John J. Bower, appellant and cross-appellee.
Eaton Corporation and Old Republic Insurance Company, appellees and cross-appellants.
Workers' Compensation: Appeal and Error.
An appellate court is obligated in workers' compensation
cases to make its own determinations as to questions of law.
___. Determinations by a trial judge of the Workers'
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact that
are clearly wrong in light of the evidence.
Workers' Compensation. Whether an
injured worker is entitled to vocational rehabilitation is
ordinarily a question of fact to be determined by the
Workers' Compensation Court.
Workers' Compensation: Appeal and Error.
The percentage of permanent partial loss of use for an
injured member is a question of fact that an appellate court
reviews for clear error.
Workers' Compensation: Expert
Witnesses. As the trier of fact, the
Workers' Compensation Court is the sole judge of the
credibility of the witnesses and the weight to be given their
Workers' Compensation: Rules of Evidence: Due
Process. The Workers' Compensation Court is
empowered to admit evidence not normally admissible under the
rules of evidence applicable in the trial courts of this
state, subject to the limits of constitutional due process.
Workers' Compensation: Evidence. Given
the beneficent purposes of workers' compensation law, the
Workers' Compensation Court can admit evidence not
normally admissible in order to investigate cases in the
manner it judges is best calculated to ascertain the
substantial rights of the parties and to carry out justly the
spirit of the Nebraska Workers' Compensation Act.
Neb. 312] 8. Workers'
Compensation: Physicians and Surgeons: Words and
Phrases. Only the supervising physician in a
physician-physician assistant relationship falls under the
definition of physician as stated in Workers' Comp. Ct.
R. of Proc. 49(0) (2018).
Workers' Compensation: Appeal and Error.
Whether an employee's compensable scheduled member injury
has resulted in a whole body impairment and loss of earning
power is a question of fact, which an appellate court reviews
for clear error.
Workers' Compensation. Employees are not
limited to benefits for a scheduled member injury when the
effects of that injury have extended to other parts of the
employee's body in a manner that impairs the
employee's ability to work.
. The test for determining whether a disability is to a
scheduled member or to the body as a whole is the location of
the residual impairment, not the situs of the injury.
Workers' Compensation: Proof. An
employee has the burden to prove by a preponderance of the
evidence compensability of a claim against an employer under
the Nebraska Workers' Compensation Act.
Workers' Compensation. A workers'
compensation award cannot be based on mere possibility or
Workers' Compensation: Evidence. An
award of future medical expenses requires explicit evidence
that future medical treatment is reasonably necessary to
relieve the injured worker from the effects of the
Appeal and Error. An appellate court will
not consider an issue on appeal that was not presented to or
passed upon by the trial court.
Workers' Compensation. The Nebraska
Workers' Compensation Act is construed liberally to carry
out its spirit and beneficent purposes.
Workers' Compensation: Jurisdiction:
Statutes. As a statutorily created court, the
Workers' Compensation Court is a tribunal of limited and
special jurisdiction and has only such authority as has been
conferred on it by statute.
Workers' Compensation: Jurisdiction: Contracts:
Parties: Insurance. The Nebraska Workers'
Compensation Act does not afford the compensation court
jurisdiction to resolve contractual disputes between
employees and third-party insurers.
Workers' Compensation: Jurisdiction: Contracts:
Insurance. A contractual dispute over private
agreements for disability coverage that is not workers'
compensation coverage is not ancillary to the compensation
court's primary jurisdiction.
Workers' Compensation: Jurisdiction: Termination
of Employment. Wrongful discharge in relation to
filing a workers' compensation claim [301 Neb. 313] does
not fall under the compensation court's exclusive
jurisdiction over accidents arising out of and in the course
Workers' Compensation: Termination of Employment:
Torts. Wrongful discharge is not one of the tort
actions for which employers receive relief in exchange for
liability under the Nebraska Workers' Compensation Act.
Workers' Compensation: Penalties and
Forfeitures. To avoid the penalty provided for in
Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016), an employer
need not prevail in the employee's claim, but must have
an actual basis in law or fact for disputing the claim and
Workers' Compensation: Penalties and Forfeitures:
Time: Appeal and Error. An appellate court reviews
for clear error the compensation court's findings
concerning reasonable controversy underlying its
determination of waiting-time penalties.
