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Vogl v. Crest View Care Center12/23/2003
(not designated for permanent publication)
INTRODUCTION
Crest View Care Center, its claims management service, and its workers' compensation insurance carrier (collectively Crest View) appeal and Nancy M. Vogl cross-appeals from an order of the Nebraska Workers' Compensation Court review panel, which affirmed in part and reversed in part the trial court's award to Vogl. For the reasons set forth below, we affirm the decision of the review panel.
BACKGROUND
Vogl filed an amended petition in the Workers' Compensation Court alleging that on September 8, 1998, while working for Crest View Care Center as a nurse, she injured her right shoulder and neck in an accident arising out of and in the course of her employment with Crest View Care Center when she assisted a patient who was falling out of bed. The amended petition sought workers' compensation benefits for such injuries.
The trial court found that Vogl suffered injuries to her back and right arm, which injuries arose out of and in the course of her employment. The trial court noted that based on the medical records, Vogl has sought treatment from numerous physicians and has been diagnosed as having complex regional pain syndrome, reflex sympathetic dystrophy, and cervical dystonia. The trial court also found that Vogl has undergone various diagnostic procedures and conservative medical treatment including numerous trigger point injections, Botox injections, and treatment at the Mayo Clinic. The trial court found that as a result of the work-related accident, Vogl was temporarily and totally disabled from November 1, 1998, to August 25, 2000, and permanently and totally disabled after August 25. In determining that Vogl is permanently and totally disabled, the trial court relied on a letter authored by Dr. Brett Lawlor, dated August 25, 2000, stating that Vogl had reached maximum medical improvement (MMI) and further stating that Vogl suffered a combined permanent impairment of 11 percent to the body as a whole. The trial court further found that Vogl has been given numerous restrictions by various treating physicians, and it also relied on a report of a vocational rehabilitation counselor, dated November 19, 2001, which opined that Vogl was incapable of performing any work at the time of the report. The trial court determined that the report was entitled to a rebuttable presumption of correctness.
The Workers' Compensation Court review panel reversed the trial court's finding that Vogl became temporarily and totally disabled on November 1, 1998, and found that Vogl's temporary total disability commenced on November 1, 1999. The review panel affirmed the trial court's order in all other respects. Crest View appeals from the review panel's order, and Vogl cross-appeals.
ASSIGNMENTS OF ERROR
Crest View assigns that the trial court erred in (1) finding that the report of the vocational rehabilitation counselor was entitled to a rebuttable presumption of correctness and (2) finding that Vogl is permanently and totally disabled.
On cross-appeal, Vogl assigns that the review panel erred in finding that the trial court was clearly wrong in its determination that Vogl's temporary total disability commenced on November 1, 1998.
STANDARD OF REVIEW
An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compe
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