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Horn v. Gra-Gar, LLC

Court of Appeals of Nebraska

July 23, 2013

Ralph Horn, appellee,
v.
Gra-Gar, LLC, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: Ronald L. Brown, Judge.

Bradley D. Shidler, of Werner Enterprises, Inc., and, on brief, Daniel R. Fridrich and Nathan J. Meisgeier for appellant.

Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C., for appellee.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Mullen, District Judge, Retired.

INTRODUCTION

Gra-Gar, LLC, appeals from a Nebraska Workers' Compensation Court decision awarding Ralph Horn temporary total disability benefits of $432.89 per week from October 26, 2011, for as long as Horn remained totally disabled. Gra-Gar argues that Horn was already totally disabled due to non-work-related medical conditions for which he was receiving Social Security disability benefits and that accordingly, there could be no loss of earning capacity because he had none due to his non-work-related medical conditions. Based on the analysis below, we affirm.

FACTUAL BACKGROUND

The parties agree that Horn suffered a work-related injury on February 19, 2008, when the hood of a work truck fell down on top of him while he was attempting to jump-start the truck's battery. He was prescribed pain medication, muscle relaxants, and injections for his lower back and ultimately required surgery. On August 6, Dr. John Treves performed a "[d]ecompressive lumbar laminectomy medial facetectomy and foraminotomy at L4, L5 bilaterally" and a "[r]ight lateral L5-S1 discectomy." Up until the time of this surgery, Horn continued to work for Gra-Gar as a "shag driver, " which required him to drive trucks a short distance from one worksite to another. On November 13, Dr. Treves concluded that Horn had adequately recovered from his procedure, but still had some left lower extremity radicular pain. Horn was released to return to work with restrictions in the light-medium capacity.

Horn continued to have symptoms of low-back pain after returning to work. On November 25, 2008, Horn received followup care for back pain from Lynn Kocian, a physician's assistant. Horn discontinued working in December 2008 upon Kocian's recommendation, because his symptoms interfered with his ability to do the work. He returned to Dr. Treves on January 8, 2009, with ongoing low-back pain. While off work from December 2008 to June 2009, Horn continued to receive treatment with Kocian for ongoing back and lower extremity symptoms.

Dr. Charles Taylon examined Horn in March 2009 and concluded that regarding his back injury, Horn had attained maximum medical improvement and had incurred a permanent partial whole-body impairment rating of 18 percent. Dr. Taylon recommended that Horn be restricted from lifting more than 25 pounds, be restricted from repetitive bending and twisting, and be limited to driving in the local area with the ability to stop every 1 or 2 hours. Dr. Taylon repeated these opinions in a letter dated May 31, 2009, after reviewing an additional MRI. Horn returned to work in June 2009, but he continued to suffer from low-back pain for the duration of his employment with Gra-Gar.

On July 15, 2009, Horn had an episode of confusion and memory loss while at work and coworkers took him to a hospital. Horn returned to Dr. Treves for treatment and was ultimately diagnosed with a cystic brain mass in August 2009. Horn continued working for Gra-Gar; however, he blacked out while driving at work on August 17. According to Horn, he resigned on September 8, because of the blackout incident, not because of his low-back injury.

On September 17, 2009, Horn returned to Dr. Treves and reported that he was doing well and had not had any further episodes of confusion, but that he had persistent radicular pain in his left leg. Dr. Treves noted that Horn had undergone a driving evaluation and was cleared for personal driving but could not drive commercially, which was the type of driving he was doing as a "shag driver." In November 2009, Horn returned to Dr. ...


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