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Arbtin v. Puritan Manufacturing Co.5/17/2005
e next 9 weeks, [Arbtin] worked 376.75 hours and was compensated at the rate of $12.50 per hour. Thus, the Court has concluded that [Arbtin] had an average weekly wage of $497.60 for the purpose of calculating his entitlement to temporary disability compensation. However, for the purpose of calculating his entitlement to permanent disability compensation, each week under 40 hours must be elevated to 40 hours. Thus, [Arbtin] is deemed to have worked 728.25 hours for the first 17 weeks and 384.50 hours for the last 9 weeks. Those calculations result in an average weekly wage for the purpose of calculating permanent disability compensation of $506.97.
Regarding the issue of the herniated cervical disk suffered by Arbtin, the trial court found that Arbtin had "failed to adduce persuasive evidence that he suffered a herniated cervical dis as a result of his accident and injury of September 15, 2000." Specifically, the court found:
Dr. Gold has expressed an opinion that [Arbtin's] herniated cervical dis is a result of th accident . . . . Dr. Hellbusch also expresses an opinion that the herniated cervical dis was caused by th accident . . . . Dr. [Gary] Walker of Idaho Falls, Idaho, has expressed an opinion connecting the accident of September 15, 2000, and [Arbtin's] cervical radiculopathy . . . .
Dr. Clough expresses a contrary opinion in his report of June 30, 2003 . . . . Dr. [Dean] Wampler expresses a contrary opinion in his report of January 23, 2002 . . . . . . . The Court does not find the opinions expressed by [Dr. Gold, Dr. Hellbusch, or Dr. Walker] persuasive because they are based upon a history of neck pain from September 15, 2000, when the medical records do not reflect neck pain until January 8, 2001. The Court finds the opinions of Dr. Wampler and Dr. Clough more persuasive.
As a result of this finding, the trial court found that Arbtin suffered no compensable temporary disability as a result of the herniated disk, that he was not entitled to surgery to treat the herniated disk, and that he was not entitled to the payment of medical bills for the treatment of the herniated disk.
On August 29, 2003, Arbtin applied to the Workers' Compensation Court for a review of the trial court's order by a three-judge panel. On May 12, 2004, the review panel entered its "Order of Affirmance, in Part, and Reversal, in Part, on Review." The review panel determined that the trial court did not err when it found that Arbtin had failed to prove that he had suffered a herniated cervical disk as a result of his work-related accident, finding:
It is a factual issue as to whether or not [Arbtin's] herniated dis at C6-7 was caused by and/or the result of the accident of September 15, 2000. The trial judge saw and heard the witnesses testify and read the exhibits. We cannot say the trial judge was clearly wrong.
With regard to Arbtin's average weekly wage, the review panel reversed the award of the trial court. The review panel found:
[Arbtin] claims that week 16, where worked 31.75 hours for the week ending July 2, 2000, and week 23, where worked 32.5 hours for the week ending August 20, 2000, should be excluded in the computation of average weekly wage. [Arbtin] cites [Neb. Rev. Stat. ยง] 48-126 and Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990). . . . In Canas there was evidence that the plaintiff's ordinary work week was 45 to 50 hours per week. In this case, [Arbtin] argues that his ordinary work week can be determined by reviewing [the wage statement] showing the number of hours worked each week. . . . The review of the wage statement shows that [Arbtin] had two weeks of work where he worked le
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