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Tchikobava v. Albatross Express, LLC

Supreme Court of Nebraska

April 1, 2016

ANDREI TCHIKOBAVA, APPELLANT,
v.
ALBATROSS EXPRESS, LLC, APPELLEE

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the Workers' Compensation Court: DANIEL R. FRIDRICH, Judge.

James C. Bocott, of Law Office of James C. Bocott, P.C., L.L.O., for appellant.

Patrick B. Donahue and Dennis R. Riekenberg, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.

OPINION

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[293 Neb. 225] Miller-Lerman, J.

NATURE OF CASE

On November 12, 2013, Andrei Tchikobava filed a petition in the Nebraska Workers' Compensation Court seeking temporary and permanent disability benefits for injuries he sustained in an accident that occurred on August 9, 2010, that arose out of and in the course and scope of his employment as a truckdriver with Albatross Express, LLC. A hearing was held in February 2015, and on April 1, 2015, the compensation court awarded Tchikobava (1) temporary total disability benefits for the period from August 10, 2010, to and including December 8, 2010, and (2) permanent total disability benefits starting May 2, 2014, and continuing for so long as Tchikobava remains permanently and totally disabled. The compensation court did not award temporary total disability benefits for the period of December 9, 2010, through May 1, 2014, and it found that Tchikobava was not entitled to future medical care expenses or penalties, attorney fees, or interest. Tchikobava appeals.

We determine that there was no reversible error in the compensation court's evidentiary ruling excluding the deposition of Dr. Leon Reyfman and that the compensation court did not err when it did not award future medical expenses. These rulings are affirmed. However, we reverse the denial [293 Neb. 226] of temporary total disability benefits for the period from December 9, 2010, through May 1, 2014, and remand this cause to the compensation court to again rule on this issue based on the existing record and to provide an explanation which forms the basis for its ruling.

STATEMENT OF FACTS

The parties in this case do not dispute that Tchikobava was employed by Albatross Express as a truckdriver and that on August 9, 2010, Tchikobava sustained injuries in an accident arising out of and in the course and scope of his employment. On that day, Tchikobava and his team driver were driving a semi-trailer truck from New Jersey to California. They had stopped in Chicago, where the team driver began driving and Tchikobava entered the sleeper berth and fell asleep. While in Nebraska, Tchikobava was sleeping and his team driver was driving, when their semi-trailer truck was struck from behind by another semi-trailer truck. The force of the impact caused Tchikobava to be thrown from the sleeping area of the semi-trailer truck into the front of the driving compartment.

Tchikobava was transported to a hospital in Seward, Nebraska. Once he was at the hospital, Tchikobava complained of chest pain in the left rib area. He testified at the hearing that he had pain in his back, his ribs, and the area around his heart and stomach. Tchikobava was diagnosed with left chest wall pain, left pleural effusion, and paracervical tenderness. The compensation court found that Tchikobava weighed approximately 400 pounds at the time of the accident. Tchikobava testified he was discharged after a couple of hours.

Tchikobava was taken to a hotel. After falling asleep, Tchikobava later awoke and was in a lot of pain. An ambulance was called and drove Tchikobava back to the hospital. The emergency room records from August 10, 2010, show that Tchikobava complained of severe leg pain and rib pain, and it was noted that he was having some discomfort in his chest [293 Neb. 227] and pain with breathing. Tchikobava was prescribed medication for the pain. A chest x ray showed a probable fracture of one of Tchikobava's ribs, and a CT scan of the chest showed " [n]o obvious displaced rib fracture . . . ."

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Albatross Express paid for Tchikobava to fly to his home in New York. Tchikobava testified that it was a painful flight home. When Tchikobava arrived in New York on August 12, 2010, his wife took him to a hospital there. The admitting diagnosis was heart attack, and admission records also show complaints of backache and chest pain. Three views of the chest showed no evidence of acute left-sided rib fractures; however, this was in contrast to another medical record which noted there was a fracture of the seventh and eighth ribs on the left side. X rays taken of the lower back and hip revealed degenerative changes. A neurology consult was also performed on August 12. Pain management was ordered by the consulting doctor, and Tchikobava was admitted for a possible heart attack.

On August 18, 2010, Tchikobava was transferred to another New York hospital for a cardiac catheterization, which was negative. During the course of his stay at the hospital, Tchikobava complained of bilateral leg and back pain, left-sided chest pain, and vertigo. The medical reports noted that Tchikobava had intact alertness, orientation, attention, and memory.

While he was admitted to the second New York hospital, Tchikobava participated in physical therapy, but his ability to participate in the therapy was limited by his pain. Tchikobava was discharged on September 2, 2010, with a rolling walker, home care to be provided by social services, and medication, including oxycodone and antihypertensive agents.

On October 18, 2010, Tchikobava was examined by Dr. Pushp R. Bhansali, an orthopedic surgeon. Dr. Bhansali noted that Tchikobava had continued pain in his lower back and his left rib cage, but he could not assess Tchikobava's range of motion due to Tchikobava's obesity. Dr. Bhansali ordered " EMG/NCV" testing, physiotherapy, and medications. [293 Neb. 228] Tchikobava was instructed to return in 6 weeks, but he did not do so.

