Scott v. Drivers Mgmt.

Citation: Not availableDocket: A-16-393

Court: Nebraska Court of Appeals; June 6, 2017; Nebraska; State Appellate Court

Original Court Document: View Document

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Mariatou Scott sustained a work-related injury on March 20, 2010, while employed as a student driver for Drivers Management, LLC, resulting from a fall from a truck's bunk bed. She initially pursued her claim in Georgia but later filed a petition with the Nebraska Workers’ Compensation Court on July 8, 2011, citing injuries to her lower back, groin, left ankle, left foot, left hip, and right leg. The court awarded Scott temporary and permanent disability benefits but denied future medical care and vocational rehabilitation services, determining she had reached maximum medical improvement (MMI). 

During the trial on December 11, 2015, Scott testified that her disability was multifaceted, affecting not just her knee but also her back and hips. She claimed to have been in good health prior to her employment with Drivers Management. However, on cross-examination, medical records revealing a history of chronic back issues dating back to 1996 were presented, contradicting her assertions. These records noted ongoing complaints and previous compensation claims, with a physician expressing concerns about her condition and treatment history. Despite this, Scott contested the accuracy of these records, asserting that they were false. The appeal was ultimately affirmed by the Nebraska Court of Appeals on June 6, 2017.

On March 22, 2002, medical records indicated Scott experienced pain in her knees and ankles, with multiple rheumatologic evaluations noted, which Scott denied ever occurring. She responded to a January 2003 record of intermittent back pain by attributing it to asthma rather than her current condition, despite documented complaints of pain radiating from her back to her head. An August 2007 record mentioned leg pain and chronic ankle swelling, which Scott denied. In October 2009, Scott reported pelvic pain and right leg radiculopathy but attributed her right-side pain to lifting heavy boxes during a move to Tennessee. On December 1, 2009, she reported back pain radiating to her right leg and groin, with her doctor suspecting a hernia due to lifting. When applying for a trucking job with C.R. England, Scott completed a health history form on December 13, 2009, denying any injuries or problems, which she claimed were truthful as she did not have chronic issues at that time. She worked there until March 1, 2010, leaving for a position at Drivers Management. During a DOT physical on March 12, 2010, Scott again denied health problems. On March 20, 2010, she sustained an injury while getting down from her bunk in the truck, missing a step and landing hard on her feet, resulting in pain in her knee, back, leg, and hips, particularly the right side. This incident was challenged by opposing counsel, referencing earlier proceedings related to her work injury filed in Georgia.

Scott testified during her deposition on March 18, 2011, regarding an injury sustained while descending from a top bunk bed, stating that her knee popped before she hit the truck’s floor. She informed her driving partner of her pain but continued driving until the next day. On March 21, 2010, they arrived at the Lithia Springs terminal in Georgia, where she was scheduled for a medical evaluation at Concentra on March 22. Dr. Shaun Brownlee documented that Scott injured her right knee while climbing down the bunk, diagnosing her with a knee strain and lateral collateral ligament strain, but noted no complaints of back or other pain.

Scott disputed the accuracy of Dr. Brownlee’s records, asserting that they did not reflect her complete condition. After beginning modified duty on March 24, 2010, she experienced new symptoms, including pain in her leg, hip, and back, which she also claimed were inaccurately reported. Following her final visit to Concentra on March 26, where she continued to report soreness, Scott chose to stop treatment, citing inadequate care for her injuries.

Scott left her job with Drivers Management on the same day and moved to New York to access workers’ compensation treatment. On April 2, 2010, MRIs in New York revealed normal lumbar spine conditions and mild osteoarthritis in her right knee. Subsequent evaluations by Dr. Gabriel Zatlin and Dr. Eugene Bulkin identified degenerative disk disease without significant stenosis, leading to recommendations for physical therapy and further testing. During a follow-up on June 18, 2010, Dr. Bulkin found no signs of active lumbar radiculopathy or other neuropathies and referred Scott to an orthopedic surgeon for additional care.