Workers' Compensation: Proof. Depending
on the circumstances, a reasonable controversy may exist
regarding the employer's liability until an employee
presents the employer with competent medical evidence that he
or she is entitled to workers' compensation benefits.
Attorney Fees. The determination of the
amount of attorney fees is necessarily a question of fact
that requires a factual determination on several factors,
including the value of legal services rendered by an attorney
by considering the amount involved, the nature of the
litigation, the time and labor required, the novelty and
difficulty of the questions raised, the skill required to
properly conduct the case, the responsibility assumed, the
care and diligence exhibited, the result of the suit, the
character and standing of the attorney, and the customary
charges of the bar for similar services.
from the Workers' Compensation Court: Thomas E. Stine,
S. Stamm and Jerad A. Murphy, of Stamm, Romero &
Associates, PC, L.L.O., for appellant.
M. Smith and Michael J. Lunn, of Scheldrup, Blades, Schrock
& Smith, PC, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 314] Freudenberg, J.
employee appeals from an award of the Nebraska Workers'
Compensation Court. The issues presented concern the
employee's member impairment rating, whether an injured
extremity caused a whole body impairment, the sufficiency of
the evidence to prove out-of-pocket medical expenses and
future medical expenses, whether a physician assistant is a
"physician" for the purpose of admitting signed
written reports in lieu of testimony, whether there was no
reasonable controversy as to the compensability of the injury
such that greater waiting-time penalties should have been
imposed, the compensation court's jurisdiction to decide
retaliatory discharge or a private disability insurer's
right to reimbursement, the necessity of vocational
rehabilitation, and the amount of attorney fees. We affirm.
Bower worked for Eaton Corporation (Eaton) as a relief
operator. Bower earned approximately $19 per hour and worked
approximately 56 hours per week. On September 30, 2013, Bower
injured his right shoulder in an accident arising out of and
in the course of his employment.
reported the incident to his supervisor that same day, but
continued working until the end of his shift. Bower woke up
the following morning with "the sharpest pain I've
ever . . . felt before." He saw his general physician,
Dr. Chadd Murray. An x ray did not reveal an injury.
nonsurgical treatments did not alleviate continuing symptoms,
Bower was referred to Dr. Heber Crockett, an orthopedic
surgeon, for treatment of his injury. Magnetic resonance
imaging on November 25, 2013, revealed a moderate partial
rotator cuff tear.
the course of the next 3 years, the injury was treated with
medication, steroid injections, physical therapy, and four
surgical procedures. The surgical procedures were performed
[301 Neb. 315] on February 4 and May 20, 2014, and March 17
and December 22, 2015. During this time, Eaton did not
acknowledge that the injury was work related and did not pay
workers' compensation benefits.
filed a workers' compensation claim on February 24, 2015.
Bower reached maximum medical improvement on June 6, 2016,
during the pendency of the workers' compensation
proceedings. He submitted to an independent medical
examination on July 7, conducted by Dr. Michael Morrison, an
opined that Bower suffered from a permanent 12-percent
impairment of his right upper extremity as a result of the
September 2013 injury. After receiving Morrison's report,
Eaton determined that Bower had incurred a work-related
injury on September 30, 2013. Eaton determined that the
February and May 2014 and March 2015 surgical procedures were
compensable. But Eaton determined that the December 2015
surgery was not compensable.
August 12, 2016, Eaton paid Bower temporary total disability
benefits representing the periods from February 4 until July
17, 2014, and March 17 until August 16, 2015, in a total
amount of $33, 073.72. Eaton also paid on August 12, 2016,
$19, 718.91 in permanent partial disability benefits based on
Morrison's assessment of a 12-percent permanent
impairment of Bower's right upper extremity.
