Workers' Compensation: Appeal and Error.
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.
____: ___. 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 which are clearly wrong in light of the evidence.
Workers' Compensation: Proof. A claimant
is entitled to an award under the Nebraska Workers'
Compensation Act for a work-related injury disability if the
claimant shows, by a preponderance of evidence, that the
claimant sustained the injury and disability proximately
caused by an accident which arose out of and in the course of
the claimant's employment, even though a preexisting
disability or condition had combined with the present
work-related injury to produce the disability for which the
claimant seeks an award.
Workers' Compensation. To be
apportionable, an impairment must have been independently
producing some degree of disability before the accident, and
must be continuing to operate as a source of disability after
Workers' Compensation: Words and
Phrases. In terms of the test for determining when
apportionment is appropriate, the term "disability"
contemplates impairment of earning capacity, not functional
Neb.App. 647] 6. Workers'
Compensation. Absent a statute requiring
apportionment, the doctrine of apportionment is not
Workers' Compensation: Intent. The
principal purpose of the Nebraska Workers' Compensation
Act is to provide an injured worker with prompt relief from
the adverse economic effects caused by a work-related injury
or occupational disease.
Workers' Compensation: Attorney Fees: Penalties
and Forfeitures: Time. Neb. Rev. Stat. § 48-125
(Cum. Supp. 2016) authorizes a 50-percent penalty payment for
waiting time involving delinquent payment of compensation and
attorney fees, where there is no reasonable controversy
regarding an employee's claim for workers'
Workers' Compensation: Attorney Fees.
Whether a reasonable controversy exists pertinent to Neb.
Rev. Stat. § 48-125 (Cum. Supp. 2016) is a question of
Workers' Compensation: Attorney Fees: Words and
Phrases: Appeal and Error. A reasonable controversy
may exist (1) if there is a question of law previously
unanswered by the Supreme Court, which question must be
answered to determine a right or liability for disposition of
a claim under the Nebraska Workers' Compensation Act, or
(2) if the properly adduced evidence would support reasonable
but opposite conclusions by the compensation court concerning
an aspect of an employee's claim for workers'
compensation, which conclusions affect allowance or rejection
of an employee's claim, in whole or in part.
from the Workers' Compensation Court. Julie A. Martin,
Jessica R. Voelker, of Law Office of Steven G. Piland, for
Loudon and Joseph A. Huckleberry, of Law Office of Lee S.
Loudon, PC, L.L.O., for appellee.
Riedmann, Bishop, and Welch, Judges.
C Group 1, Inc., doing business as Camaco, LLC (P&C
Group), and Hartford Fire Insurance Company (Appellants) [27
Neb.App. 648] appeal from an order of the Nebraska
Workers' Compensation Court awarding Halina Picard
compensation for a 75-percent loss of earning capacity due to
a 2012 work-related accident and for a 55-percent loss of
earning capacity due to a 2015 work-related accident, with no
reduction in the second award due to apportionment from the
first award. For the reasons set forth herein, we affirm in
part, and in part reverse and vacate the award of attorney
fees, penalties, and costs.
1989, Picard has worked as a production worker for P&C
Group in a variety of positions. In April 2012, her duties
included loading and unloading parts from robotic welders and
stocking parts. On April 24, Picard felt a severe pain in
both hands causing her to drop the parts that she was
holding. She informed her supervisor and sought medical
treatment. She was referred to Dr. Jeffrey Tiedeman, who
performed surgery on her wrists in June. Dr. Tiedeman
eventually released Picard to work with permanent
September 2015, Picard was working at P&C Group in a
position that accommodated her permanent restrictions. On
September 9, Picard experienced severe back pain as she bent
over to pick up parts. She testified that she was almost
unable to walk and sought medical attention. She was referred
to Dr. Geoffrey McCullen, who eventually performed surgery on
her back. Following her surgery, Picard returned to work at
P&C Group and, up until the time of trial, had performed
the same job she performed prior to her September 2015
filed two claims against P&C Group and its insurer,
Hartford Fire Insurance Company, relating to the injuries she
received while working for P&C Group in 2012 and 2015.
These cases were consolidated by the Workers'
Compensation Court. Trial in this matter was held in December
time of trial, Picard was 62 years old. She testified that
she was born in Poland, attended "[e]ighth grade school
and five year college," and had worked selling jewelry
in [27 Neb.App. 649] Poland. In 1982, she moved to the United
States, and in 1987, she obtained a job assembling
electronics. After this job, she worked for P&C Group for
a few months before being laid off. She then found a job
labeling boxes and meat in a meatpacking plant. In 1989,
Picard was rehired by P&C Group and worked there through
the time of trial.
the April 2012 injury, Dr. Tiedeman diagnosed Picard with
bilateral carpal tunnel syndrome, and in June, he performed a
carpal tunnel release surgery on her wrists. After some
temporary restrictions, Dr. Tiedeman placed Picard on a
permanent restriction of lifting no more than 5 pounds and
recommended that she do no more than occasional work above
shoulder level. In October, Dr. Tiedeman wrote that, in his
opinion, Picard had reached maximum medical improvement and
had a 10-percent permanent partial impairment of each hand.
