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Poellot v. Sioux City Stationery Co.1/18/2005
arose out of and in the course of employment is clearly one of law, in connection with which a reviewing court has an obligation to reach its own conclusions independently of those reached by the inferior courts. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). If the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).
In support of his argument, Poellot relies upon Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991). In Miner, the employee claimed that an accident sustained while he was moving a refrigerator caused him to suffer a herniated disk requiring a lumbar spinal fusion. To support his claim, the employee offered an entry from the office notes of his treating doctor which stated in pertinent part:
" ncidentally, [the employee] tells me that the insurance company told him that the second accident when he was lifting a refrigerator was not the cause, but was related to the first accident and as I have told [the employee] there is a 10% recurrence after you have had a previous disc problem and certainly the timing of the lifting of the refrigerator and the pain that he developed afterwards, suggests that indeed the injury that he had when he lifted the refrigerator is what caused his recurrent disc problem."
Id. at 532, 476 N.W.2d at 860.
The trial judge in Miner concluded that the employee's injuries were caused by the workplace accident, but on rehearing, the compensation court dismissed the petition after finding that the doctor's office-note entry quoted above was insufficient as a matter of law because the opinion therein was not expressed with a reasonable degree of medical certainty or probability. On appeal, the Nebraska Supreme Court disagreed. The appellees in that case argued that "'suggests'" as used in the office-note entry was not sufficiently definite. Id. at 532, 476 N.W.2d at 860. However, the Supreme Court reasoned that the larger context of the doctor's report showed that the doctor disagreed with the insurance company's conclusion that the accident did not cause the employee's injuries; it further reasoned that the doctor's notes did not give rise to conflicting inferences, but, rather, indicated that the accident caused the injuries for which the employee was seeking compensation.
In the instant case, Poellot saw Biga on March 14, 2002, and Biga's record noted that Poellot had worked on copiers for almost 15 years, that he was on his hands and knees a lot, and that he had problems with pain in his knees. Biga diagnosed the problem as degenerative joint disease of the left knee. In a letter dated August 30, 2002, Biga stated that he had noted calcific tendonitis and that " ne would get calcific tendonitis from repetitive motion. In my medical opinion the calcific tendonitis would be related to frequent flexing of the knees and lifting." Poellot again saw Biga on March 28, 2003, and Biga then diagnosed the problem as bilateral knee pain, with pain in the right knee greater than that in the left knee. An MRI performed on Poellot's right knee on March 31 showed mild prepatellar bursitis, and in a letter dated April 5, 2003, Biga stated that Poellot had swelling and bursitis "which is related to overuse of an extremity or trauma to the extremity."
Poellot's argument on appeal from the review panel focuses solely upon his contention that the trial judge erred in determining, as a matter of law, that Biga's opinions were insufficient to establish a causal relationship between P
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