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Longe v. Hawkins Construction Co.3/15/2005
rror in. In reaching out to push the mirror back with first his left arm and then his right arm, he felt pain in his neck. In response to the question, "And the mirror pushing incident was the first week you were back, and that was August 7th, the week of August 7th," Longe stated, "That's when I went back to work, yes." Longe also testified in his deposition that he first began experiencing neck pain "the first week or early part of the second week" after he returned to work. Although Longe was not released to return to work until August 14, 2000, he testified that he returned to work August 7. Obviously, there is much confusion and conflict in Longe's testimony, as well as in the record as a whole, but the resolution of such is for the trial judge. And, there is in fact some evidence, albeit inconsistent with other evidence, which puts the mirror-pushing incident around the end of August. Specifically, Longe said that such incident occurred 1 to 2 weeks after he returned to work, and Dr. Brown and Theiler both recounted histories given to them by Longe which would put the incident and outset of neck pain near the end of August.
An injured worker has the burden to prove the causal connection between the alleged injury , the employment, and the disability, and unless the injury is objective and plainly apparent, the worker must present legally competent medical testimony regarding that causal connection. See Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (1998). Although both Drs. Brown and Treves opined that Longe's neck injury is work-related, and the trial judge relied thereupon, neither doctor precisely attributed Longe's neck injury to the mirror-pushing incident--although their reports could be read as suggesting such in an oblique way. For example, Dr. Treves wrote, " here was significant exacerbation of [Longe's] symptoms due to the work he performed." Dr. Brown stated that the neck injury was "causally related to [Longe's] work duties at Hawkins and especially related to the duties he was required to perform in August and September of 2000 after he was released to light duty activities" and that "most of the symptoms in his neck . . . were secondary to overuse." While Dr. Brown says nothing about the mirror incident, his opinion references the same time period--shortly after Longe returned to work after his shoulder surgery.
Dr. Treves opined that the injury Longe suffered "is a direct result of employment by Hawkins . . . . In my medical opinion, the repetitive injury to . . . Longe's neck in his work environment, Hawkins . . ., led to development of severe arthritis at several cervical levels resulting in neck and bilateral shoulder pain." Dr. Treves also stated that Longe's condition was worsened by his performance of heavy labor and the work he performed. Clearly, the evidence from Drs. Treves and Brown is that the neck problem at issue was caused or aggravated by repetitive trauma at the workplace, and in an indirect way, both doctors may have referenced the mirror incident. We believe that the trial judge's findings reflect the reality that while the worker may point to a single, discreet point in time when the injury occurred, the medical evidence may reveal that a repetitive or overuse process has been occurring and symptoms thereof may be "set off" through a particular incident, which may be "identified as the culprit" by the worker. See Jordan v. Morrill County, 258 Neb. 380, 603 N.W.2d 411 (1999) (while worker was required to seek medical attention for condition for which compensation was being claimed, worker was not required to know causation of condition when medical attention was sought).
It is well known that compensation for repetitive trauma injuries
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