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Propp v. Wilfarm L.L.C.6/17/2003
(Not Designated for Permanent Publication)
INTRODUCTION
Wilfarm L.L.C. and Farmland Insurance Nationwide Agribusiness appeal from the order of the Workers' Compensation Court review panel affirming in part and in part reversing and remanding the decision of the Workers' Compensation Court. For the reasons stated herein, we affirm in part, in part reverse, and remand with direction.
BACKGROUND
On December 28, 2000, Kenneth E. Propp filed a petition in the Nebraska Workers' Compensation Court alleging that on or about June 26, 1999, he was injured in an accident arising out of and in the course of his employment with Wilfarm. Propp alleged that the matters in dispute were the nature and extent of his injuries, the extent of his disability and right to compensation, his right to vocational rehabilitation, and the payment of future medical expenses, penalties, interest, and attorney fees. The matter came on for hearing on November 8, 2001.
The evidence adduced at the hearing established the following: Propp began working for Wilfarm in 1998 and also worked during the sugar beet season at Western Sugar for approximately 13 years. Propp testified that he drove a delivery truck for Wilfarm and that he delivered both palletized and liquid fertilizer to area retailers. According to Propp, Wilfarm operated two delivery trucks, one of which continued to operate year round. He testified that he generally worked at Wilfarm during the spring and summer months. He indicated that he would work for an unspecified period of months, would be laid off during slow periods, and would be hired back when the workload increased again. The parties stipulated that Propp had an average weekly wage of $289.33 if his employment was characterized as seasonal and $437.41 if it was not.
On or about June 26, 1999, Propp was involved in an accident. Neither party contested that Propp was injured in an accident while employed by Wilfarm, and the parties likewise did not dispute that the accident arose out of and in the course of Propp's employment with Wilfarm. As a result of the accident, Propp suffered an intertrochanteric fracture (a broken femur at the hip). On June 26, Dr. Wendell Ropp performed open surgery to repair Propp's fracture, placing pins and screws into the femur. Propp testified that since the accident, he walks with a limp and experiences pain in his leg, hip, lower back, and shoulder. The intensity of Propp's hip pain increased in early 2001, and he was diagnosed as having greater trochanteric bursitis which was caused by the hardware employed to repair the fracture. Dr. Ropp indicated in his medical notes that if Propp's pain continued, the hardware and the bursa, a fluid-filled sac which prevents friction between muscle and bone, may have to be removed. Propp was referred to Dr. James Andrews, who first saw Propp on March 6, 2000.
In a medical note dated March 6, 2000, Dr. Andrews stated that Propp had a significantly antalgic gait on the left side, which Dr. Andrews described as a painful walk, a limp, and "a shortened stance to get off of the limp"; tenderness at the gluteus medius insertion on the left greater trochanter; and reduced range of motion in the internal rotation of the left hip as well as reduced range of motion in the quadriceps and rectus femoris. On April 26, Dr. Andrews diagnosed Propp as having "probable gluteus medius enthesopathy of the left hip" secondary to Propp's altered gait. He testified that Propp had gait problems related to the fracture causing Propp to experience hip, back, and shoulder pain and also causing significant work restrictions. Propp required frequent postural changes, could not walk long distanc
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