On October 22, 2010, an MRI of Tchikobava's lumbar spine was performed, and the MRI confirmed that Tchikobava had a muscle spasm, mild degenerative disk disease, and a possible broad-based disk herniation at L5-S1. However, the herniation could not be confirmed due to Tchikobava's movement during the MRI.

At some point, Tchikobava began seeing Dr. Alexander Berenblit, a board-certified neurologist, for treatment, and he continued physical therapy with Dr. Berenblit's office through December 22, 2010. Dr. Berenblit ordered EMG/NCV testing, which occurred on December 8, and the test results were consistent with a bilateral L5-S1 radiculopathy. Dr. Berenblit recommended further physical therapy.

Tchikobava testified that Dr. Berenblit retired, so he began seeing Dr. Reyfman, a pain management specialist. Dr. Reyfman first examined Tchikobava on November 22, 2010, and at that visit, Tchikobava stated that he had low-back pain which radiated to both legs and that the pain was made worse by movement. Dr. Reyfman reviewed the MRI from October 22 and the EMG/NCV test results, and he diagnosed Tchikobava with lumbar disk displacement, lumbosacral neuritis radiculopathy, a sprain of the ribs, and a fracture of one rib. Dr. Reyfman recommended that Tchikobava continue with physical therapy and advised him to avoid certain movements, including bending, lifting, or carrying anything heavy.

With regard to causation, Dr. Reyfman stated in his report: " No pre-existing conditions exist that affects the causality. I feel that there is a direct causal relationship between the accident described and the patient's current injuries. The patient's

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symptoms and clinical findings are consistent with musculoskeletal injuries to the described areas." Dr. Reyfman instructed Tchikobava to return in 2 to 3 weeks. The only other report from Dr. Reyfman contained in the record is from Tchikobava's office visit approximately 31?2 years later, on April 30, 2014. [293 Neb. 229] At the hearing, Tchikobava testified that he visited Dr. Reyfman more than twice, but only these two reports from Dr. Reyfman are in the record.

Tchikobava testified that he sought treatment with his family doctor, Dr. Iouri Sobol, from the period between January 2011 and April 2013, and he testified that Dr. Sobol prescribed him pain medication. The record does not contain any medical records or reports from Dr. Sobol. Furthermore, the record does not contain any medical reports or records regarding any treatment that Tchikobava received in 2011 or 2012.

The only medical report regarding Tchikobava's treatment in 2013 is an office note from Dr. Wayne A. Gordon, a neuropsychologist, who examined Tchikobava on August 16 and 19, 2013. Tchikobava's lawyer requested that Tchikobava be seen by Dr. Gordon. Dr. Gordon administered a series of tests regarding Tchikobava's memory and coordination. Dr. Gordon stated that based upon the results of these tests, he believed Tchikobava was suffering from cognitive deficits, and he determined that the cognitive deficits were " secondary to the accident."

The next evidence of Tchikobava's medical treatment in the record is Dr. Reyfman's report dated April 30, 2014. Dr. Reyfman stated in this report that Tchikobava complained of low-back pain radiating out to his legs, along with numbness and tingling in his feet and toes. He also complained of neck pain radiating to his shoulders, along with a headache. Dr. Reyfman ordered EMG/NCV testing on the arms and legs, which showed evidence of a bilateral cervical radiculopathy at C5-C6 and bilateral mild and chronic L4-5 and L5-S1 lumbosacral radiculopathy. He also ordered another MRI of the lumbar spine, which showed disk space collapse at L5-S1 leading to lateral recess stenosis.

In a report dated May 2, 2014, Dr. Reyfman stated that Tchikobava was at maximum medical improvement. He stated that Tchikobava suffered permanent impairment and could work only in the " less than sedentary" demand category. [293 Neb. 230] Tchikobava was instructed to return in 1 week. The record does not contain other medical reports from Dr. Reyfman.

On May 28, 2014, Tchikobava visited Dr. Vadim Lerman and stated he had low-back pain and neck pain. Dr. Lerman reviewed the MRI from April 30, 2014, and he diagnosed Tchikobava with a lumbar radiculopathy, lumbar pain, spinal stenosis of the lumbar region, and a lumbar herniated disk. Dr. Lerman stated that he did not feel surgery was warranted, and he recommended that Tchikobava continue physical therapy, lose weight, and consider bariatric surgery.

At the hearing, Tchikobava testified that none of the treatment he received relieved him of his pain and that physical therapy made his pain worse. He testified that he cannot bathe himself, dress himself, or go to the bathroom or get out of his wheelchair without assistance. He further testified that he cannot drive and that his wife had given up her job as a nurse's aide in order to stay home and take care of him. Tchikobava also testified that he was informed that he cannot have surgery until he loses weight.

At the request of Albatross Express, Dr. Malcolm G. Coblentz, a general surgeon,

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examined Tchikobava on August 6, 2012. Dr. Coblentz reviewed several of Tchikobava's medical records, but he did not review the EMG/NCV testing from December 2010. Dr. Coblentz noted that his examination was limited by Tchikobava's obesity and lack of cooperation. Dr. Coblentz stated that he found no evidence of disability, based on his observations and limited physical examination. In a report dated June 12, 2014, ...


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