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Bolles v. Midwest Sheet Metal Co., Inc.

Court of Appeals of Nebraska

September 15, 2015

STACY M. BOLLES, PERSONAL REPRESENTATIVE OF THE ESTATE OF GREGORY L. BOLLES, DECEASED, APPELLANT,
v.
MIDWEST SHEET METAL CO., INC., APPELLEE

Page 718

Appeal from the Workers' Compensation Court: JOHN R. HOFFERT, Judge.

John C. Fowles, of Fowles Law Office, P.C., L.L.O., and John F. Vipperman, of Anderson, Vipperman & Kovanda, for appellant.

Darla S. Ideus, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

INBODY, PIRTLE, and BISHOP, Judges. INBODY, Judge, concurring.

OPINION

Page 719

[23 Neb.App. 270] Per Curiam.

Stacy M. Bolles, personal representative of the estate of Gregory L. Bolles, has appealed from the order of the Nebraska Workers' Compensation Court that sustained the motion to dismiss filed by Midwest Sheet Metal Co., Inc. (Midwest). For the reasons stated herein, we reverse, and remand for further proceedings.

BACKGROUND

Following the death of Gregory in 2011, his spouse, Stacy, filed an action in the Workers' Compensation Court in her own behalf and on behalf of other dependents pursuant to the Nebraska Workers' Compensation Act. See Neb. Rev. Stat. § 48-122 et seq. (Reissue 2010 & Cum. Supp. 2014) (pertaining to injuries resulting in death). The trial court found that Gregory's death occurred in the course and scope of his employment with Midwest, a finding affirmed by this court in Bolles v. Midwest Sheet Metal Co., 21 Neb.App. 822, 844 N.W.2d 336 (2014) ( Bolles I ). The underlying facts of this case are set out in detail in Bolles I and need not be repeated [23 Neb.App. 271] here except to the extent necessary for our analysis of the issue presented in the current appeal.

The more pertinent facts to this appeal are procedural in nature. In July 2013, while the appeal in Bolles I was pending, Stacy filed a petition in the Workers' Compensation Court in her capacity as personal representative of Gregory's estate. In the petition, Stacy acknowledged that the findings of liability and causation raised in Bolles I were binding in the instant case under the doctrine of res judicata. The sole claim raised in the present petition was the reasonableness and necessity of Gregory's medical expenses totaling $18,869.44. In response, Midwest filed a motion to stay or dismiss the matter. The matter was stayed in the trial court pending this court's decision in Bolles I.

Upon lifting the stay in May 2014, a hearing was held at which time the trial court took judicial notice of the pleadings from Bolles I and listened to arguments of

Page 720

counsel on the applicability of the doctrine of claim preclusion as to the issue of Gregory's medical expenses. Stacy contended that ยง 48-122 does not provide for payment of medical expenses to a surviving spouse or other dependents and that a separate action ...


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