In Bolita v. West Omaha Winsupply Company, No. A-17-636, (Neb. Ct. App. March 20, 2018), the Nebraska Court of Appeals examined the employer’s appeal to a workman’s compensation award of total disability benefits.
Jeffrey Bolita (“Bolita”) filed a petition on December 22, 2016, alleging he sustained injuries to his bilateral Achilles tendons arising out of his employment with West Omaha Winsupply Company. (“Winsupply”). Bolita alleged that these injuries required him to stop working and seek medical care. The worker’s compensation court held trial on May 4, 2017. Bolita testified and offered medical records and notes from various treatment centers, a letter from his physician, and a summary of his medical expenses.
Bolita began working for Winsupply in September of 2015 as a delivery driver. He loaded trucks with plumbing supplies, drove to delivery sites, and unloaded the trucks. The materials he delivered included cast iron pipe, copper pipe, galvanized pipe, water heaters, water coolers, and any other plumbing supply item. If the item was too heavy to carry, the delivery drivers used a two-wheel dolly to move it. He frequently worked overtime and testified that he averaged between 20 and 25 deliveries each day. Bolita began experiencing pain in his feet or Achilles tendons in the summer of 2016. He visited his general practitioner and was referred to a specialist, who attempted all non-surgical options to help Bolita find relief.
In a letter to Bolita’s attorney, a specialist stated that, based on a reasonable degree of medical certainty, he felt the most likely cause of Bolita’s Achilles tendon issues was his employment, which required him to climb, walk, and stand.
Winsupply’s independent medical examiner, Dr. Michael J. Morrison, examined Bolita. Morrison’s “impression” was that bilateral heel cord tendinitis with secondary thickening caused Bolita’s pain. Morrison found his employment with Winsupply could have contributed to repetitive activity to the right ankle and to his heel cord tendinitis. Morrison noted that from the worksheet, he was unable to make specific findings that explain repetitive activity to Bolita’s left ankle or why he developed bilateral heel cord tendinitis.
Following the trial, the compensation court entered an award of benefits to Bolita on May 24, 2017. In its award, the court found that Bolita suffered an accident and resulting injury to his bilateral Achilles tendons arising out of and in the course of his employment with Winsupply. The court determined that he is entitled to temporary total disability from September 16, 2016, through and including April 19, 2017, at a rate of $431.33 per week. The court also found Winsupply liable for the medical bills and mileage reimbursement that Bolita provided to the court. Further, the court found Winsupply liable for the expenses associated with Bolita’s future medical care for his bilateral Achilles tendon injuries. Winsupply appeals.
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.
Winsupply claims the court erred in determining that Bolita’s injury was an “accident” arising out of his employment with Winsupply. Winsupply argues Bolita’s injury was not “unexpected or unforeseen” because he sustained a previous injury to his ankle. But Winsupply did not offer any evidence to relate Bolita’s 1995 ankle injury to the issues for which he now seeks compensation. There was clearly sufficient evidence to show that Bolita’s injuries produced objective symptoms. Further, the specialist’s testimony showed the causal connection between the injury and the claimed disability. The doctor specifically stated, within a reasonable degree of medical certainty, that Bolita’s work activity was the most likely cause of his Achilles tendon issues. Viewing the evidence in a light most favorable to Bolita, this Court cannot conclude that the compensation court was clearly erroneous in finding Fitzgibbons’ evaluation was sufficient evidence to establish Bolita’s employment caused his injuries. Judgment affirmed.
Nationally recognized litigation attorney Thomas Metier practice areas include traumatic brain injuries, spinal cord injuries, trucking accidents and motor vehicle accidents. He is licensed to practice in Colorado, Wyoming, the U.S. District Court–District of Colorado, and the U.S. District Court–District of Wyoming, the 10th Circuit Court of Appeals and the U.S. Supreme Court.
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