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Swoboda v. Volkman Plumbing12/23/2004
Jeff Swoboda sought workers' compensation benefits for injuries allegedly arising out of and in the course of his employment with Volkman Plumbing. Swoboda sought benefits for injuries to his head and neck resulting from an accident on April 21, 2000, and for injuries to both shoulders allegedly resulting from repetitive trauma. The trial judge found that the head and neck injuries were compensable, but concluded that Swoboda had failed to prove a work-related accident and resulting injuries to his shoulders. A review panel of the compensation court reversed in part, and remanded for further proceedings. Volkman Plumbing and its insurance carrier, EMCASCO Insurance Company (collectively Volkman), perfected this timely appeal, which we moved to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb. Rev. Stat. ยง 24-1106(3) (Reissue 1995).
FACTS
Swoboda began working at Volkman Plumbing in Norfolk, Nebraska, in 1990. He was initially employed as a plumber's helper but soon became a foreman. His duties included overhead ceiling work, which involved heavy lifting. He regularly performed such overhead activities for at least 3 or 4 hours a day, and sometimes for an entire shift.
On April 21, 2000, Swoboda sustained an injury to his head and neck when he struck his head on a sprinkler head while climbing a ladder. Swoboda sought medical treatment for the injury and was off work from May 1 until September 9, 2000. He initially returned to work without restrictions. However, Swoboda continued to experience chronic headaches and pain, and in March 2002, specifically due to the neck injury, his physician imposed physical restrictions of "no overhead work or prolonged cervical flexion." In April, his physician opined that there was no ongoing treatment that would significantly improve Swoboda's symptoms and concluded that he had a 5-percent permanent partial impairment of the body as a whole. A second physician had earlier made the same assessment, noting that Swoboda suffered "persistent myofascial symptoms and functional deficit." The trial court concluded that as a result of this injury, Swoboda had sustained a 45-percent loss in earning capacity.
Swoboda also claimed compensation for work-related injuries to both shoulders. Swoboda went on a fishing trip to Canada over the Labor Day weekend of 2001. He is right handed, and holds a fishing pole in his right hand while reeling with his left. Swoboda slept in a tent while on the fishing trip. One morning when he awoke, he experienced extreme pain and was unable to move his left arm. When he returned to Nebraska, he made an appointment with Dr. Gregory Nunez for September 6, 2001. Prior to the fishing trip, Swoboda had experienced aching in his right shoulder and "a little" pain in his left shoulder. In his words, he had had "problems with both shoulders for [years]" and his left shoulder had "hurt for a [year] or two."
After examining Swoboda, Nunez ordered an MRI and referred him to Dr. Terry Schwab, an orthopedic surgeon, who began treating him on September 20, 2001. A report of an MRI performed on the left shoulder on September 12, 2001, indicated a "full thickness tear" in the supraspinatus tendon adjacent to an area of calcification. After his first examination of Swoboda, Schwab noted his disagreement with this diagnosis. Schwab's initial diagnosis was " artial rotator cuff tear/tend nitis left shoulder with calcific tend nitis." During his second office visit, Swoboda told Schwab that he was surprised that his left shoulder was injured because his right shoulder "had been the one that had bothered me." Schwab thereafter began treating
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