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Pineda v. County of Douglas6/21/2005
(Not Designated for Permanent Publication)
Irwin, Carlson, and Moore, Judges.
INTRODUCTION
Pinnacle Foods Corporation (Pinnacle) and its insurer appeal from an order of the review panel of the Nebraska Workers' Compensation Court, which affirmed the decision of the Workers' Compensation Court trial judge, finding that Sandra Pineda suffered back injuries arising out of two separate accidents that occurred while Pineda was employed with Pinnacle and Douglas County, respectively. On appeal, Pinnacle and its insurer contend that the court erred in finding that Pineda suffered a 20-percent loss of earning capacity as a result of her February 4, 2000, accident and injury at Pinnacle. For the reasons set forth below, we affirm.
BACKGROUND
On January 6, 2003, Pineda filed a complaint, stating that on or about October 21, 2002, she was lifting a container of food trays while performing her duties as a food service worker for Douglas County and injured her back. Pineda asked that she be awarded a hearing and that the court award her benefits.
In an answer filed January 17, 2003, Douglas County admitted that it employed Pineda on October 21, 2002, but denied that Pineda suffered any disability as the result of her claimed injury. Douglas County stated that if Pineda was disabled, her disability was related to an accident which occurred prior to Pineda's employment at Douglas County.
On April 23, 2003, Douglas County filed a third-party complaint, asking that Pinnacle, and its insurer, be impleaded in the action as third-party defendants. Specifically, Douglas County stated that on February 4, 2000, Pineda injured her back in an accident arising out of and in the course of her employment with Pinnacle.
On May 1, 2003, Pinnacle and its insurer filed an answer to Douglas County's third-party complaint. In that answer, Pinnacle and its insurer stated that although Pineda suffered an accident arising out of and in the course of her employment with Pinnacle, Pineda failed to suffer any permanent injury or impairment as a result.
On June 4, 2003, Pineda filed an amended petition bringing two causes of action, one against Douglas County and the other against Pinnacle and its insurer.
On December 3, 2003, trial was held on Pineda's amended petition. At trial, the parties stipulated that on February 4, 2000, Pineda was earning $10.85 per hour and $511.74 per week and, furthermore, that on that same date, Pineda was injured in an accident arising out of and in the course of her employment with Pinnacle. The record shows that after her injury, Pineda experienced pain in her lower back and saw Dr. Dean Wampler for treatment.
In September 2000, Wampler stated that Pineda reached maximum medical improvement in June 2000. The record shows that Pineda continued to see Wampler through October 2001. On October 5, 2001, Wampler filled out a work status report for Pineda indicating that she could return to work with a permanent restriction of no lifting greater than 15 pounds.
Pineda testified that she continued to work at Pinnacle until December 2001, when she took maternity leave. In March 2002, Pinnacle laid Pineda off after closing one of its plants. Pineda testified that she began looking for a job in early April and that in July, she became employed with Douglas County as a food service worker . Pineda testified that at that time, she was not experiencing any back pain and was not treating with any doctors. Prior to her employment with Douglas County, Pineda submitted to a functional evaluation, in which Pineda demonstrated the ability to lift and carry 50 pounds.
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