Cline v. COUNTY SEAT LOUNGE, INC.

473 N.W.2d 404, 239 Neb. 42, 1991 Neb. LEXIS 307
CourtNebraska Supreme Court
DecidedAugust 30, 1991
Docket90-1140
StatusPublished
Cited by7 cases

This text of 473 N.W.2d 404 (Cline v. COUNTY SEAT LOUNGE, INC.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cline v. COUNTY SEAT LOUNGE, INC., 473 N.W.2d 404, 239 Neb. 42, 1991 Neb. LEXIS 307 (Neb. 1991).

Opinions

Grant, J.

Plaintiff, Mary Cline, appeals from a decision of the Nebraska Workers’ Compensation Court which awarded her temporary total disability benefits from September 21, 1986, through December 17,1986, due to a cervical strain, and which assigned her a subsequent 15-percent loss in earning capacity. The court denied compensability for a low back injury which was also alleged to have arisen out of and in the course of plaintiff’s employment and denied vocational rehabilitation benefits. We affirm.

The record shows the following: Larry and Mary Cline, husband and wife, opened the County Seat Lounge in Scottsbluff in 1978. The County Seat Lounge was a nightclub featuring noontime lunches and dancing in the evenings. The club seated approximately 425 people and employed 10 to 12 workers. Plaintiff and her husband were coowners and operators of the lounge. Plaintiff testified that her job duties included bookkeeping, doing payroll, ordering food, bartending, and assisting in managing employees. In 1985, defendant-appellee County Seat Lounge was incorporated. [44]*44Plaintiff and her husband were sole shareholders. Plaintiff was secretary and received a salary of $250 per week. Her husband was president, with a salary of $500 per week. The corporation paid workers’ compensation premiums on behalf of all of its employees. At the time of the injury, defendant-appellee Tower Insurance Company, Inc. (Tower), was the workers’ compensation insurance carrier for the lounge.

Plaintiff testified that on September 20, 1986, she suffered an injury on the job while lifting two cardboard boxes of empty beer bottles. She stated that while lifting the bottles, she heard someone call her name and turned her head quickly. She testified that she immediately felt a pain which shot from her neck down into her arm. She continued to work that evening, although she continued to experience pain. She also worked the days following the injury.

Plaintiff first sought treatment for her injury on September 25, 1986. She went to a chiropractor and complained of pain in her neck, in her right arm, and between her shoulder blades, and of numbness in her right hand. She did not complain of low back pain in her initial visit with the chiropractor. The chiropractor took x rays of plaintiff’s upper and lower spine. An insurance form filled out by the chiropractor on October 29,1986, stated that plaintiff alleged injury to “her neck, upper back and right arm.” There was no mention of a low back injury in the report. A letter from the chiropractor addressed to plaintiff’s counsel dated August 25, 1988, stated that in addition to the above-mentioned complaints, plaintiff, at the time of her first visit, had complained of “a left hip and low back pain which periodically radiated into the left leg.”

Plaintiff testified that she saw the chiropractor three times a week for chiropractic treatments between her first visit and December 4, 1986. Treatment included “Chiropractic Manipulation, Trigger Point Therapy and Inter Segmental Traction.” Plaintiff was given a shoulder brace that she wore 24 hours a day.

After December 4, 1986, plaintiff’s treatments were discontinued. Plaintiff testified, over objection, that “[t]he insurance company said it . . . wouldn’t pay for any more chiropractic treatment.” No letter to that effect appears in the [45]*45record. In his August 25, 1988, letter to plaintiff’s counsel, the chiropractor states that “Mrs. Cline discontinued treatment in this office due to a report issued by the Workmen’s Compensation Carrier orthopedic consultant . . . .” The orthopedic surgeon first examined the patient in February 1987.

On December 17, 1986, the chiropractor filled out a “Medical Status Report” form for Tower. The report described the plaintiff’s condition, as of her December 4, 1986, visit, as “intermittent tingling of the right arm and hand with nocturnal paresthesia and premature fatigue of the right arm with usage.” The typed answer to the question “Anticipated date of maximum medical improvement or discharge” stated “approximtely [sic] 2-1-87.” The chiropractor estimated 5 percent permanent partial disability to the “Cervical Thoracic Spine and Right Arm.” The report contained no mention of any low back injury. Plaintiff testified that at the time of her December 4 visit with the chiropractor, her back “was feeling pretty good.” Plaintiff did not seek or receive any medical treatment from December 1986 until December 1989.

On February 9, 1987, plaintiff was examined by defendants’ orthopedic consultant. His recommendation was that the plaintiff give her injury more time and try some home therapy. He said, “At this point, I see no evidence of [a] 5% disability rating.” Plaintiff testified that she did not mention anything about her lower back to the examining doctor because her back was not hurting at the time.

The evidence is sketchy concerning plaintiff’s work history during 1987. There were no timesheets or tax records introduced into evidence. Plaintiff testified that although she generally stayed home, once in a while she would “feel guilty” and “would go in and try to help Larry.” There is some evidence that plaintiff worked at the bar fairly regularly during the months of April and May. She testified that she discontinued going down to the bar after May because business was slow and she could not stand the pain of standing or sitting for too long. Plaintiff also continued to do the paperwork and recordkeeping at home for the business, until the business closed in August 1987 due to financial difficulties.

[46]*46In May 1988, the Clines moved to California. They returned to Nebraska approximately 2 months later. For about 3 months after the Clines returned from California, plaintiff received unemployment compensation benefits from the State of Nebraska.

In the fall of 1988, plaintiff sold Avon cosmetics out of her home, but she soon discontinued this because she found it was not profitable. Plaintiff testified that she has not engaged in any other work, nor has she applied for any other j obs, since the County Seat Lounge closed in August 1987.

Plaintiff filed her petition in the Workers’ Compensation Court on November 23, 1988. The chiropractor saw plaintiff on December 29, 1988, for evaluation purposes. His report of January 9, 1989, stated that it was his opinion that due to the interruption in plaintiff’s care, her condition had deteriorated from an acute to a chronic condition. He recommended 50 to 70 chiropractic treatments over the next year at an estimated cost of $1,700 to $2,400. He found that impairment to the cervicothoracic spine and to the lumbar spine caused claimant to suffer a 15-percent whole body impairment.

In April 1989, plaintiff sought assistance from the Nebraska Division of Rehabilitation Services. A rehabilitation counselor with the division gave conflicting testimony as to plaintiff’s employability. On direct examination, he stated that he found that plaintiff was not employable in any type of employment and that she was not a candidate for rehabilitation services. On cross-examination, he stated that based on the work restrictions contained in her medical reports, plaintiff had a number of transferable job skills and was qualified for a number of jobs for which she had prior training and experience. He also testified that one of the principal obstacles to plaintiff’s returning to work was significant anxiety, frustration, and depression. He noted that he had forwarded a job lead to plaintiff that he felt she was qualified for, but that she took no action on it.

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Cline v. COUNTY SEAT LOUNGE, INC.
473 N.W.2d 404 (Nebraska Supreme Court, 1991)

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Bluebook (online)
473 N.W.2d 404, 239 Neb. 42, 1991 Neb. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cline-v-county-seat-lounge-inc-neb-1991.