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Arbtin v. Puritan Manufacturing Co.5/17/2005
by Dr. Jay Parsow--who passed away soon after the examination--and by Dr. Kurt Gold. Arbtin said that Dr. Gold referred Arbtin to other professionals for more physical therapy and for further medical examinations. Arbtin testified that one of the specialists he was referred to recommended Arbtin have "surgery; cervical surgery, fusion" but that he was unable to have the surgery because Columbia denied it. Arbtin said that he did have shoulder surgery on July 18, 2001, which Columbia did not deny. Arbtin further testified that he received a permanent impairment rating after his shoulder surgery.
Arbtin next testified that during the 26 weekly pay periods prior to his work-related accident, there were "two periods of time when wages were below normal weekly wage." Arbtin said that during one of those weeks, "there was a shortage of work that week" and he left early "because there was no work." Arbtin could not recall whether the second period of lower-than-normal wages was the result of a shortage of work or a missed day of work due to illness. Arbtin said that he still had outstanding bills for medical care and medications and that he had not been reimbursed for travel expenses he incurred as a result of his medical treatments. When asked how he felt at the time of trial, Arbtin said that his neck hurt "in area where the neck meets the shoulder. It always hurts. And it gets worse . . . when it gets aggravated and starts going down between the upper shoulders."
On cross-examination, Arbtin admitted that his medical records from September 28, 2000, indicated that he denied any numbness or tingling in his left arm. He further admitted that his medical records from Midwest do not say anything about a herniated cervical disk. Arbtin also admitted that during the 26 weekly pay periods prior to his work-related accident, there were some weeks when he worked less than 40 hours per week and some weeks when he worked more than 40 hours per week. On redirect examination, Arbtin claimed that on December 30, when he saw Dr. Stephenson after lifting a battery out of his car, he reported the exact same symptoms as he did after his work-related accident.
Arbtin called Darla Sortino to testify on his behalf. Sortino testified that she and Arbtin had had a romantic relationship and that they had moved in together during the latter part of September 2000, after his work-related accident. She said that Arbtin complained of pain " n his neck, his shoulder, his back, it was under his arm, his chest." Sortino also testified that during September, Arbtin was unable to sleep well and could not perform any kind of physical activities around the house, because he was " asically, immobile due to pain." At the conclusion of Sortino's testimony, both parties rested.
On August 20, 2003, the workers' compensation trial court entered its award. The court first approved the parties' stipulations and then found that Arbtin's average weekly wage on September 15, 2000, was $497.60. Specifically, the court found:
[Arbtin] argues that under Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990), [weeks with a shortage of work] should be excluded from calculation. However, Canas dealt with the exclusion of weeks when the employee was unable to work because of illness of the employee, absence for funeral, and the like. Canas did not contemplate the exclusion of weeks when there is a shortage of work, and the shortage of work is one of the reasons why it is necessary to average the employee's hours. Excluding no weeks, the Court has determined that for the first 17 weeks shown on [the wage statement, Arbtin] worked 715.5 hours and was compensated at the rate of $11.50 per hour. For th
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