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Lenz v. Cent. Parking Sys. of Nebraska, Inc.

Supreme Court of Nebraska

June 27, 2014

GARY M. LENZ, APPELLEE,
v.
CENTRAL PARKING SYSTEM OF NEBRASKA, INC., AND NEW HAMPSHIRE INSURANCE COMPANY, APPELLANTS

Appeal from the Workers' Compensation Court: THOMAS E. STINE, Judge.

AFFIRMED.

Tiernan T. Siems and Karen M. Keeler, of Erickson & Sederstrom, P.C., for appellants.

Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 624

[288 Neb. 454] Wright, J.

NATURE OF CASE

Gary M. Lenz was injured in an accident arising out of and in the course of his employment as an outdoor parking lot attendant. More than 2 years after the last voluntary payment of benefits by Central Parking System of Nebraska, Inc., and New Hampshire Insurance Company (collectively Central) but within 2 years of the partial amputation of the fifth metatarsal in Lenz' right foot, he sought additional benefits for his workrelated injury. The question presented is whether the partial

Page 625

amputation was a material change in condition and substantial increase in disability that would permit Lenz to seek benefits more than 2 years after Central's last voluntary payment. We affirm the judgment of the Workers' Compensation Court that awarded benefits.

SCOPE OF REVIEW

Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own decisions. Deleon v. Reinke Mfg. Co., 287 Neb. 419, 843 N.W.2d 601 (2014). Statutory interpretation presents a question of law. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013). The interpretation and meaning of a prior opinion present a question of law. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011). " Determining when the statute of limitations starts under [Neb. Rev. Stat.] § 48-137 [(Reissue 2010)] presents a question of law." Obermiller v. Peak Interest, 277 Neb. 656, 658, 764 N.W.2d 410, 412 (2009).

A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds [288 Neb. 455] that (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. Neb. Rev. Stat. § 48-185 (Cum. Supp. 2012). See, also, Hynes v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013).

FACTS

On December 20, 2008, Lenz developed frostbite on his right foot while performing his duties as an outdoor parking lot attendant. It was not disputed that the accident and resulting injury arose out of and in the course of Lenz' employment with Central. The parties agreed that Lenz was earning an average weekly wage of $194.25 for purposes of temporary disability benefits and $310 for purposes of permanent disability benefits.

Until mid-2009, Central voluntarily paid for the medical treatment of Lenz' frostbite injury, including two surgeries. Central paid temporary total disability benefits of $86.33 from December 21, 2008, through June 21, 2009, for a total of $2,256.91. The record does not indicate that the parties entered into a written agreement regarding Lenz' compensation.

In April 2009, Lenz moved to Colorado, where he continued treatment for the frostbite injury. He submitted his medical bills to a Colorado indigent care program and not to Central's workers' compensation insurance carrier.

Lenz returned to Nebraska in February 2012. Because the ulcers caused by the frostbite injury had not healed, he continued to receive medical treatment. In September, he was hospitalized for an infection in the ulcers. The infection spread to the fifth metatarsal in Lenz' right foot, and ...


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