Sweeney v. Kerstens & Lee12/16/2003
INTRODUCTION
Robert Sweeney appeals from an order of the review panel of the Workers' Compensation Court affirming an order entered by the trial court of the Workers' Compensation Court finding that Sweeney's medical bills related to his psychiatric treatment were not causally related to Sweeney's accidents and resulting injuries sustained while he was working for Kerstens & Lee, Inc. For the reasons set forth below, we reverse, and remand with directions.
BACKGROUND
Initially, Sweeney was injured on November 14, 1997, while employed with Kerstens & Lee, when he was working in a trench and a large dirt clod struck him on the head. Doctors subsequently diagnosed Sweeney with neck strain and headaches. Sweeney went through physical therapy and was released to return to work on September 8, 1998. On September 10, Sweeney was working as an "'up man,'" laying water and sewer pipe. While guiding a pipe into a trench, the pipe jerked, and Sweeney developed numbness and pain in his neck and arms. Subsequently, Dr. Stephen Doran, a neurosurgeon, recommended surgery, but Sweeney's scheduled surgery was later canceled by Sweeney's insurance company.
Trial was held on February 28, 2000, and the trial court issued its initial award on March 9. In that order, the trial court found that Sweeney suffered injuries as a result of accidents occurring on November 14, 1997, and September 10, 1998. The trial court found that because of his November 14, 1997, injury, Sweeney suffered a period of 264/7 weeks of temporary total disability and was entitled to a 5-percent permanent loss of earning power. As to Sweeney's September 10, 1998, accident, the court found Sweeney to have been temporarily totally disabled beginning on September 14. The trial court also ordered Kerstens & Lee to pay for Sweeney's surgery.
By December 2000, both parties agreed to the court's appointment of Michael Newman as Sweeney's vocational rehabilitation counselor, whose services were to include an evaluation of Sweeney's earning power. In a letter dated March 28, 2001, to Sweeney's attorney, Newman stated that in his opinion, Sweeney was experiencing moderate to severe vocational adjustment. Specifically, Newman stated:
In other words [Sweeney] is seriously struggling from an emotional loss standpoint and finds it difficult to make a concrete vocational decision at this point. There is further evidence of depression marked by sadness, anger, and loss of purpose. Said another way . . . Sweeney is grieving his loss of physical ability, subsequent job loss and the ability to earn his own way.
Newman noted that regardless of this fact, Sweeney was nothing less than 100 percent cooperative and was unquestionably committed to becoming reemployed.
In June 2001, the trial court adopted Newman's vocational rehabilitation plan for Sweeney, which plan included job placement. Under that plan, Sweeney spent the summer and early fall of 2001 pursuing reemployment. The record shows that even though Sweeney was aggressive in his job search, he did not receive any job offers due to his physical limitations, his lack of a high school diploma or a diploma through GED, and his illiteracy.
On January 20, 2002, Newman completed a loss of earning power assessment for Sweeney, which showed that as a result of his injuries, Sweeney sustained a loss of earning power in the range of 55 to 60 percent.
On February 21, 2002, Kerstens & Lee filed an application to modify Sweeney's previous award. In that application, Kerstens & Lee asked the court to find that Sweeney had reached maximum medical improvement and to determine the level of
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