On June 29, 2010, Scott underwent a physical examination by Dr. Miyasaka, who ordered an MRI that revealed a partial MCL tear/strain, preexisting patellofemoral osteoarthritis, and right lower leg sciatica. Despite Dr. Miyasaka recommending physical therapy, Scott expressed skepticism about its effectiveness. The August 31 medical record from Dr. Miyasaka was later withdrawn from evidence. On the same day, Dr. Bulkin evaluated Scott, noting mild degenerative disk disease at the L4-5 and L5-S1 levels, along with disk herniation and foraminal stenosis, recommending a surgical consultation for knee and hip issues.

Scott returned to Dr. Bulkin on August 17 for lower back pain, during which Dr. Bulkin identified lumbosacral radiculopathy and spondylosis, prescribing an epidural steroid injection and continued physical therapy. Scott reported significant discomfort following the steroid injections. On August 20, Dr. Steven Levine diagnosed Scott with lumbago, imposing physical activity restrictions while allowing her to return to work on August 23.

On August 28, 2010, Scott fell, injuring her left arm when her knee gave out. An emergency room visit on September 2 confirmed no wrist fractures, but Dr. Miyasaka later diagnosed a radial head fracture in her left elbow. Following a visit to Dr. Zatlin on October 13, Scott was referred to a specialist at Bellevue Hospital. An October 14 report indicated worsening right leg pain after a second fall, with difficulties in evaluating strength due to pain and possible secondary gain issues.

On October 28, Dr. Eugenius Harvey conducted a consultative examination, noting Scott's right-sided lower back and knee pain. He acknowledged her previous treatments, confirming degenerative disk disease and mild disk protrusion. The examination showed normal thoracic and lumbar spines, with some tenderness and positive straight leg raise on the right. Dr. Harvey diagnosed lumbosacral radiculopathy, spondylosis, and a partial MCL tear with patellofemoral osteoarthritis in the right knee.

In December 2010, Scott was diagnosed with right lumbar radiculopathy by Dr. T.R. Swaminathan, who observed a sensory deficit and muscle weakness in her right lower extremity. An MRI indicated a minimal central disk bulge without significant stenosis. This diagnosis aligned closely with earlier assessments by Drs. Bulkin and Harvey. Following this, Dr. Dermot Reynolds performed arthroscopic surgery on Scott's right knee in March 2011. Post-surgery, Scott reported pain and weakness but no serious complications were documented. In May 2011, she returned to Dr. Reynolds with back pain, and he recommended continued physical therapy. 

On November 7, 2011, Dr. William Kennedy conducted an independent evaluation, giving Scott a 3-percent whole body impairment rating, consistent with Dr. Bulkin's findings, although the full report is missing from the records. In January 2012, Scott consulted Dr. Ryan Chatelain for foot pain, who suspected radiculopathy and noted degenerative disk disease. After an electromyography (EPG) test, he found no evidence of significant nerve issues. Scott then saw Dr. Benjamin Knox, who evaluated her persistent lower back pain and determined that her condition was not serious, advising her to manage the pain and stay active, with no subsequent follow-up recorded.

In July 2012, Scott had another MRI, interpreted by Dr. Douglas Philips, revealing mild degenerative disk disease and an annular fissure at L5-S1. In November 2012, Dr. David Hyams examined Scott, noting minimal disk disease and normal electrodiagnostic results, suggesting continued physical therapy. During a follow-up in January 2013, Dr. Hyams remarked that Scott had not provided MRIs documenting her mild degenerative disk disease.

Scott received unsuccessful epidural injections for pain management and was recommended for a comprehensive pain management program. In September 2013, an MRI at Weill Cornell Medical Center showed maintained vertebral alignment with no signs of spondylolisthesis or spondylolysis, though minimal disk space narrowing at L5-S1 was noted. Scott continued seeking treatment for her lower back pain from various providers between October 2013 and December 2015, including visits to New York Presbyterian Hospital and Bronx Island Musculoskeletal Care, which yielded no new diagnoses. Dr. Michael O’Neil reviewed Scott's medical records and reported that she had a radial articular tear leading to a partial medial meniscectomy, resulting in a 2-percent permanent impairment rating for her knee. Regarding her chronic low back complaints, Dr. O’Neil concluded that Scott reached maximum medical improvement (MMI) by January 10, 2012, and found no entitlement to permanent impairment or restrictions related to her back injury from March 20, 2010. He suggested no further treatment was necessary. Dr. Sana Bloch later identified MRI evidence of disk bulges but could not correlate them with Scott's symptoms, hypothesizing a likelihood of permanent symptoms due to their persistence over five years. Scott had a brief job as a public health advisor in July 2010 and was actively job searching thereafter. The compensation court, on March 14, 2016, awarded Scott 4.3 weeks of permanent benefits for a 2 percent loss of use of her right leg based on Dr. O’Neil's findings, while noting that her back condition had reached MMI with no additional treatment options available. The court's order detailed Scott's medical history, including her back complaints dating back to 1990 and the circumstances of her injury in March 2010.

