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Everts v. Hardcopf-Bickley6/25/1999
Everts v. Hardcopf-Bickley, S-98-226
Everts v. Hardcopf-Bickley, 257 Neb. 151
Appeal from the District Court for Douglas County: Lawrence J. Corrigan, Judge. Reversed and remanded for a new trial.
NATURE OF CASE
Martin Everts brought suit, claiming that a vocational rehabilitation counselor was negligent in recommending that he work in a job which exceeded his physical capabilities and thereby caused him injury. The jury returned a verdict in favor of the rehabilitation counselor, and Everts timely appealed.
SCOPE OF REVIEW
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. Tapp v. Blackmore Ranch, 254 Neb. 40, 575 N.W.2d 341 (1998).
Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the error adversely affects the substantial rights of the complaining party. Fales v. Books, 253 Neb. 491, 570 N.W.2d 841 (1997).
FACTS
On September 9, 1991, Everts injured his lower back during the course of his employment with McGill Restoration. He visited his family physician, Dr. Robert Brown. Brown referred Everts to Dr. Louis Tribulato, an orthopedic surgeon, who diagnosed Everts with a moderate lumbar strain. Everts was given restrictions of moderate to light work with no lifting over 50 pounds.
Everts also underwent a "work hardening" program, and on completion of the program, he was evaluated as performing within the light to medium category of physical demand characteristics of work. The evaluator noted at that time that Everts was "not functioning at the physical demand characteristics" required for his job as a caulker/bricklayer, that his symptoms increased when he lifted increased weight, and that he was experiencing decreased lumbar flexibility. Thus, the evaluator opined that Everts could not return to his previous position as a caulker/bricklayer, and it was recommended that Everts consult with a vocational rehabilitation counselor regarding future potential employment opportunities.
After Everts completed the work hardening program, Brown provided McGill Restoration's workers' compensation carrier with a diagnosis. Brown diagnosed Everts as having a herniated lumbar disk and persistent pain in his back. Brown noted that he agreed with the recommendations of the work hardening program. He also concluded that Everts was not capable of returning to his prior profession and, thus, needed to be retrained. In Brown's opinion, Everts suffered from a permanent partial disability of 15 percent to his body as a whole.
In January 1992, at the request of the workers' compensation carrier, Everts saw Dr. Anil Agarwal for an independent medical exam. Agarwal diagnosed Everts with a bulging lumbar disk at L5-S1 and chronic lumbar strain. Agarwal determined that further medical treatment or physical therapy was not necessary at that time; however, he recommended that Everts not lift over 50 pounds and that Everts avoid prolonged or repeated bending and stooping. Agarwal acknowledged that Everts' current job required him to lift in excess of 50 pounds, and thus, Agarwal opined that Everts' job needed to be modified.
Everts was next sent to Bickley & Associates to undergo vocational rehabilitation. Jan Hardcopf-Bickley (Bickley) was assigned as Everts' counselor. She was provided with Everts' medical history and informed of the physical restrictions placed on Everts by his doctors. During the rehabilitation, Bickley
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