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Weyerman v. Freeman Expositions, Inc.

Court of Appeals of Nebraska

December 18, 2018

Randy Weyerman, appellee,
Freeman Expositions, Inc., employer, and old republic insurance company, insurance carrier, appellants.

         1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify, reverse, or set aside a 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.

         2. __:__. Findings of fact made by the compensation court have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous.

         3. Workers' Compensation: Evidence: Appeal and Error. When testing the sufficiency of the evidence to support findings of fact made by the compensation court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence.

         4. Employer and Employee: Independent Contractor. There is no single test for determining whether one performs services for another as an employee or as an independent contractor.

         5. __:__. Ordinarily, when a court is presented with a dispute regarding a party's status as an employee or an independent contractor, the party's status is a question of fact which must be determined after consideration of all the evidence in the case.

         6. Workers' Compensation. As the trier of fact, the compensation court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

         [26 Neb.App. 693] 7. Workers' Compensation: Insurance: Liability: Time. When a subsequent injury aggravates a prior injury, the insurer at risk at the time of the subsequent injury is liable. But, if the subsequent injury is a recurrence of the prior injury, the insurer at risk at the time of the prior injury is liable.

         8. Workers' Compensation: Appeal and Error. A finding in regard to causation of an injury is one for determination by the compensation court as the finder of fact.

         9. Workers' Compensation: Expert Witnesses: Physicians and Surgeons. Resolving conflicts within a health care provider's opinion rests with the compensation court, as the trier of fact.

         10. Workers' Compensation: Words and Phrases. Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a workers' compensation claimant may receive permanent or temporary workers' compensation benefits for either partial or total disability. Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit.

         11. Workers' Compensation. Once a worker has reached maximum medical improvement from a disabling injury and the worker's permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

         12. __. Generally, whether a workers' compensation claimant has reached maximum medical improvement is a question of fact.

         13. Workers' Compensation: Appeal and Error. When the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court.

          Appeal from the Workers' Compensation Court: James R. Coe, Judge. Affirmed.

          Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson. Kuper & Wenninghoff, P.C., L.L.O., for appellants.

          Jacob M. Steinkemper, of Steinkemper Law, PC, L.L.O., for appellee.

          Riedmann, Bishop, and Arterburn, Judges.

          Arterburn, Judge.


         Freeman Expositions, Inc., and its insurance carrier, Old Republic Insurance Company (referred to herein individually [26 Neb.App. 694] and collectively as "Freeman Expositions"), appeal from the Nebraska Workers' Compensation Court's award of benefits to Randy Weyerman. In the award, the compensation court ordered Freeman Expositions to pay to Weyerman temporary total disability payments. In addition, the court ordered Freeman Expositions to "continue to provide and pay for such future medical and hospital services and treatment as may be reasonably necessary as a result of [Weyerman's] accident and injury." On appeal, Freeman Expositions assigns numerous errors, including that the compensation court erred in finding that it was Weyerman's employer on the day of his accident; that Weyerman's injury occurred on September 17, 2015, rather than on October 9; that Weyerman had not yet reached maximum medical improvement (MMI); and that Weyerman is entitled to future medical care. For the reasons set forth herein, we affirm the compensation court's award of benefits to Weyerman.


         Weyerman's Work as Stagehand

         Since 1994, Weyerman has worked as a stagehand. He described his job as "mostly set[ting] up . . . concerts, operas, plays, unload[ing] trucks, set[ting] up the gear. We do the lighting, the sound. We do all the categories. We also do carpentry and we run spotlights for the shows and we also work as a deckhand moving band gear." In order to facilitate job opportunities, Weyerman is a member of the "International Alliance of Theatrical, Stage, and Moving Pictures." This group is also referred to in our record as the "Local 42" or the "union." Local 42 acts as a "referral hall," obtaining and assigning jobs to its members.

         In 2015, Local 42 had a collective bargaining agreement with Complete Payroll Services, Inc. (Complete Payroll). Pursuant to that agreement, Complete Payroll was considered the employer of members of Local 42 when the members [26 Neb.App. 695] worked on Complete Payroll jobs. The president of Complete Payroll confirmed that in 2015, the company was the employer of union members when they worked on Complete Payroll jobs. He explained that Complete Payroll had contracts with various vendors who needed stagehands. Complete Payroll would provide union members to the vendors. In return, the vendors would pay Complete Payroll for the work completed by union members. Complete Payroll would then disburse paychecks directly to union members. In addition, Complete Payroll provided union members with certain employment benefits. The collective bargaining agreement between Local 42 and Complete Payroll provided that Complete Payroll possessed "Management Rights" regarding its workforce:

Subject to the provisions of this Agreement and applicable state and federal law, the Employer retains the sole right to manage its business and direct the work force including, but without being limited to, the right to establish new tasks, abolish or change existing tasks, increase or decrease the number of tasks, change materials, processes, products, equipment and operations. The Employer shall have the right to schedule and assign work to be performed, establish, maintain and enforce reasonable plant rules and regulations, establish attendance policies and have the right to hire or rehire employees, promote employees, to demote or suspend, discipline or discharge for just cause, and to transfer or layoff employees because of lack of work.

         The agreement also delineated a list of "work rules" for union members. These rules addressed such things as the length of the workday and the workweek, overtime and "premium" pay, and expectations during performances or rehearsals.

         Members of Local 42 could also obtain work separate and apart from Complete Payroll. In 2015, Local 42 also had a collective bargaining agreement with Freeman Expositions. That agreement referred to Freeman Expositions as the "employer" when union members were working on Freeman Expositions' [26 Neb.App. 696] jobs. In fact, the first time a union member would work for Freeman Expositions, the member had to fill out "new hire paperwork." Freeman Expositions would assign each union member an employee number and keep a record of each union member who had done work for the company. Freeman Expositions paid union members directly for their work on Freeman Expositions' jobs. In addition, the agreement between Local 42 and Freeman Expositions included a description of the management rights possessed by Freeman Expositions. This description is nearly identical to the description of management rights retained ...

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