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Burnett v. Tyson Fresh Meats, Inc.

Court of Appeals of Nebraska

April 8, 2014

WILLIAM BURNETT, APPELLANT AND CROSS-APPELLEE,
v.
TYSON FRESH MEATS, INC., APPELLEE AND CROSS-APPELLANT

Page 298

Appeal from the Workers' Compensation Court: JOHN R. HOFFERT, Judge.

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

Joseph F. Bachmann, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., for appellee.

INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.

OPINION

Page 299

[21 Neb.App. 911] Inbody, Chief Judge.

INTRODUCTION

William Burnett appeals the order of the Nebraska Workers' Compensation Court

Page 300

awarding him temporary total disability benefits and outstanding medical and mileage expenses, but denying him permanent partial disability benefits. The appellee, Tyson Fresh Meats, Inc. (Tyson), has also cross-appealed the trial court's reliance upon certain medical expert testimony and determination regarding causation. For the following reasons, we affirm the order of the trial court in its entirety.

STATEMENT OF FACTS

Burnett, who was 44 years old at the time of the trial, began working for Tyson in February 2010 as a " chucks operator," which involved cutting meat with a " chuck saw." In the 1980's, Burnett underwent hip surgery, but had not experienced any [21 Neb.App. 912] pain, impairment, or work restrictions since that time. On June 11, 2010, Burnett was leaving the processing floor where he worked to go on break and slipped down a small set of stairs. Burnett explained that he slipped on debris from cow " scraps" in the doorway, which caused him to put his weight all on his left side. Burnett immediately felt pain in his hip, and he reported it to the Tyson safety representative.

Burnett was seen by a doctor through " Tyson's healthcare" and was referred to Dr. Michael L. McCarty. Burnett testified that Dr. McCarty explained that the pain he was having was from slipping and falling and not because he needed a hip replacement. Dr. McCarty's June 22, 2010, report indicates that " [Burnett's] pain is from the degenerative arthritis of the hip with the acute trauma caused from the fall." The report further indicates that " there is no urgency or emergency but long term I think the only thing that is really going to help his hip is going to be a total hip replacement." Dr. McCarty's followup report on July 6 continues to indicate that Dr. McCarty wanted approval from Tyson's insurance carrier for a total hip replacement and that there were " not any other good alternatives when [Burnett] has such advanced degenerative arthritis." Thereafter, in a letter seeking clarification of Dr. McCarty's diagnosis from Tyson's insurance carrier, Dr. McCarty indicated that the " findings of advanced degenerative joint disease" were not caused by the June 11 accident and were personal in nature.

Thereafter, in December 2010, Burnett sought out an evaluation by Dr. Brent Adamson for a second opinion, because although he was told by the Tyson doctors that he was not injured, his pain continued at the same level of intensity. Dr. Adamson diagnosed Burnett with severe degenerative arthritis of the left hip and recommended a " left total hip arthroplasty."

Burnett underwent the recommended surgery on December 23, 2010. Burnett testified that he paid for the surgery and that some expenses were covered by health insurance. Burnett missed work from December 22, 2010, through March 1, 2011. Burnett returned to work on March 1, and he testified that he has had no problems or pain since that time. On June 7, [21 Neb.App. 913] 2012, Dr. Adamson opined that Burnett suffered a strain and contusion of his left hip when he slipped and fell on June 11, 2010. Dr. Adamson further opined that " the degenerative arthritis that he sustained was pre-existing his injury and that the x-rays did not look any different before the injury than they did after the injury." Dr. Adamson opined that Burnett reached maximum medical improvement, that there were no permanent work restrictions, and that he sustained a 23-percent impairment to his left hip.

In October 2012, Dr. D.M. Gammel was asked to review the medical reports and documentation regarding Burnett's hip pain ...


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