The compensation court determined that Scott had no permanent impairment or restrictions and required no further treatment for her back and right leg pain, based on Dr. O’Neil’s report. The court acknowledged that while there was no clear date of maximum medical improvement (MMI) for Scott's knee injury, MMI for her low back injury was reached on January 10, 2012. Temporary benefits were awarded from March 25, 2010, to January 10, 2012. Additionally, Drivers Management was ordered to pay for certain medical expenses related to knee and low back treatments, with credits for prior payments. Future medical care and vocational rehabilitation claims were denied, prompting Scott's appeal.

Scott's brief lacked a specific section for assignments of error, which is required under Neb. Ct. R. App. P. 2-109(D)(1)(e). Consequently, the court may review for plain error, defined as evident mistakes that could damage the integrity of the judicial process. Although Scott claimed the court erred in concluding she reached MMI for her lumbar spine due to ongoing medical treatments, she did not contest the court's findings regarding her knee or other elements of the decision. Thus, the review focused solely on the MMI determination. The court clarified that MMI signifies the point at which a claimant has attained maximum recovery from all injuries related to a compensable event, and that this determination is generally a factual question. Appellate findings of fact from the compensation court are treated as jury verdicts and are upheld unless clearly erroneous.

The Workers’ Compensation Court serves as the sole judge of witness credibility and the weight of their testimony. Evidence supporting its findings must be viewed favorably for the successful party, resolving all disputed facts in their favor and granting reasonable inferences from the evidence. In cases with conflicting medical reports, appellate courts defer to the compensation court's discretion in evaluating medical evidence. The court is not obligated to accept medical expert opinions, regardless of contradictions. 

In this case, the court reviewed Scott’s medical history, which began on January 31, 1990, focusing on her chronic back issues. Although Dr. William Kennedy noted a 3-percent whole person permanent impairment from an independent medical examination on November 7, 2011, the court found that no records from this examination were presented. Instead, it favored the opinion of Dr. O’Neil regarding Scott's maximum medical improvement (MMI) and the impact of the March 20, 2010, accident on her preexisting condition. Dr. O'Neil concluded that Scott reached MMI by January 10, 2012, after Dr. Knox, who found no serious issues, indicated he had no further treatment options. Scott, however, criticized Dr. Knox for his lack of attention to her MRI evaluations, alleging bias due to her lack of insurance.

Dr. O'Neil agreed with Dr. Knox’s assessment, asserting that Scott had no permanent impairment or restrictions and did not require further treatment. He noted a long history of low back pain without significant findings across multiple medical evaluations and imaging studies, attributing her mild degenerative disk disease to normal aging. Despite agreeing there was no permanent impact from the 2010 accident, the court ordered Drivers Management to cover Scott's medical treatment until her MMI in January 2012.

Temporary treatment of Scott’s low back pain does not contradict a finding of zero permanent impairment due to evidence of preexisting complaints and Dr. O’Neil's conclusion of no objective abnormalities. The compensation court's reliance on Dr. O’Neil’s opinions and supporting medical records is upheld. Scott contends that certain exhibits demonstrate her lumbar spine was not at maximum medical improvement (MMI) as of January 10, 2012, but many of these records predate this date and were thus not considered relevant to the MMI determination. The court also notes that subsequent medical records do not establish a causal link between ongoing symptoms and the 2010 accident. Scott's claim that the court erred by not referencing four specific exhibits is rejected, as the court is not required to address every piece of evidence presented. The compensation court has the discretion to accept one medical expert's opinion over another, and it provided a detailed account of Scott's medical history related to the accident. It is affirmed that Scott reached MMI on January 10, 2012, with no permanent restrictions or impairment resulting from the accident. The appellate court will not intervene in the compensation court's decisions regarding evidence. The court's March 14, 2016 award is affirmed.