Ulrich v. Arjo-Century Distrib.

1

Douglas Ulrich, Appellant, v. Arjo-Century Distributing, Inc., Appellee

No. A-22-656

Court of Appeals of Nebraska

May 9, 2023

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.

Terrence J. Salerno, of Salerno & Leavitt, for appellant.

Dennis R. Riekenberg and Michael R. Faz, of Cassem, Tierney, Adams Gotch &Douglas, for appellee.

PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, JUDGE.

I. INTRODUCTION

Douglas Ulrich received injuries in a work-related accident while employed by Arjo-Century Distributing, Inc. (Arjo). He then suffered a second nonwork-related accident. The Nebraska Workers Compensation Court entered an award in Ulrich's favor, but it limited his recovery of medical expenses to those incurred through the date of the second accident. Ulrich appeals, assigning error to the court's finding that certain medical expenses incurred following the second accident were not recoverable. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

1. EMPLOYMENT

At the time of his work-related accident and injury, Ulrich was employed by Arjo as a certified service technician with specialized training in certain products used in hospitals, nursing homes, and some in-home care facilities. He sold service contracts and his job required him to travel to facilities to perform maintenance and repair work. He was injured in a work-related vehicle accident on April 7, 2017. Subsequently, on September 27, 2018, he was involved in a second nonwork-related vehicle accident. At some point, Ulrich was fired by Arjo.

2. PETITION

On August 3, 2018, Ulrich filed a petition in the compensation court seeking benefits. Ulrich alleged a work-related accident occurring on or about April 7, 2017, and resulting in injury to his low back with right leg pain, neck pain, upper back pain with numbness to right hand, and bilateral shoulder pain. Ulrich alleged that the matters in dispute were the extent of his disability, entitlement to additional medical care and treatment, payment of medical bills, temporary total and permanent partial disability benefits, and other benefits as allowed by the Nebraska Workers' Compensation statutes.

3. TRIAL

Trial was held before the compensation court on June 8, 2022. The court heard testimony from Ulrich, and it received numerous medical records, bills, and other documentary exhibits offered by the parties, including documents filed in the district court litigation over the second accident (Ulrich's complaint, his answers to interrogatories filed by the defendant, and a release of claims and indemnity agreement document). We have summarized only the evidence relevant to the issues on appeal.

(a) April 2017 Accident and Subsequent Treatment

On April 7, 2017, Ulrich was driving his work van when another individual "drove right out in front of [him]," forcing him to turn and brake his van to avoid a collision. Ulrich's van went off the road and skidded into a ditch or depression before stopping. He described the process of driving into the ditch as involving "sudden impacts" and stated that the van "bounced" multiple times before coming to a stop. Ulrich went to the emergency room where he was diagnosed with "lumbar muscle pain" and discharged with medication. An x ray of Ulrich's lumbar spine was "negative."

On April 12, 2017, Ulrich saw his primary care physician, Dr. Paul Mueller, complaining of back pain radiating down to the right calf along with bilateral trapezius pain radiating down to an area between the shoulder blades as well as into both arms. Mueller noted that Ulrich's symptoms were consistent with "muscular low back pain in the right parathoracic and right paralumbar area except for some pain that radiates down the right leg which could be a radicular sign." And, he noted that Ulrich's bilateral trapezius muscle pain was consistent with "whiplash injury," although the pain radiating into his arms and tingling in his fingers could be "a sign of radiculopathy." Mueller prescribed physical therapy and medication. Mueller's office notes for follow-up visits on April 28, May 12, May 26, and June 9, include references to on-going low back, radiating into his right leg, and bilateral trapezius pain between his shoulder blades, radiating into both arms, as well as mid back thoracic pain.

Following the May 26, 2017, visit, Mueller scheduled an MRI. The lumbar MRI, completed in June, showed degenerative changes; neither the lumber nor the cervical MRI showed any "specific areas of foraminal narrowing or spinal stenosis." The MRIs did not show anything to explain Ulrich's upper and lower extremity symptoms. Mueller then referred Ulrich to Dr. Zachary Gustin, a physical medicine doctor.

