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Longe v. Hawkins Construction Co.3/15/2005
(not designated for permanent publication)
INTRODUCTION
Hawkins Construction Company (Hawkins) appeals the decision of the Nebraska Workers' Compensation Court review panel which affirmed the decision of the Workers' Compensation Court trial judge finding that Dwain Longe had suffered a compensable neck injury arising out of and in the course of his employment with Hawkins.
FACTUAL BACKGROUND
At the time of the accident, Longe had been employed with Hawkins for about 11 or 12 years as a truckdriver. In the fall of 1999 during his employment with Hawkins, Longe suffered an injury to his left shoulder, which injury required surgery. Following his shoulder surgery, he received physical therapy from Mary Theiler. Longe testified that he returned to work at Hawkins around August 7, 2000, doing light-duty work. However, other evidence establishes that he was not released to return to work until August 14. Longe testified that within his first or second week back at work, he injured his neck. He stated that the accident occurred while he was driving a cement truck at Eppley Airfield in Omaha, Nebraska. He was maneuvering the truck into position when he hit a paving machine, knocking in his truck's side mirror. He attempted to push the mirror out with his left arm, but could not do so due to pain. So he reached across with his right arm to push, and he felt a pain in his neck. Longe continued working that day.
Theiler, Longe's physical therapist, testified that while Longe later complained of suffering from neck pain in early June 2000, he was not complaining of such before August, after he returned to work. She testified that during a follow-up visit on August 16, Longe had complaints of severe neck pain and exhibited "significant guarding stiffness in his neck." In Theiler's testimony, she said she recalled that Longe told her of an incident where he tried to adjust a mirror and "felt something at that time" and that Longe said his pain got "significantly" worse. However, on cross-examination, she admitted that her August 16 written progress report did not contain such complaints or any indication of such incident. She also testified on cross-examination that her September 18 progress report for Longe stated that he experienced a strain of the "left shoulder" 11/2 weeks prior, while reaching out to push a side mirror.
Dr. Stephen Brown performed Longe's shoulder surgery, and after a follow-up visit on September 18, 2000, Dr. Brown noted in his report that Longe had been having "increased muscle spasms into his neck" and that Theiler's note indicated that Longe "has had significant increase in shoulder and neck stiffness since his return to work." The report then stated, "The patient also feels that he strained his left shoulder approximately two weeks ago when he was reaching out to push a side mirror and he is somewhat frustrated by the shoulder at this time." In a December 11 report, Dr. Brown stated:
[Longe's] biggest problem has been with right-sided cervical and trapezius dysfunction. This has been felt to be due to overuse of the right shoulder during the time that he went back to work and the excessive physical strain that he was subjected to at the time he returned to work in August and September.
In January 2001, Longe was evaluated at a neurosurgical clinic. In March 2001, Dr. John Treves, a neurosurgeon, performed neck surgery on Longe consisting of a "multi-level decompression, fusion and reconstruction with a cervical plate."
Dr. Brown opined in a letter to Longe's counsel, "I certainly think that within a reasonable degree of medical probability, the neck injury is causally related to [
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