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Bauer v. Genesis Healthcare Group

Court of Appeals of Nebraska

December 17, 2019

Michael Bauer, appellant,
v.
Genesis Healthcare Group, appellee.

         1. Workers' Compensation: Notice: Appeal and Error. Where the underlying facts are undisputed, or if disputed, the factual finding of the trial court was not clearly erroneous, the question of whether Neb. Rev. Stat. § 48-133 (Reissue 2010) bars the claim is a question of law upon which the appellate court must make a determination independent of that of the trial court.

         2. Workers' Compensation: Notice. Neb. Rev. Stat. § 48-133 (Reissue 2010) contemplates a situation where an employer has notice or knowledge sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable and that, therefore, the employer should investigate the matter further.

         3.___:___. The purposes of the notice requirement of Neb. Rev. Stat. § 48-133 (Reissue 2010) are to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury and to facilitate the earliest possible investigation of the facts surrounding the injury.

         4. Words and Phrases. "Practicable" generally means capable of being done, effected, or put into practice with the available means, i.e., feasible.

         5. Workers' Compensation: Notice: Words and Phrases. The meaning of "as soon as practicable" under Neb. Rev. Stat. § 48-133 (Reissue 2010) depends upon the particular facts and circumstances of the case.

          Appeal from the Workers' Compensation Court: J. Michael Fitzgerald, Judge. Affirmed.

          Christopher R. Miller and Mark P. Grell, of Miller Grell Law Group, P.C., L.L.O., for appellant.

         [27 Neb.App. 905] Jason A. Kidd, of Engles, Ketcham, Olson & Keith, P.C., for appellee.

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

          Welch, Judge.

         INTRODUCTION

         In this workers' compensation case, Michael Bauer filed a claim for benefits against Genesis Healthcare Group (Genesis), concerning a shoulder injury he experienced while working as a physical therapy assistant. A trial judge of the Workers' Compensation Court determined that Bauer failed to give the required notice of injury to Genesis "as soon as practicable" after the occurrence and dismissed Bauer's petition. Bauer appeals the dismissal of his petition, arguing that the trial court erred in finding that he failed to give Genesis notice of his injury as soon as was practicable. Having determined, as a matter of law, that the trial court correctly determined that Bauer failed to give Genesis notice "as soon as practicable" as required by Neb. Rev. Stat. § 48-133 (Reissue 2010), we affirm the trial court's dismissal of Bauer's petition.

         STATEMENT OF FACTS

         On September 15, 2017, Bauer was employed by Genesis as a director of rehabilitation and as a physical therapy assistant. On that date, while assisting a patient in a wheelchair, Bauer felt a "sharp pain" and a "sudden pop" in his right shoulder together with a "burning kind of numbness" that went down his right arm. Bauer testified that he told his coworker that he '"tore a muscle or something'" and was advised to file a report. Bauer did not immediately file a report. He testified that he was concerned about his job status and did not want to "rock the boat" by reporting the injury. Instead, he testified that he believed he could handle it on his own. Later that day, Bauer went to the gym to try to work out his arm. The following weekend, Bauer canceled a planned trip to a Nebraska football game, placed ice on the impacted area, and utilized a [27 Neb.App. 906] set of pulleys at his home to work on his range of motion. Due to his ability to set his own work schedule, Bauer placed himself on light duty for the week following the incident.

         On September 25, 2017, Bauer was informed by his employer that he was being placed on administrative leave and instructed that his position might be eliminated but that he would be considered for other director of rehabilitation positions in the state if one should become available. Bauer testified that, at that time, his arm was still sore, but he continued to believe he had a minor sprain or strain. He continued to try and rehabilitate his injury by pursuing aquatic therapy on his own.

         Bauer testified that on October 1, 2017, while working at his family farm and attaching a blade to a tractor, he felt pain and a "pop" in the same shoulder. He testified that he was being "hardheaded" about seeing a doctor, but at the urging of his wife, he first sought treatment for his shoulder on October 6 at a clinic in McCook, Nebraska. At the clinic, he was examined by a physician assistant, who stated in her medical note: "The onset of the shoulder pain has been sudden following an incident not at work and has been occurring in a persistent pattern for 5 days. The course has been without change. The shoulder pain is severe. The shoulder pain is characterized as a sharp stabbing." The physician assistant suggested that Bauer have a CT scan of the shoulder and that Bauer contact an orthopedic surgeon.

         Bauer made an appointment to see Dr. Jeffrey Tiedeman, an orthopedic surgeon in Omaha, Nebraska. In his office notes governing the visit on October 20, 2017, Dr. Tiedeman indicated Bauer "was injured when he was putting a blade on the back of his tractor on 10-1-17. He felt a pop in his shoulder and a burning sensation that radiated from the shoulder all [the] way down to his hand." The note of the visit also indicated, "[Bauer] wasn't experiencing any significant problems with his shoulder before this episode." At trial, Bauer stated that he did not initially tell Dr. Tiedeman about any work [27 Neb.App. 907] injury. Bauer stated that he purposefully misled his doctors to avoid his employer's discovering his work injury.

         Following the visit, Dr. Tiedeman opined that Bauer was injured when he was putting a blade on the back of his tractor. His impression was that Bauer had suffered a "[r]otator cuff tear right shoulder with possible associated biceps tendi-nopathy." He then recommended a CT scan with an arthrogram component in order to obtain "better definition" governing the status of the rotator cuff.

         Bauer testified that on Friday, October 20, 2017, following his appointment with Dr. Tiedeman, he called Genesis to report the injury but was unable to reach the appropriate person. He then reported the injury on Monday, October 23, and filed a written report the following day.

         The CT scan was performed on October 30, 2017. The radiologist's impression was that there was no evidence of a rotator cuff tear or retraction, there was a "[m]edial sublux-ation of the biceps tendon with superficial partial tear and suspected overlying subscapularis tendon tear," and there was an "anterior capsular laxity with evidence of multidirectional instability possibly with small intra-articular loose body and partial tear/laxity of the middle glenohumeral ligament." After Dr. Tiedeman reviewed the CT scan on November 3, he opined that there "did not appear to be any full-thickness tear of the rotator cuff," but he noted "some subluxation of the biceps tendon and likely a partial-thickness tear of the upper border of the subscapularis."

         After Bauer returned to Dr. Tiedeman on November 20, 2017, for a followup evaluation, Dr. Tiedeman diagnosed a "[b]iceps tendon subluxation with rotator cuff tendinopathy right shoulder." Dr. Tiedeman stated that they could manage the symptoms conservatively or pursue a surgical approach. At this visit, Bauer advised Dr. Tiedeman, for the first time, that Bauer believed he may have actually injured his shoulder initially in mid-September when he was "lifting a patient at work."

         [27 Neb.App. 908] On April 4, 2018, Dr. Tiedeman opined that "more likely than not," the work accident caused or contributed ...


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