Espinoza v. Job Source USA , 313 Neb. 559 ( 2023 )

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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559Paulina Espinoza, appellant, v.
Job Source USA, Inc., appellee.
___ N.W.2d ___
Filed February 17, 2023. No. S-22-207.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Reissue 2021), 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 suf-
ficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensa-
tion 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 that are clearly wrong in
light of the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law that an appellate court resolves independently of the
trial court.
4. Statutes: Legislature: Presumptions: Judicial Construction. When
the Legislature enacts a law affecting an area which is already the sub-
ject of other statutes, it is presumed that it did so with full knowledge
of the preexisting legislation and the decisions of the Supreme Court
construing and applying that legislation.
5. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected as
superfluous or meaningless.
6. Workers’ Compensation. The Nebraska Workers’ Compensation Act
should be construed liberally to carry out its spirit and beneficent pur-
pose of providing compensation to employees injured on the job.
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Reversed and remanded for further
proceedings.
Steven H. Howard, of Steve Howard Law, for appellant.
Eric T. Lanham and Sarah N. Boston, of McAnany, Van
Cleave & Phillips, P.A., for appellee.
Danny C. Leavitt, of Salerno & Leavitt, for amicus curiae
Nebraska Association of Trial Attorneys.
Dallas D. Jones, Eric J. Sutton, and Makenzie K. Falcon,
of Baylor Evnen, L.L.P., for amicus curiae Nebraskans for
Workers’ Compensation Equity and Fairness et al.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Paulina Espinoza fell at work and injured her right wrist
and right elbow. In her subsequent claim for benefits, she
asserted that because she suffered a “loss or loss of use of
more than one member or parts of more than one member,” the
Workers’ Compensation Court should consider awarding her
benefits based on her loss of earning capacity pursuant to the
third paragraph of Neb. Rev. Stat. § 48-121(3) (Reissue 2021).
The Workers’ Compensation Court concluded that a claim-
ant who sustains injuries along the same extremity sustains
an injury to a single member and that it thus lacked authority
to consider such an award. Espinoza argues on appeal that
the compensation court’s decision was based on an incorrect
interpretation of § 48-121(3). We agree and thus reverse the
award of the compensation court and remand the cause for
further proceedings.
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559BACKGROUND
Espinoza’s Injury and Claim.
Espinoza’s employer, Job Source USA, Inc. (Job Source),
assigned her to work at a bakery. One day in March 2019,
while working at the bakery, Espinoza was struck by a door
and fell down four steps, fracturing her right wrist and right
elbow. Espinoza underwent surgery on both. She later reached
maximum medical improvement.
The doctor who treated Espinoza’s hand injuries concluded
that Espinoza’s hand and wrist injuries resulted in a 9-percent
impairment of her right hand. Another doctor who performed
an independent medical examination on Espinoza concluded
that her elbow injuries resulted in an additional 5-percent
impairment to the “upper extremity.”
Espinoza filed a petition in the Workers’ Compensation
Court. From the beginning of the case, Espinoza took the posi-
tion that she was entitled to an award of permanent disability
benefits based on her loss of earning capacity. Job Source dis-
agreed. Some statutory background is helpful to understanding
the parties’ dispute. Accordingly, we review it here.
The statute at the heart of the parties’ dispute is § 48-121. The
introductory language of § 48-121 provides that “[t]he follow-
ing schedule of compensation is hereby established for injuries
resulting in disability.” As we have previously explained, the
first three subdivisions of that statute address three different
categories of disability and set methods of determining com-
pensation for each. See, Rodgers v. Nebraska State Fair, 288
Neb. 92, 846 N.W.2d 195 (2014); Jeffers v. Pappas Trucking,
Inc., 198 Neb. 379, 253 N.W.2d 30 (1977). Subdivision (1)
addresses compensation for total disability; subdivision (2)
addresses compensation for partial disability, except in cases
covered by subdivision (3); and subdivision (3) lists the com-
pensation that is to be paid for injuries to several specified
parts of the body. See Rodgers, supra.
