 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Longe v. Hawkins Construction Co.3/15/2005
st 2000, the variance between the pleadings and the proof was not material. The judge stated that on August 30, Longe was employed by Hawkins as a truckdriver, and that "on said date and while engaged in the duties of his employment he suffered injury as a result of an accident arising out of and in the course of his employment by [Hawkins] when [Longe] developed cervical symptoms after a return to work from left shoulder surgery." The judge said that on or about August 30, while attempting to adjust an outside mirror, Longe felt a sharp pain in his neck. The trial judge recited in his decision that Longe's physical therapist and surgeon opined that the mirror incident was the event that precipitated "significant neck pain with radiculopathy." The judge explained that he relied on exhibits 10, 11, and 25 for proof of medical causation. Therefore, the trial judge found that Longe was entitled to workers' compensation benefits.
Hawkins appealed the trial judge's order to a three-judge review panel of the Workers' Compensation Court. The review panel determined that because the trial judge failed to address the issue of notice raised in both the petition and the answer, the award was not a final, appealable order, and that the review panel had no jurisdiction. The appeal was dismissed, and the cause was remanded for further proceedings.
On March 28, 2003, the trial judge entered an order finding that Longe provided notice of the injury to Hawkins as soon as practicable and that " ll other provisions of the award of July 17, 2002 remain in full force and effect." Hawkins again appealed to the review panel. In an order entered March 24, 2004, the review panel determined that the trial judge "found two bases for awarding benefits" a repetitive injury occurring on August 30, 2000, and a specific incident occurring on August 30. The specific incident is obviously the mirror incident in which Longe was driving the cement truck and tried to push the mirror out with his left arm and then his right arm, after which incident Longe felt immediate and severe pain in his neck. Hawkins argues that the mirror incident did not occur on August 30, and that even if it did, there was no medical opinion saying that it caused the injury and disability.
In determining whether the mirror incident occurred on August 30, 2000, the trial judge relied on Dr. Brown's report, exhibit 25, and on Theiler's testimony regarding her progress notes. Both Dr. Brown's report and Theiler's notes were dated September 18, 2000. Dr. Brown's report and Theiler's notes indicated the mirror incident occurred within 2 weeks prior to Longe's September 18 visit with each of them. And while the evidence is not completely precise and consistent regarding the date of the mirror incident, to say nothing of the obviously erroneously pled date of injury of July 1, we must view the evidence most favorable to Longe. When we so view the evidence and remember that workers do not always pin down the date of an occurrence with exactitude, we cannot say that the trial judge's selection of August 30 as the date of the mirror incident is without evidentiary support and is clearly erroneous. We remember, of course, that even though the evidence might wander a bit on the precise date, it is necessary that a workers' compensation award have a date of accident, whether it is a solitary incident or a repetitive use injury, the latter being assessed under the statutory criteria for accidents. See Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).
Longe testified that the first time he experienced neck symptoms was when he was driving the cement truck and he hit the paving machine, which knocked his truck's mi
Page 1 2 3 4 5 6 Nebraska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|