during her employment with Honeywell. For example, under the heading entitled "effort," the document indicates that an operator may be required to occasionally lift 100 pounds, push and pull weights up to 600 pounds using equipment, or manually push and pull weights up to 1,225 pounds. Rodgers did not perform these tasks. However, Rodgers explained that the description detailing removing molds from an oven conveyor was an accurate description of the task that she repeatedly performed on a daily basis and was the job description that she reported to both Weber and Strasburger.

After the conclusion of the hearing, the compensation court entered an award finding that Rodgers sustained a work-related injury to her left elbow. This finding was based on Strasburger's May 2018 opinion that Rodgers' elbow injury was caused by her work activities as a diaphragm assembler. The award detailed the nature of Rodgers' injury and the medical treatment she sought. The compensation court recognized that Strasburger placed Rodgers at MMI as of October 1, 2017, but it found that Rodgers was unable to return to see Strasburger due to her inability to pay for further treatment. The court observed that Rodgers stated that her elbow was still painful and asked to see a doctor. It therefore concluded that Rodgers had not reached MMI and that she was entitledto see Strasburger one additional time at Honeywell's cost. The court also awarded Rodgers temporary total disability benefits from May 8 through 16, 2017, and from May 25 through August 20.

The court set the matter for further hearing for a determination of payment of medical bills. After that hearing, the compensation court ordered Honeywell to pay the medical bills and mileage offered into evidence by Rodgers. Honeywell appeals.

ASSIGNMENTS OF ERROR

Honeywell assigns that the compensation court erred in (1) finding that Strasburger's opinion had sufficient foundation and relying on it to find that Rodgers had proven an injury causally related to her employment, (2) finding sufficient medical evidence to support a finding that Rodgers was not at MMI, (3) awarding future medical care, (4) questioning witnesses, (5) requiring it to pay a May 16,...