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Contreras v. T.O. Haas, LLC

Court of Appeals of Nebraska

August 19, 2014


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Appeal from the Workers' Compensation Court: J. MICHAEL FITZGERALD, Judge.

John W. Iliff, of Gross & Welch, P.C., L.L.O., for appellant.

William V. Steffens and Jeremiah J. Luebbe, of Steffens Law Office, P.C., for appellee.

IRWIN and BISHOP, Judges. INBODY, Chief Judge, participating on briefs.


Page 343

[22 Neb.App. 277] Per Curiam.


On appeal, T.O. Haas, LLC, asserts that the Workers' Compensation Court erred in admitting certain exhibits into evidence and in finding that Ismael Contreras is permanently and totally disabled. We affirm.

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In 2006, Contreras was hired by T.O. Haas as a certified tire technician. As a part of Contreras' job, he was required to remove old tires from vehicles, repair tires, and place either new or repaired tires back on the vehicles. On August 23, 2010, Contreras was working at T.O. Haas and was trying to change a tire on a " skid steer." In working with the tire, Contreras turned to his left to lower the tire to the ground when he felt " a sharp pain go through [his] back." Contreras reported the injury to his supervisor.

Contreras attempted to return to work the day after his injury, but was unable to work for even an hour. Contreras has not returned to work at T.O. Haas since the day after he incurred the injury to his back. In fact, other than working part time delivering newspapers for approximately 2 months in 2012, Contreras has not worked anywhere since August 24, 2010.

In September 2010, Contreras made an appointment with his family physician, Dr. Jason Citta, because the pain in his back had not improved since August 23. Dr. Citta prescribed Contreras pain medication, ordered an MRI, and referred him to a physical therapist. During the months of September and October, however, Contreras continued to see [22 Neb.App. 278] Dr. Citta and continued to complain about severe back pain. Dr. Citta referred Contreras to Dr. Burt McKeag for further pain management.

On October 12, 2010, Contreras saw Dr. McKeag. After Dr. McKeag's examination, he noted the following in his report:

[Contreras] is involved in litigation with workman's compensation. His story and injury are very reasonable, but he does tend to have an exaggerated presentation. I reviewed his MRI and he does have significant NF stenosis at L5/S1 on the left consistent with his symptoms. I feel that it is reasonable to proceed with a [lumbar epidural steroid injection].

Dr. McKeag administered the injection to Contreras on November 16. Contreras reported that he did not receive any significant relief from this injection. As a result of Contreras' reports of continued back pain, Dr. Citta referred him to a neurosurgeon, Dr. Omar Jimenez.

Dr. Jimenez diagnosed Contreras as suffering from " degenerative disc disease at L4-5 and also at L5-S1 with a large herniated disc on the right at L5-S1, which also extends centrally slightly to the left." He recommended that Contreras undergo back surgery. In March 2011, Contreras had back surgery. After the surgery, Contreras reported that he was " having significant right SI joint discomfort." Dr. Jimenez prescribed pain medication, including another injection. In addition, he advised Contreras to continue to attend physical therapy.

In June 2011, approximately 3 months after his surgery, Contreras reported that he was experiencing " excruciating pain lateral to [his] incision up in the hip area." Contreras stated that the pain was " disabling." Dr. Jimenez indicated he was " baffled by his symptoms and would like to proceed with [an] MRI . . . . It is likely that he may be suffering from sacroiliac joint pain, although he states this is better in addition to his trochanter pain." Ultimately, Dr. Jimenez prescribed Contreras additional pain medication and ordered him to be more " aggressive in his recuperation." Dr. Jimenez believed that physical therapy would help Contreras heal. However, Dr. Jimenez also noted that the MRI revealed " evidence of facet [22 Neb.App. 279] hypertrophy bilaterally at 4-5 and 5-1 . . . which may be an issue that may need to be addressed in the future."

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Contreras returned for a followup visit with Dr. Jimenez in August 2011, where he continued to report severe back pain. At this appointment, Dr. Jimenez recommended that Contreras undergo a spinal fusion surgery. After receiving a second opinion about the spinal fusion surgery, Contreras elected not to undergo the procedure.

After his August 2011 appointment with Dr. Jimenez, Contreras returned to the care of Drs. Citta and McKeag. The doctors continued to prescribe pain medication and recommended physical therapy. Contreras continued to report ongoing back pain.


On December 22, 2010, Contreras filed a petition in the Nebraska Workers' Compensation Court alleging that he had been injured in the scope and course of his employment with T.O. Haas. Contreras requested that, as a result of his injury, he be awarded temporary and permanent disability benefits. He also requested that T.O. Haas be ordered to pay for his medical bills.

On March 1, 2013, a trial was held. At the trial, T.O. Haas stipulated that Contreras injured his back on August 23, 2010, while at work. It also stipulated that the injury to Contreras' back required surgery in March 2011. However, T.O. Haas specifically disputed the extent of Contreras' work restrictions and loss of earning capacity as a result of his back injury.

Contreras testified at trial regarding the accident and his resulting injury. During his testimony, Contreras indicated that he continues to take pain medication for his back on a daily basis. In fact, he testified that he has taken some type of pain medication for his back continuously since August 23, 2010. He also testified that despite this pain medication, he continues to suffer from back pain. He explained that during his testimony, his back was " throbbing and ha[d] a burning sensation." He rated his pain at ...

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