September 1, 2016, Eaton discharged Bower from his
employment, explaining to Bower that Eaton could not
accommodate the work restrictions for his injury. Bower had
been performing his regular duties without any
accommodations, believing that he was adequately compensating
with his left arm in order to avoid lifting too much weight
with his right. Moreover, Bower believed he was qualified to
continue working at Eaton in different positions as the
"lead" or supervisor of the line. Nevertheless,
representatives of Eaton told him that he was not working
within his restrictions and that he [301 Neb. 316] would be
discharged unless he could convince a physician to reduce
petition, Bower had sought temporary total disability
benefits, vocational rehabilitation, and payment of medical
bills incurred and to be incurred in the future, as well as
waiting-time penalties and attorney fees. In a joint pretrial
memorandum, the parties presented several issues for
determination, including reimbursement for out-of-pocket
medical expenses and entitlement to future medical expenses,
entitlement to return to work at Eaton or vocational
rehabilitation services, the amount of Bower's permanency
rating to his right upper extremity and whether he suffered a
whole body impairment, Eaton's insurer's entitlement
to repayment for short-term disability payments made to Bower
in relation to his injury, Bower's entitlement to
attorney fees and a waiting-time penalty, and whether Bower
was entitled to compensation for allegedly being discharged
in retaliation for Eaton's payment of workers'
statement of issues for determination in the joint pretrial
memorandum did not include reimbursement for vacation time
used during treatment of the September 2013 injury. In the
court's notice of trial and pretrial order, it had
advised the parties that any issue not set forth in the joint
pretrial memorandum would be deemed waived.
court issued its award on October 16, 2017, following a
Total Disability Awarded
court's award, it found that all the surgeries were
compensable. Thus, in addition to the amount paid voluntarily
by Eaton during the pendency of the proceedings, the court
awarded temporary total disability benefits pertaining to the
December 2015 surgery. This amounted to a total of $1,
877.99, which neither party disputes on appeal.
Neb. 317] Permanent Disability Based on Member Impairment
Rating of 12 Percent
court awarded permanent disability benefits based on a
12-percent impairment to Bower's right upper extremity.
This member impairment rating was derived from Morrison's
had submitted a report by Crockett's physician assistant,
Yuji Kitabatake. Kitabatake opined in the report that Bower
suffered a 15-percent permanent impairment to his right upper
extremity. The report was signed "Yuji Kitabatake. PA-C
for Heber C. Crockett, M.D." Crockett did not sign the
document. Eaton objected to the report as hearsay and outside
the scope of Workers' Comp. Ct. R. of Proc. 10 (2018).
The court received the report into evidence, but stated it
would give the report whatever weight it found was due after
award, the court concluded that the report was not due any
weight. Citing to Neb. Rev. Stat. § 48-151(1) (Reissue
2010) and Workers' Compensation Court rule 10, the court
found that the report failed to qualify as an expert medical
opinion upon which it could rely for a determination of
workers' compensation benefits.
Whole Body Impairment
court declined Bower's suggestion that his permanent
disability benefits should be calculated based upon a loss of
earning capacity under an impairment to the body as a whole.
The only evidence of an impairment to the body as a whole was
Kitabatake's report which stated, "Conversion from
upper extremity to whole person is from 15% to 9% of whole
person . . . ." Kitabatake did not otherwise describe
how the shoulder injury caused a whole body impairment.
refusing to calculate the permanent partial disability award
based on impairment to the body as a whole, the court
reasoned that the medical evidence showed Bower's
residual [301 Neb. 318] limitation and impairment were to his
right upper extremity, and the court was "not persuaded
that [Bower's] impairment to his right upper extremity
has in some manner manifested itself as a . . . whole [body]
Waiting-Time Penalty Awarded
court awarded Bower a waiting-time penalty pursuant to Neb.
Rev. Stat. § 48-125(3) (Cum. Supp. 2016), but only in
relation to Eaton's failure to timely pay workers'
compensation benefits for the December 2015 surgery and
corresponding recovery period. The waiting-time penalty for
such benefits was $939. The court found that there was no
longer a reasonable controversy as to the compensability of
Bower's injury and the resulting medical care, including
the December 2015 surgery and recovery period, as of the date
of Eaton's receipt of Morrison's report.
