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Arbtin v. Puritan Manufacturing Co.5/17/2005
mple of conflicting medical evidence. Arbtin presented reports from numerous physicians that support his position that his herniated cervical disk was the result of his work-related accident and was thus a compensable injury. However, Puritan produced reports from two physicians that conflicted with the opinions of the medical reports presented by Arbtin. Dr. Clough, one of the first physicians to treat Arbtin after the accident, noted on January 3, 2001, that Arbtin was complaining of pain in an area which "had not been injured during his original injury of September 18, 2000, nor noted on the October 13, 2000 exam." Also on January 3, 2001, Dr. Clough found Arbtin to be "at maximal medical improvement . . . . He remains without restrictions and on full work activities . . . . No further medical care will probably be necessary."
Further, Puritan offered a report by Dr. Dean Wampler, who examined and interviewed Arbtin on January 14, 2002. The purpose of Dr. Wampler's evaluation was to assess Arbtin's "physical condition, and explore issues of cause and effect relationships." Dr. Wampler found that many of Arbtin's complaints at the time of this assessment were "inconsistent with the medical records." Dr. Wampler also noted that Arbtin admitted that he had "some 'flare up' of his pain symptoms when struggling to get a battery out of his automobile at the end of December 2000." Ultimately, Dr. Wampler came to the following conclusions:
medical records show that . . . Arbtin had only a soft tissue injury in September, which resolved by late November of 2000. He then experienced a new injury while lifting a battery out of his vehicle, and resulting in symptoms of shoulder injury with possible cervical radiculopathy. Based on the information currently available to me, I believe with a reasonable degree of medical certainty that . . . Arbtin's shoulder surgery in July of 2001, and continuing symptoms to suggest cervical radiculopathy, are not connected to the work event in September 2000; but rather were caused by events at home on or about December 30, 2000.
(Emphasis omitted.)
In Arbtin's brief, he asserts that the trial court should not have accepted the opinions of Dr. Clough or Dr. Wampler because their "opinions were based upon inaccurate and incomplete facts." Brief for appellant at 21. However, Dr. Clough was one of the first physicians to treat Arbtin after his work-related accident, and Dr. Clough also examined Arbtin shortly after December 28, 2000, the date when Arbtin experienced pain when lifting a battery out of his car. A review of the record shows that Dr. Wampler, when performing his assessment, reviewed all of the relevant medical records produced at trial.
The single judge of the Workers' Compensation Court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, even where the issue is not one of live testimonial credibility. Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003). Based on the evidence in the record, we cannot say that the trial court was clearly wrong in finding the opinions of Drs. Clough and Wampler persuasive and in finding that Arbtin's herniated cervical disk was not a result of his work-related injury. Arbtin's assignment of error is therefore without merit.
Puritan and Columbia's Cross-Appeal.
On cross-appeal, Puritan and Columbia assert that the review panel committed error when it improperly reversed the trial court's computation of Arbtin's average weekly wage. The review panel found that "weeks 16 and 23 [weeks in which Arbtin worked less hours than he normally worked] should be excluded in the computation of [Arbtin's] aver
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