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Swanson v. Park Place Automotive12/19/2003
NATURE OF CASE
Timothy L. Swanson was injured in an accident that occurred while he was test-driving an automobile for his employer, Park Place Automotive (Park Place), and he was awarded workers' compensation benefits. The primary issue presented in this appeal is whether Swanson could receive loss of earning power and vocational rehabilitation benefits without having been assigned a permanent functional impairment rating.
BACKGROUND
Swanson was injured on May 21, 1999, when the vehicle he was test-driving struck another vehicle in a parking lot. Swanson had pain in his back and leg following the accident and went to the hospital on the same day. Swanson was referred to Dr. Daniel Ripa, who became Swanson's treating physician for the injuries at issue in this appeal. Swanson continued to receive medical treatment and physical therapy, but his condition did not improve, and on March 6, 2000, Swanson had a "hemilaminotomy with lateral recessed decompression of the left S1 nerve overlying small lumbar disk herniation left L5-S1 level." After the surgery, Dr. Ripa determined that Swanson had achieved maximum medical improvement. Dr. Ripa opined that Swanson should avoid lifting in excess of 25 to 30 pounds on a repetitive basis; should not be involved in activities that require prolonged bending, stooping, squatting, kneeling, or repetitive bending below the knee level; and should permanently avoid lifting greater than 50 pounds. The record also contains a loss of earning capacity analysis, in which a vocational rehabilitation specialist opined that based on Swanson's physical restrictions, his loss of earning capacity was approximately 15 percent.
Prior to his 1999 accident, Swanson had been treated for back and leg pain. Swanson was treated by a chiropractor in 1988 for low-back pain and improved as a result of the treatment. Swanson again received chiropractic treatment for several instances of back pain between 1989 and 1999. In his deposition, Swanson stated that he had not had leg pain prior to the accident and that when giving his medical history to Dr. Ripa, Swanson had not reported any prior leg pain. However, at trial, Swanson testified that he had testified inaccurately at his deposition and that he had in fact told Dr. Ripa about his prior leg pain.
The record contains two letters from Dr. Ripa to Swanson's counsel, both dated April 7, 2000, expressing an opinion regarding the connection between Swanson's pre-existing back condition, the accident, and Swanson's subsequent injuries and treatment. There does not appear to be any explanation in the record for the existence of the two separate letters. One letter states, in relevant part, that "most likely the ongoing current medical treatment is related, at least in some degree, to his original radiographic abnormalities but may well have been exacerbated in his motor vehicle accident." The other letter states, less ambiguously, that Swanson's "motor vehicle accident of May 1999 exacerbated his low back condition and resulted in the necessary medical treatment including the surgery." No objection was made at trial to the exhibit containing Dr. Ripa's opinion(s) regarding Swanson's injury.
The single judge, relying on Dr. Ripa's opinion, determined that Swanson's accident "injured his low back, which required surgery." The single judge awarded temporary total disability benefits and directed Park Place to pay Swanson's present and future medical expenses. However, because Dr. Ripa did not assign Swanson a permanent functional impairment rating, no permanent partial disability benefits were awarded, nor were vocational rehabilitation benefits. See Green v. Drivers Mgmt., Inc., 263 Neb
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