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Duros v. Diversified Enterprises, Inc.

Court of Appeals of Nebraska

November 12, 2013

Cynthia Duros, appellant and cross-appellee,
v.
Diversified Enterprises, Inc., and Dakota Truck Underwriters, appellees and cross-appellants.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: Thomas E. Stine, Judge.

Holly T. Morris, of Shasteen & Morris, P.C, L.L.O., for appellant.

David A. Dudley and Robert B. Seybert, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellees.

Inbody, Chief Judge, and Moore and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

Cynthia Duros appeals from the decision of the workers' compensation court awarding her medical benefits and temporary total disability benefits from November 12, 2010, through January 12, 2011. In her appeal, Duros argues that the compensation court erred in finding her benefits should cease January 12. Diversified Enterprises, Inc., doing business as Interim Healthcare, and Dakota Truck Underwriters (collectively Interim) cross-appeal. In Interim's cross-appeal, it argues that the compensation court erred in finding Duros suffered a work-related injury. We determine that competent evidence supported the compensation court's findings and therefore affirm.

BACKGROUND

Duros' compensation claim arose as a result of neck, arm, shoulder, hip, and hand pain she began experiencing sometime during the fall of 2010. During this time, she maintained two jobs. She worked as a busdriver for special needs children at a public school and as a home health aide for Interim Healthcare. Her job as a busdriver did not require her to perform much physical labor, but she was required to push, pull, and rearrange wheelchair-bound children while they were getting on and off the bus. Duros' job as a home health aide, however, demanded a medium level of physical exertion. Many of Duros' patients were immobile, and her job required her to frequently lift, carry, push, and pull up to 50 pounds, as well as reposition and transfer patients.

Although Duros could not remember exactly when she began experiencing symptoms, she noted that on one occasion, while attempting to position a patient, she had a distinctly painful experience. She did not report the pain immediately because she expected it to subside. The pain persisted into November 2010, however, causing Duros to meet with her supervisor at Interim in order to request time off. At that meeting, Duros explained that she had been experiencing pain for some time. Duros did not point to a specific injury incident, but told her supervisor that she felt like the cumulative effect of pushing and pulling patients was "wearing out" her body.

In response to the meeting, Duros' supervisor referred Duros to Dr. Arthur West for evaluation. Duros told West that she injured herself while transferring a patient and indicated that the injury had occurred about 3 weeks prior to her November 12, 2010, appointment. Based on that history, Dr. West estimated Duros was injured around October 20 and that her injury was caused by her employment with Interim Healthcare.

After conservative treatment failed, Dr. West referred Duros to Dr. James Gill. During Dr. Gill's evaluation, Duros informed him that she suffered an injury while lifting a patient on November 10, 2010. Based on that specific history, Dr. Gill opined that the lifting incident caused her pain, but also diagnosed her with an independent underlying degenerative condition, cervical spondylosis. According to Dr. Gill, cervical spondylosis results from the natural aging process, but injuries can "exacerbate" or cause "symptomatic" problems. Based on Duros' report that she was injured during work on November 10, Dr. Gill concluded that her work injury "exacerbated" her underlying spondylosis and caused her to have symptoms. He also admitted that even if the date was wrong, as long as Duros suffered an injury from a specific event that occurred at work, her symptoms were caused by that work injury.

Dr. Gill treated Duros with an interlaminar epidural in January 2011. The next week, when Dr. Gill followed up, he noted that although Duros was not symptom-free, she had good relief from the injection. He released her to work without restrictions and planned to monitor her ...


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