court declined to award additional waiting-time penalties in
relation to the remaining benefits that were paid by Eaton
voluntarily on August 12, 2016, because it concluded that a
reasonable controversy existed as to the compensability of
Bower's injury until Eaton received Morrison's
report. The court explained that the reasonable controversy
stemmed from Murray's original progress note. The note
described that Bower was seen on October 1, 2013, complaining
of shoulder pain. And, in the "History of Present
Illness" section, under the title, "Recent
Interventions," Murry wrote, "He has no injury to
his shoulder just woke up with the pain."
agent of Eaton advised Bower that Murray had failed to
indicate the injury was work related, Murray revised the
progress note. The revision was apparently faxed to Eaton on
November 22, 2013. It added that Bower "had injured his
shoulder at work when he was lifting a heavy item, he has had
pain but it became much worse this morning." However,
the amended note continued to include the contradictory
language from the original progress note.
Neb. 319] Exhibit 48 reflects that Eaton's workers'
compensation insurer sent a letter to Murray on December 10,
2013, requesting that Murray explain the discrepancies
between the initial report and the revised report and why it
was changed. The letter stated that Eaton's workers'
compensation insurer had attempted to speak with Murray on
several occasions to discuss the discrepancy. There was no
evidence that Murray responded to Eaton's inquiries.
Out-of-Pocket Medical Expenses Awarded
court denied Bower's claim for unpaid out-of-pocket
medical expenses. In its pretrial order, the court had
ordered the parties to file a joint pretrial memorandum,
including, among other things, a "medical expense cover
sheet setting forth an itemization of each medical expense
incurred and unpaid, or for which reimbursement is claimed,
by provider, date, and amount."
parties jointly submitted a medical expense cover sheet that
specified providers and amounts, but not dates. It showed a
total paid by Bower in the amount of $3, 975.41 and a total
paid by Bower's insurer in the amount of $38, 735.88. The
cover sheet showed a total amount of medical expenses, by
provider, of $104, 356.87.
trial, Bower entered into evidence voluminous medical billing
statements and records. The medical billing statements are
contained in exhibits 23 through 32, and the medical records
are found in exhibits 16 through 20. The billing statements
show numerous payments made by health care insurance and by
patient, but several statements contain overlapping dates,
and thus duplicative payment receipts.
court additionally accepted into evidence exhibits 14 and 15,
which contain Bower's summarization of his out-of-pocket
expenses. Most, but not all, of the items summarized are
detailed by date and provider. Exhibits 14 and 15 claimed a
total of $12, 315.94 in out-of-pocket expenses. Bower
testified [301 Neb. 320] that he was never reimbursed for any
out-of-pocket expenses he paid during the treatment of his
trial, the court contacted counsel and requested additional
information to clarify the medical expenses. Counsel were to
submit the information by stipulation on October 6, 2017.
Counsel did not provide the information as requested.
Approximately 2 weeks later, the court again contacted
counsel on October 10, requesting additional information.
Counsel indicated they would have the information to the
court by October 12; but counsel did not provide any
denying compensation for any out-of-pocket medical expenses,
the court explained, "The medical expense information
provided by the parties falls woefully short of what was
ordered to be provided by the Pretrial Order, and the Court
is unable to meaningfully analyze the information."
Specifically, the court noted that the cover sheet reflected
medical expenses still owed in an amount of $61, 645.58,
which amount the court observed was not reflected in the
exhibits entered into evidence. Furthermore, the court noted
the discrepancy between the claimed amount of out-of-pocket
medical expenses in exhibits 14 and 15 of $12, 315.94 and the
amount of $3, 975.41 stated as being paid by Bower in the
medical expenses cover sheet of the joint pretrial
court concluded that Bower had "failed to satisfy his
burden to prove that the medical expenses submitted in
Exhibits 14, 15, and 23 through 32, are fair, reasonable, and
related to the work injury." With this reasoning, the
court awarded Bower no out-of-pocket medical expenses.
the court had determined that Eaton failed to timely pay
benefits relating to the December 2015 surgery, the court
awarded attorney fees under § 48-125(2)(a), in the
amount of $7, 500. The court explained that it had reached
the amount of attorney fees to be awarded based upon the
general nature of the case, the time spent in preparing and
trying the case, the [301 Neb. 321] novelty and difficulty of
the questions raised, the skill required to properly conduct
the case, the responsibility assumed, the care and ...