On July 5, 2017, Ulrich saw Gustin for an initial evaluation. Gustin ordered thoracic imaging, physical therapy, and an epidural injection. On July 10, Ulrich's physical therapist noted inconsistencies regarding his movement patterns and report of pain. Gustin gave Ulrich an epidural injection on July 14, but because Ulrich showed no significant improvement, Gustin did not recommend a repeat injection. When examining Ulrich during an August 9 follow-up visit, Gustin noted "[e]xquisite tenderness to palpation, somewhat exaggerated to the level of pressure use" and an improvement in his tenderness with distraction. In strength testing, Gustin observed Ulrich to exhibit "a ratchet weakness with give way weakness pattern" that improved with coaching and distraction. Gustin also noted the results from the ordered imaging of Ulrich's thoracic spine ("[n]ormal dorsal spine" shown by x rays and "[m]inimal degenerative disc disease" shown by MRI) and his lack of significant gains through physical therapy. Gustin placed Ulrich at maximum medical improvement (MMI) as of August 9 and referred him for a functional capacity evaluation (FCE).

The results of the August 18, 2017, FCE were borderline valid with evidence of overt symptom/disability exaggeration; it also noted that Ulrich's movement patterns and behavior were consistent with the symptoms and disability. In his notes from a September 1 office visit, Gustin adopted the recommendations of the FCE that Ulrich was able to work at the light physical demand level for an 8 hour day with certain restrictions.

After a follow-up visit on November 27, 2017, Gustin again did not recommend further injections, and he opined that Ulrich's MMI date and restrictions remained the same. At that time, Ulrich still complained of severe back and buttock pain. He was also still experiencing neck pain, numbness, and tingling. Ulrich saw Gustin again on May 24, 2018, at which time Gustin noted that Ulrich's pain was "relatively stable, perhaps slightly improved," that he had some intermittent "short-lived" aggravations with "overactivity and lifting," and that he had been able "to manage his aggravations relatively well with avoidance of overactivity and activity modification."

Ulrich had a follow up visit with Mueller on August 3, 2018. In his office notes from the August 3 visit, Mueller noted right shoulder pain "which has been persisting for some time now and may have become lost in all the workup for neck pain and arm pain, thoracic back pain, and low back pain." Mueller noted the difficulty in distinguishing Ulrich's "radiating pain" from pain "actually in the shoulder," but he found, upon examination of the right shoulder, "some possible rotator cuff signs." Ulrich's last visit with Mueller prior to the second accident was on September 14.

(b) Vocational Rehabilitation

Ulrich participated in a vocational rehabilitation plan to obtain an associate's degree in business management between the two accidents. His schooling ended after the September 2018 accident. Ulrich sent an email to his vocational rehabilitation counselor on October 1, stating that his "back shoulder leg neck pretty much everything [was] hurting a lot worse."

(c) September 2018 Accident and Subsequent Treatment

On September 27, 2018, Ulrich was involved in a second motor vehicle accident. In his complaint filed in the resulting litigation in district court, Ulrich alleged that he was stopped behind traffic at an intersection due to a red traffic signal and that the defendant in that litigation, who failed to see the stopped traffic, "crashed his vehicle into the rear end of [Ulrich's] vehicle" and then "struck [Ulrich's vehicle] a second time." Ulrich alleged that as a result of that accident, he sustained injuries, including "neck[,] shoulder, and mid-back pain, and lower back pain," some of which had required surgical intervention. He also alleged that his medical costs to date had been $25,209, that some of his injuries were permanent and would require ongoing medical care and treatment, and that he had been unable to work resulting in lost earnings. In answers to interrogatories from the defendant in the district court case asking him to describe the injuries for which he was claiming damages Ulrich responded that he "sustained an injury to his lower back which necessitated surgical intervention," "also required shoulder surgery to repair damage suffered in the collision of 9-27-2018," and "continue[d] to treat for neck pain which ha[d] necessitated injections and physical therapy." In response to an interrogatory asking him to describe every item or element of special or monetary damages, Ulrich provided an itemized list of bills incurred through January 28, 2020, totaling $188,508.41, including bills for the first shoulder surgery and the first back surgery discussed...