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Martinez v. Millard Processing Services and Sentry Claims Service2/18/2003
(not designated for permanent publication)
INTRODUCTION
On January 19, 1999, Victoria Martinez, the plaintiff, received an award of workers' compensation benefits for an injury she sustained while working for Millard Processing Services (Millard Processing). On February 8, 2001, she filed an application for modification, alleging that in the previous award, she was determined to have had an 11-percent permanent partial disability and a 25-percent loss of earning capacity, that she cannot engage in substantial employment activity, and that she should therefore be determined to be permanently totally disabled. The trial court denied the application, and the plaintiff appealed. The review panel affirmed the trial court's award. The plaintiff appeals. We affirm.
BACKGROUND
On April 25, 1997, the plaintiff sustained an injury when she tripped on a pallet while working at Millard Processing. The plaintiff petitioned to recover for her injuries. In its January 19, 1999, award, the trial court found that the plaintiff had sustained an 11-percent permanent partial disability to her left arm and a 25-percent loss in earning capacity as a result of injuries to her lower back and left arm and awarded her compensation accordingly.
On February 8, 2001, the plaintiff filed an application to modify the original award, alleging that subsequent to such award, she had experienced a material and substantial increase in her incapacity, due solely to her compensable injury . Specifically, the plaintiff averred that shoulder, back, and knee pain caused by the original injury had worsened, interfering with her daily activities and rendering her permanently totally disabled and therefore unemployable.
On June 19, 2001, a hearing was held on the plaintiff's application for modification. The plaintiff and Scott Altic, a safety manager for Millard Processing, testified, and exhibits were admitted into evidence.
SUMMARY OF EVIDENCE
The plaintiff testified that she received treatment at the University of Nebraska Medical Center (UNMC) pain clinic from January 18 to August 31, 1999, based on the recommendation of her personal physician, Ziad Zawaideh. She stated that her treatment made her feel " little bit better," but that she "felt little relief." During the months following the end of this treatment, the pain in the plaintiff's back and legs increased. The plaintiff testified that at the time of the modification proceeding, she suffered from pain in her waist, arm, knee and hip and " trong" pain in her back and legs. She testified that she was unable to stand for more than 10 or 15 minutes before the pain required her to sit down. She stated that she was able to walk for 10 minutes before hip pain required her to stop. The plaintiff testified that the pain also interfered with her sleep, waking her up three or four times each night. The plaintiff stated that her condition had worsened substantially since she was injured at Millard Processing and that she had not had any other accidents or falls since then.
Exhibits, consisting primarily of the letters and reports of medical, psychological, and occupational experts, were introduced by stipulation. The following is a summary of that evidence:
In a letter to the plaintiff's attorney, dated February 29, 2000, Zawaideh, the plaintiff's personal physician, stated that the plaintiff's current diagnosis was "left chronic shoulder strain with acromioclavicular joint, degenerative disease with stenosis, chronic cervical and lumbar sprain, chronic left knee strain, and associated generalized pain secondary to above [work-related injury] with resultant post traumatic
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