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Peterson v. Leprino Foods

Court of Appeals of Nebraska

September 29, 2015

Kathy Peterson, appellee,
Leprino Foods and its insurers, American Zurich Insurance Co. and Hartford Insurance Company of the Midwest, appellants.


Appeal from the Workers' Compensation Court: Michael K. High, Judge.

Melvin C. Hansen, of Hansen, Lautenbaugh & Buckley, L.L.P., for appellants.

William J. Erickson for appellee.

Moore, Chief Judge, and Pirtle and Bishop, Judges.


Moore, Chief Judge.


Leprino Foods and its workers' compensation insurers appeal from the Workers' Compensation Court's award of benefits to Kathy Peterson. On appeal, they challenge the court's findings that Peterson suffered an aggravation injury in April 2013 and that no reasonable controversy existed concerning that injury. For the reasons that follow, we affirm.


Peterson's Employment at Leprino Foods.

Peterson began working in the Leprino Foods cheese factory in January 2009. While employed by Leprino foods, Peterson performed various jobs, including working on a variety of machines. During Peterson's employment, she suffered accidents and injuries to her lower back in June 2010, September 2012, and April 2013. Peterson has not worked since April 19, 2013, the date of her third accident.

June 2010 Accident and Injury.

On June 29, 2010, Peterson was cleaning the dry mixer at work when her glove caught on something and she was pulled forward into the machine up to her hips. When Peterson extracted herself, she felt a sensation in her back that became progressively worse. Peterson notified her supervisor and initially sought treatment at First Care Medical of Ravenna. Peterson continued to work for Leprino Foods while she was receiving treatment for her injury from the first accident.

On June 29, 2010, Peterson was examined at First Care by a physician's assistant (PA) whose impression was of "a mechanical flareup of [Peterson's] back" with "mild radicular symptoms." The PA prescribed pain medication and provided lifting and movement restrictions. An MRI of her spine taken on July 15 showed mild disk disease at L3-L4 through L5-S1 as well as a small superimposed annular tear at L4-L5.

The PA who saw Peterson at First Care referred her to Dr. James Mahalek, an orthopedic surgeon. Mahalek first examined Peterson on September 2, 2010. At that time, Peterson continued to have low back, left buttock, and posterior thigh pain; numbness and tingling in her left hip and thigh; as well as bilateral leg numbness and tingling with sleeping. Mahalek's impression was of lumber degenerative disk disease, lumbar strain, and low back pain. Mahalek felt that Peterson was symptomatic from a soft tissue injury, and he expected her to improve within 3 months of her injury. He recommended a neurology evaluation with EMG nerve conduction studies of her lower extremities. Mahalek also recommended physical therapy and that Peterson remain on light duty.

Peterson continued to treat with Mahalek in October and November 2010 for her low back pain and tenderness over the left sacroiliac (SI) joint. Mahalek's impression after further examination of Peterson was of low back pain and SI joint dysfunction. On November 12, Mahalek administered an SI joint steroid injection. According to Peterson, her condition improved after this injection and she was essentially symptom free for 1½ years. On January 18, 2011, Mahalek placed Peterson at maximum medical improvement (MMI) and released her to work without restrictions.

September 2012 Accident and Injury.

During the late summer and fall of 2012, Peterson was working on the dry mixer, which job required her to carry 50-pound bags of salt at various points during her shift. Sometime during the first two weeks of September, Peterson's ability to walk and carry those bags became very limited "[b]ecause the pain in [her] back was getting excruciating." Peterson told her supervisor and moved to a different machine that did not require her to carry bags of salt. A few days after she stopped carrying bags of salt, Peterson woke up at home with significant back pain and was "unable to move [her] legs to get out of bed to go to work." Peterson notified Leprino Foods and took the day off work, but she did not seek medical attention until September 12 when she visited First Care Medical, P.C. in Kearney, Nebraska. Peterson continued to work at Leprino Foods while treating her injury from the second accident. Peterson's back continued to hurt during the period between the September 2012 and April 2013 accidents and injuries.

On September 12, 2012, when Peterson initially sought treatment at First Care for the second accident and injury, she reported chronic low back pain that started 4 months prior but was "worse since yesterday." She did not report any recent "fall or injury." The doctor at First Care referred her to Mahalek.

On September 24, 2012, when Peterson was evaluated by Mahalek and his PA, Peterson's chief complaint was low back pain with bilateral leg pain and numbness. Peterson reported that she was asymptomatic following resolution of symptoms from her June 2010 accident until 3-4 months prior to her visit. She also reported that she began to experience increased soreness in her back between September 2 and September 8 when she was lifting 50 pound bags of salt at work. Mahalek and his PA felt that Peterson was "symptomatic from a work injury that occurred between September 2 and September 8." They concluded that Peterson was symptomatic from a new injury because she had previously become asymptomatic from the June 2010 injury. They prescribed pain medication and physical therapy and recommended SI joint injections.

Following the second accident, Peterson also treated with Dr. Shaleah Jones, her primary care physician, for her injury. Peterson saw Jones on October 18, 2012, and Jones' assessment was of nonspecific low back pain and SI joint dysfunction. Jones recommended either proceeding with an SI joint injection or an MRI, and after discussion with Peterson, decided on the MRI. Jones also prescribed pain medication and gave work restrictions. On October 22, Jones wrote to Peterson and stated that her recent MRI was within normal limits and that Jones could find no anatomical ...

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