November 2017, a doctor performed an independent medical
evaluation of Picard's carpal tunnel condition on behalf
of P&C Group. He opined that the symptoms in Picard's
hands would not improve significantly. He agreed that Picard
should be restricted to lifting no more than 5 pounds and
recommended a restriction that Picard "avoid use of
Picard's September 2015 injury, Dr. McCullen diagnosed
her with a herniated disk and performed a micro-diskectomy
operation on her spine. Dr. McCullen assigned permanent
restrictions to Picard of no bending to the floor; only
occasional bending, squatting, or twisting; and no lifting
greater than 10 pounds. Dr. McCullen clarified that
"[t]he restrictions above are for the spine," not
the hands, and stated that Picard could continue in her
then-current position at P&C Group. Dr. McCullen opined
within a reasonable degree of medical certainty that Picard
suffered a 13-percent impairment of the whole body.
Neb.App. 650] Stipulations Prior to Trial
to trial, the parties stipulated to matters relevant to this
appeal. Regarding the 2012 accident involving Picard's
wrists, the parties stipulated that (1) Picard's average
weekly wage at the time of her injury was $694.12; (2)
P&C Group paid Picard temporary total disability benefits
for IVi weeks from June 18 through 25, 2012, and
January 7 through February 10, 2013, at the rate of $462.75
totaling $3, 503.68; (3) P&C Group paid Picard permanent
partial disability benefits totaling $18, 817.19 and is
entitled to a credit for the permanent partial disability
benefits paid; (4) if Picard's 2012 injury to her hands
is compensated as a scheduled member injury under Neb. Rev.
Stat. § 48-121(3) (Reissue 2010), a 10-percent
impairment to Picard's bilateral hands equates to 35
total weeks (175 weeks * 10 percent * 2). At the rate of
$462.75, Picard would be entitled to $16, 196.25 if the court
finds that Picard is not entitled to permanent partial
disability benefits based upon her loss of earning power. As
such, the parties stipulated that regarding Picard's 2012
injury, the genuinely controverted issues to be resolved by
the court at the time of trial relevant to this appeal were
(1) whether Picard was adequately compensated for her April
24, 2012, injuries with a scheduled member injury award, or
(2) whether Picard was entitled to additional compensation
for loss of earning power benefits as a result of suffering
more than one scheduled member injury from one accident.
parties then stipulated to the following regarding the 2015
accident involving Picard's back: (1) that Picard
suffered an accident and injury on September 9, 2015, and (2)
that P&C Group has paid 12 weeks of temporary total
disability from June 24 through September 15, 2016, at the
rate of $403.55 totaling $4, 035.50. The parties further
stipulated that regarding Picard's 2015 injury, the
genuinely controverted issues to be resolved by the court at
the time of trial and relevant to this appeal were (1)
whether Picard suffered any loss of earning power as a result
of the September 9, 2015, accident; [27 Neb.App. 651] (2)
whether Picard was entitled to apportion any loss of earning
power benefits attributable to the April 24, 2012, accident
and injury toward any benefits that may be due and owing for
loss of earning power for the September 9, 2015, accident;
and (3) whether Picard is entitled to penalties, attorney
fees, and interest for P&C Group's failure to pay any
permanent disability benefits for loss of earning power.
addition to the above-stated stipulations, the parties
stipulated to having Kim Rhen perform a loss of earning
capacity analysis in connection with Picard's 2015
injury. Based on the restrictions that Dr. McCullen assigned
for Picard's back, Rhen estimated Picard's total loss
of earning capacity from the 2015 injury to be 50 percent-or
55 percent if still employed at P&C Group. Rhen provided
two possibilities, because there was a dispute regarding
Picard's average weekly wage. Rhen was then appointed by
the court to perform a vocational evaluation for Picard's
2012 injury. Based on the restrictions that Dr. Tiedeman
assigned for Picard's carpal tunnel syndrome, Rhen
estimated Picard's total loss of earning capacity from
the 2012 injury at 60 percent if still employed at P&C
Group. Rhen found that the restrictions from either of
Picard's two injuries were independently sufficient to
make Picard unemployable outside of P&C Group, but she
believed that Picard was competitively employed at P&C
Group. Rhen also noted that the higher earning capacity loss
for the 2012 injury was because Picard had a higher average
weekly wage before the 2012 injury.
Picard's first injury, she was no longer eligible for
overtime. After each injury, she continued to receive yearly
raises to her hourly pay similar to uninjured employees and
has not had her hourly pay reduced. Upon Picard's
completion of her shift at work, someone on the next shift
performs the same job functions she performs. There are eight
other jobs at P&C Group that Picard could transfer to and
perform with [27 Neb.App. 652] no accommodations or
assistance, as well as other jobs for which P&C Group
could accommodate her. Picard testified that she had worked
in her current position for over 3 years and had not ...