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Hunt v. Pick's Pack-Hauler, Inc.

Court of Appeals of Nebraska

September 15, 2015


Page 724

Appeal from the Workers' Compensation Court: LAUREEN K. VAN NORMAN, Judge.

Rolf Edward Shasteen, of Shasteen & Morris, P.C., L.L.O., for appellant.

Jason A. Kidd, of Engles, Ketcham, Olson & Keith, P.C., for appellees.

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


Page 725

[23 Neb.App. 279] Bishop, Judge.

In August 2000, Joseph Hunt injured his right arm in the course and scope of his employment as a truckdriver with Pick's Pack-Hauler, Inc. The parties entered into a lump-sum Decisions of the Nebraska Court of Appeals [23 Neb.App. 280] settlement agreement in accordance with an award of benefits entered by the Nebraska Workers' Compensation Court following trial; the compensation court approved the settlement in 2003. Pick's Pack-Hauler paid Hunt pursuant to the settlement, and Hunt filed a satisfaction and release of Pick's Pack-Hauler's liability in June 2003.

Page 726

In 2013, Hunt filed a petition in the compensation court seeking to set aside the lump-sum settlement on the basis of constructive fraud, alleging that his treating physician had incorrectly determined that he had reached maximum medical improvement (MMI) at the time of the 2003 settlement. The compensation court granted the motion for summary judgment of Pick's Pack-Hauler and its insurer, Great West Casualty Company, Inc. (Great West), and dismissed Hunt's petition. Hunt now appeals; we affirm.


On August 30, 2000, Hunt (age 34 at the time) injured his right arm while securing a trailerload during his employment with Pick's Pack-Hauler. He first sought treatment from his family doctor on September 5 and was prescribed anti-inflammatory medication and shown exercises to relieve pain " 'in his right biceps area.'" Hunt did not seek medical treatment again until April 6, 2001, when he returned to his family doctor with complaints of pain in his right shoulder. Hunt was referred to Dr. Gary Chingren, an orthopedic doctor. In a letter dated April 21, 2001, Dr. Chingren noted that Hunt's injury would be a " long term problem" and stated that it could take " 6 to 9 months for things to get well."

In September 2001, due to Hunt's continued pain, an MRI was taken of his right shoulder. Dr. Chingren noted the MRI reflected a " full thickness rotator cuff tear." Hunt filed a petition in the Workers' Compensation Court on September 24.

After undergoing additional conservative care, Dr. Chingren performed right shoulder surgery on Hunt on October 10, 2001. Hunt continued to see Dr. Chingren for postoperative [23 Neb.App. 281] checkups through February 2002. At this February appointment, Dr. Chingren noted that Hunt reported that his arm ached and hurt, but that medication helped. Dr. Chingren noted that Hunt may have ruptured his right biceps tendon " at some point in time."

In a letter dated November 1, 2002, Dr. Chingren stated that at Hunt's 1-year postoperative visit in October, his examination was " essentially the same as it was in July," and that Hunt had made " very satisfactory progress." Dr. Chingren determined Hunt had a 14-percent impairment rating for his right upper extremity.

Trial on Hunt's petition was held on January 14, 2003. The court entered an award on March 14. The court found that Hunt sustained a right arm injury as the result of an accident arising out of and in the course of his employment with Pick's Pack-Hauler. The court found that as a result of Hunt's work accident and injury, he was temporarily and totally disabled from October 9, 2001, to January 9, 2002, which was when Dr. Chingren released Hunt to work light duty. Thereafter, the court found that Hunt sustained a 14-percent permanent partial impairment to his right arm, in accordance with Dr. Chingren's impairment rating. The court determined Hunt's average weekly wage was $775.02, entitling him to temporary total disability benefits of $487 per week for 13 2/7 weeks, and $487 per week for 30.1 weeks for his 14-percent permanent partial disability to his right arm. The award also ordered Pick's Pack-Hauler to pay for certain medical bills incurred by Hunt and to reimburse Hunt's insurance company and Medicare. The court did not award Hunt future medical treatment, concluding that Hunt had not submitted evidence suggesting it would be required.

On April 23, 2003, the parties filed an " Application for Approval of Final Lump Sum Settlement" in the Workers' Compensation Court. The settlement application stated that the settlement was

[23 Neb.App. ...

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