Ajetiv.Madonna Rehab. Hosp. Inc.

NEBRASKA COURT OF APPEALSFeb 7, 2012
No. A-11-140 (Neb. Ct. App. Feb. 7, 2012)

No. A-11-140.

02-07-2012

SHKURTE AJETI, APPELLANT, v. MADONNA REHABILITATION HOSPITAL, INC., APPELLEE.

Gregory R. Coffey, of Friedman Law Offices, for appellant. Bryan S. Hatch and Kristi J. Boswell, of Stinson, Morrison & Hecker, L.L.P., for appellee.


MEMORANDUM OPINION AND JUDGMENT ON APPEAL


AJETI V. MADONNA REHAB. HOSP.


NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the Workers' Compensation Court. Affirmed. Gregory R. Coffey, of Friedman Law Offices, for appellant.

Bryan S. Hatch and Kristi J. Boswell, of Stinson, Morrison & Hecker, L.L.P., for appellee.

IRWIN, SIEVERS, and MOORE, Judges.

IRWIN, Judge.

I. INTRODUCTION

Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Shkurte Ajeti appeals from a Nebraska Workers' Compensation Court review panel order affirming the trial judge's order finding Ajeti was not permanently totally disabled and finding that Ajeti had reached maximum medical improvement. On appeal, Ajeti's assignments of error challenge the trial judge's factual conclusion concerning her level of disability and the judge's factual conclusion concerning maximum medical improvement. There was conflicting evidence presented to the trial judge, and we do not find the judge's factual conclusion to be clearly erroneous. We affirm.

II. BACKGROUND

This case arises out of an injury suffered by Ajeti while in the employ of Madonna Rehabilitation Hospital, Inc. (Madonna). At trial, Ajeti testified concerning the accident. She testified that she was working as a certified nursing assistant at Madonna on March 29, 2006. She testified that she lifted a patient from a wheelchair to a bed and that afterward, she felt a sharp pain in her back. Ajeti ultimately underwent a fusion surgery, but continued to complain of back pain and limitations. Ajeti underwent multiple functional capacity evaluations, and the parties agreed to have Amy Kremer, a certified Nebraska Workers' Compensation Court vocational rehabilitation counselor, perform a loss of earning capacity evaluation.

In October 2008, Madonna filed a petition asking the compensation court to determine Ajeti's level of disability. At trial, the parties stipulated that on March 29, 2006, Ajeti was employed by Madonna, that she sustained an injury to her lower back arising out of and in the course and scope of her employment, and that the injury resulted in at least a 30-percent loss of earning capacity. The parties also stipulated concerning Ajeti's average weekly wage on the date of the accident and that all medical bills incurred by Ajeti had been paid by Madonna.

As a result of the stipulations, at trial before the compensation court, "[t]he principle area of dispute center[ed] around the nature and extent of [Ajeti's] loss of earning power from the accident and low back injury." Relatedly, the issue of whether and when Ajeti had reached maximum medical improvement was also to be resolved by the compensation court.

In July 2010, the compensation court issued a nine-page award. In that award, the compensation court specifically recognized that the medical records presented to Kremer and the evidence presented to the court included conflicts and differing opinions concerning the nature and extent of Ajeti's limitations and employment restrictions. Two of Ajeti's physicians adopted different permanent work restrictions. As a result, in her loss of earning capacity evaluation report, Kremer had actually presented two opinions concerning Ajeti's loss of earning capacity, depending on which set of medical limitations and restrictions was accepted by the court.

The court specifically recognized the conflicts in the evidence and went to great lengths to explain why it chose to give credence to particular medical opinions over others and how it chose which of Kremer's loss of earning capacity opinions to accept. In addition to carefully evaluating the various medical opinions of all of Ajeti's physicians, the court also recognized multiple references in the medical records to inconsistent effort and positive Waddell's signs (a test to determine whether symptom magnification is present). The court also examined surveillance footage of Ajeti, which showed her engaging in everyday activities without noticeable signs of the symptoms she had reported and complained of to medical professionals. The compensation court ultimately gave credence to medical opinions suggesting that Ajeti could work for a standard 8-hour workday with limitations and concluded that Ajeti had suffered a 30-percent loss of earning capacity.

With respect to maximum medical improvement, there was again conflicting evidence presented to the compensation court. The compensation court again specifically recognized the varying opinions and again explained why it chose to accept one opinion over another. The compensation court concluded that Ajeti reached maximum medical improvement on February 27, 2008.

Ajeti sought review of the compensation court's award by the Nebraska Workers' Compensation Court review panel. The review panel issued an order of affirmance. In affirming the compensation court's order, the review panel concluded Ajeti's assignments of error alleged that the compensation court erred in accepting one medical opinion over another and that the court erred in accepting one opinion concerning maximum medical improvement over another. The review panel recognized that when there is conflicting medical testimony presented to the compensation court, the review panel on appeal is not to substitute its judgment for that of the compensation court. The review panel found that the compensation court was not clearly wrong and affirmed. This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Ajeti has assigned five errors, which we consolidate for discussion to two. First, Ajeti asserts that the compensation court erred in its determination of which medical opinions to accept and her level of disability and that the review panel erred in affirming the compensation court's order. Second, Ajeti asserts that the compensation court erred in its determination of which opinion concerning maximum medical improvement to accept and that the review panel erred in affirming the compensation court's order.

IV. ANALYSIS

Ajeti assigns as error that the compensation court erred in accepting particular expert opinions over others and that the review panel erred in affirming the compensation court's order. Ajeti argues the compensation court should have found that she satisfied her burden of proof and that she adduced sufficient evidence to demonstrate permanent total disability or that she had not reached maximum medical improvement in February 2008. We find no merit to these assertions.

Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2010), 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 compensation court do not support the order or award. Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 803 N.W.2d 489 (2011); Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing. Id. On appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Lowe v. Drivers Mgmt., Inc., supra. See Pearson v. Archer-Daniels-Midland Milling Co., supra.

In testing the sufficiency of the evidence to support the findings of fact made by the Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence. Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010). See, also, Zitterkopf v. Aulick Indus., 16 Neb. App. 829, 753 N.W.2d 370 (2008). When the record in a workers' compensation case presents conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court. Lowe v. Drivers Mgmt., Inc., supra. The trial judge is entitled to accept the opinion of one expert over another. Id.

Ajeti attempts to present the issues in this appeal as assertions that the trial court erred in failing to find that she carried her burden of proof to demonstrate the extent of her disability. She argues that she presented sufficient evidence to support her assertion that she was permanently totally disabled or properly classified under the odd-lot doctrine, or that she had not reached maximum medical improvement in February 2008. What she has not done, however, is demonstrate why the compensation court was clearly wrong in accepting medical evidence and opinions that she had suffered only a 30-percent loss of earning capacity, was employable with appropriate restrictions, and had reached maximum medical improvement.

As the review panel recognized, Ajeti's assertions on appeal all amount to challenges to the compensation court's factual conclusions and the court's decision to accept the opinion of one expert over another when presented with conflicting evidence. The compensation court engaged in a thoughtful and well-reasoned analysis of the conflicting evidence and ultimately found one expert's opinions about Ajeti's limitations and restrictions to be more credible than another. After reviewing the evidence presented to the compensation court, we conclude that the court was not clearly wrong in its conclusions about Ajeti's loss of earning capacity or maximum medical improvement. We affirm.

AFFIRMED.