Frank v. a & L INSULATION

594 N.W.2d 586, 256 Neb. 898, 1999 Neb. LEXIS 94
CourtNebraska Supreme Court
DecidedMay 14, 1999
DocketS-98-082
StatusPublished
Cited by28 cases

This text of 594 N.W.2d 586 (Frank v. a & L INSULATION) 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
Frank v. a & L INSULATION, 594 N.W.2d 586, 256 Neb. 898, 1999 Neb. LEXIS 94 (Neb. 1999).

Opinions

Hendry, C.J.

PROCEDURAL HISTORY

Raymond L. Frank worked for A & L Insulation (A & L) from 1990 until August 1995. Frank claims that during this time he sustained injuries to his wrists, elbows, and shoulders due to the repetitive motions he was required to use while employed at A & L. As a result, Frank filed suit against A & L in the Nebraska Workers’ Compensation Court for the injuries he allegedly sustained during the course of his employment. The compensation court determined the evidence established causation and awarded Frank $347.50 per week starting from the date of his disability, August 8. The compensation court also ordered A & L to pay for all future medical expenses relating to Frank’s wrists, elbows, and shoulders. The Workers’ Compensation Court review panel affirmed. A & L thereafter appealed to the Nebraska Court of Appeals and argued that Frank failed to prove his injuries were caused by or arose out of and in the course of his employment. The Court of Appeals reversed, finding no evidence of causation. Frank v. A & L Insulation, No. A-98-082, 1988 WL 755461 (Neb. App. Oct. 27, 1998) (not designated for permanent publication).

[901]*901Frank subsequently filed a petition for further review. We granted Frank’s petition for further review and now reverse the Court of Appeals’ decision and remand the cause with directions.

SUMMARY OF FACTS

Frank was 58 years old at the time of trial. After high school, Frank worked as a plumber, served in the military for a short time, then worked as a farmer until approximately 1963. From 1964 to 1972, Frank delivered beer to stores for a living. He then worked as a contractor in the building trade until 1983. From 1983 until 1990, Frank was employed doing cement work, roofing, and general carpentry. In 1990, Frank went to work for A & L, where he worked until August 8, 1995. Frank testified that when he went to work for A & L he was in good physical condition, having no problems with his wrists, elbows, or shoulders.

Frank’s work for A & L involved various tasks such as installing vinyl windows, door replacements, new doors, and kitchen cabinets; putting up drywall; sanding; painting; and breaking up concrete and stucco. A large part of Frank’s work required him to use his hands and arms, including prying out old windows, installing new windows, sanding and painting drywall, and using various tools such as hammers, pry bars, nail pullers, saws, and high-torque screw guns. Almost all of Frank’s daily work required hammering, lifting, and using a screw gun above his head and in other awkward positions. When Frank initially worked for A & L, he installed windows ranging from 20 to 25 pounds each. However, beginning in 1993 or 1994, Frank was required to install larger and heavier windows. On some of the larger windows, Frank used a screw gun to install up to 200 272-inch and 372-inch screws.

In 1993, Frank went to see Thomas Rohrick, D.C., a chiropractor, complaining of generalized pain in his shoulders. Frank was first treated by Dr. Rohrick from March 3 through 29. During this period of treatment, Frank stated that he was experiencing shoulder pain in the area where the shoulders meet the neck, later explained by Dr. Rohrick as the trapezius muscle. Given the location of the pain, Dr. Rohrick ruled out any rota-tor cuff problems or hand or wrist injuries. Instead, Dr. Rohrick [902]*902diagnosed Frank as having brachial neuritis/radiculitis dislocation (subluxation) of the cervical spine, myofibrositis and myofascitis, and rib strain/sprain.

Dr. Rohrick also treated Frank for a lower back injury he sustained while lifting a window. The injury occurred on October 7,1994, and Frank was treated by Dr. Rohrick from October 10 through December 2. Dr. Rohrick diagnosed Frank with a dislocation (subluxation) of the lumbar spine and spondylarthritis and lumbar strain/sprain.

Dr. Rohrick and Frank both testified that Frank recovered from these injuries at the conclusion of Dr. Rohrick’s treatment. The record also shows that there was no permanent impairment or disability after the March 1993 and December 1994 treatments. During both series of treatments, Frank never complained of any problems with his wrists or shoulders, which might have indicated rotator cuff tears or carpal tunnel syndrome, and Dr. Rohrick never diagnosed him with any such injuries. In fact, Dr. Rohrick testified that none of Frank’s complaints led him to test or examine Frank for rotator cuff tears or carpal tunnel syndrome.

Beginning in 1995, Frank noticed his right wrist was hurting. He initially attempted to treat himself with hotpacks, and continued working. When Frank started having problems with his right wrist, he began using his left arm to compensate for the pain in his right hand. As a result, Frank began to feel discomfort in his left hand as well. A short time later, Frank also noticed some tingling in the fingers of his right hand. The tingling would come and go, but as time went on the pain became more constant. While continuing to work, Frank also began feeling discomfort in his right shoulder and noticing symptoms of neck discomfort.

In the spring of 1995, Frank told his employer about these problems. By July, the pain was so bad that Frank decided he needed to consult a physician. On August 8, Frank consulted Diane E. Gilíes, M.D., an orthopedic surgeon. Frank complained of pain in both shoulders, his left elbow, and his right wrist. He also complained of experiencing a grinding sensation in his neck, having trouble grasping a hammer, and starting to drop things. After examining Frank, Dr. Gilíes diagnosed him [903]*903with “degenerative joint disease of the cervical spine; impingement syndrome both shoulders with possible rotator cuff tears ... nonunion right scaphoid with post-traumatic arthritis of the wrist; carpal tunnel syndrome, right wrist and mild cubital tunnel syndrome, left elbow.” Frank has not worked since August 7.

Based on Dr. Gilíes’ initial diagnosis, she ordered an MRI scan of Frank’s left shoulder and advised him to remain off work. The MRI showed a complete tear of the left rotator cuff, and, as such, Dr. Gilíes recommended Frank undergo surgery on the left shoulder. On August 30, 1995, an MRI was performed on Frank’s right shoulder, which showed a tendonopathy/partial tearing of the anterior supraspinous tendon. On August 31, Frank underwent surgery on the left rotator cuff tear and an anterior acromioplasty of the left shoulder. On November 15, Dr. Gilíes performed an anterior acromioplasty of the right shoulder and repair of the right rotator cuff.

Despite surgery, Frank continued to have problems with his left shoulder. On January 30, 1996, Dr. Gilíes ordered another MRI on the left shoulder, which revealed tendonopathy subacromial bursitis versus focal retear of the anterior supraspinous tendon. On February 23, Dr. Gilíes also ordered an MRI of the cervical spine, which indicated there might be some changes occurring in the cervical spine. In order to ensure that Frank’s shoulder pain was originating from the shoulders and not another area such as the neck, Dr. Gilíes referred Frank to Earnest W. Beehler, M.D. Dr. Beehler found no spinal abnormalities and therefore performed no further treatment.

On April 3, 1996, Dr. Gilíes discussed with Frank the possibility of arthrodesis of the right wrist (wrist fusion). Dr. Gilíes also recommended conducting EMG studies.

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Bluebook (online)
594 N.W.2d 586, 256 Neb. 898, 1999 Neb. LEXIS 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-a-l-insulation-neb-1999.