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Picard v. P & C Group 1, Inc.

Court of Appeals of Nebraska

October 1, 2019

Halina Picard, appellee,
v.
P & C Group 1, Inc., DOING BUSINESS AS CaMACO, LLC, AND Hartford Fire Insurance Company, appellants.

         1. 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.

         2. ____: ___. 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.

         3. 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.

         4. 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 the accident.

         5. 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 disability.

         [27 Neb.App. 647] 6. Workers' Compensation. Absent a statute requiring apportionment, the doctrine of apportionment is not applicable.

         7. 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.

         8. 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' compensation.

         9. Workers' Compensation: Attorney Fees. Whether a reasonable controversy exists pertinent to Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) is a question of fact.

         10. 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.

          Appeal from the Workers' Compensation Court. Julie A. Martin, Judge.

          Jessica R. Voelker, of Law Office of Steven G. Piland, for appellants.

          Lee S. Loudon and Joseph A. Huckleberry, of Law Office of Lee S. Loudon, PC, L.L.O., for appellee.

          Riedmann, Bishop, and Welch, Judges.

          WELCH, JUDGE.

         INTRODUCTION

         P & 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.

         STATEMENT OF FACTS

         Since 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 restrictions.

         In 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 injury.

         Picard 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 2017.

         At the 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.

         Medical Evidence

         After 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.

         In 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 vibratory tools."

         After 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.

         [27 Neb.App. 650] Stipulations Prior to Trial

         Prior 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.

         The 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.

         Vocational Evidence

         In 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.

         After 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 ...


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