Historically, a claimant’s loss of earning capacity was rel-
evant to awards governed by § 48-121(1) and (2). See Rodgers,
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559supra. Awards governed by § 48-121(3), on the other hand,
were not historically based on loss of earning capacity. See
Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d
717 (2013). Section 48-121(3) instead “provide[d] for com-
pensation based on designated amounts for scheduled member
injuries, but no loss of earning capacity.” Smith, 285 Neb. at
830, 829 N.W.2d at 720.
In 2007, the Legislature enacted an amendment to
§ 48-121(3). That amendment added the following language,
which is now codified as the third paragraph of § 48-121(3):
If, in the compensation court’s discretion, compensa-
tion benefits payable for a loss or loss of use of more than
one member or parts of more than one member set forth
in this subdivision, resulting from the same accident or
illness, do not adequately compensate the employee for
such loss or loss of use and such loss or loss of use results
in at least a thirty percent loss of earning capacity, the
compensation court shall, upon request of the employee,
determine the employee’s loss of earning capacity con-
sistent with the process for such determination under
subdivision (1) or (2) of this section, and in such a case
the employee shall not be entitled to compensation under
this subdivision.
As we have summarized the amendment, it “provides for
the loss of earning capacity at the court’s discretion where
there is a loss or loss of use of more than one member which
results in at least a 30-percent loss of earning capacity.” Smith,
285 Neb. at 830, 829 N.W.2d at 720.
In this case, Espinoza sought an award based on loss of
earning capacity under the language added to § 48-121(3) in
the 2007 statutory amendment. She claimed that because she
sustained injuries to both her hand and arm, the compensa-
tion court could consider an award based on loss of earning
capacity. Job Source countered that because Espinoza’s injuries
occurred along the same extremity, the compensation court
lacked discretion to consider an award based on loss of earn-
ing capacity.
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559At trial, Espinoza offered evidence of the medical opin-
ions regarding her impairment described above. The parties
stipulated that Espinoza would be entitled to benefits for a
13-percent loss of use of her arm if the compensation court
declined to enter an award based on loss of earning capacity.
Decision of Compensation Court.
Following the trial, the compensation court entered an order
addressing various issues disputed by the parties. Relevant
to this appeal, the compensation court refused to consider an
award based on loss of earning capacity. It concluded that
“an injury to the wrist and the elbow of the same arm is still an
injury to a single member and does not entitle an employee to a
loss of earning power.” The compensation court also cited our
recent decision in Melton v. City of Holdrege, 309 Neb. 385,
960 N.W.2d 298 (2021).
Having found that it lacked authority to enter an award
based on loss of earning capacity, the compensation court
instead, pursuant to the parties’ stipulation, awarded Espinoza
benefits based on a permanent 13-percent impairment of her
arm. Espinoza timely appealed.
ASSIGNMENT OF ERROR
Espinoza assigns multiple errors on appeal, but they can be
effectively condensed and restated as one: She contends that
the compensation court erred by concluding that an employee
who sustains two injuries along the same extremity could not
have sustained a loss or loss of use of more than one member
or parts of more than one member for purposes of the third
paragraph of § 48-121(3).
STANDARD OF REVIEW
[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2021),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensa-
tion court acted without or in excess of its powers; (2) the
judgment, order, or award was procured by fraud; (3) there is
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559not 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. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586,
883 N.W.2d 676 (2016). 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. Id.[3] Statutory interpretation presents a question of law that an
appellate court resolves independently of the trial court. Bogue
v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022).
ANALYSIS
Although it takes more than a few lines of text to explain,
the issue presented in this appeal is nonetheless narrow. The
question is whether an employee who, as a result of the same
accident, suffers a partial loss of use to the right hand and
partial loss of use to the right arm has suffered a “loss or
loss of use of more than one member or parts of more than
one member set forth in this subdivision” for purposes of the
third paragraph of § 48-121(3), which allows such employees
to receive an award based on loss of earning capacity if other
requirements are met. To resolve that issue, we must interpret
§ 48-121(3). As always, statutory analysis begins with the text.
See, e.g., In re Guardianship of Eliza W., 304 Neb. 995, 938
N.W.2d 307 (2020). We thus turn to the text and the parties’
arguments as to how it should be interpreted.
Statutory Interpretation.
Espinoza argues that under the plain language of
§ 48-121(3), her partial loss of use in her right hand and par-
tial loss of use in her right arm qualify as a “loss or loss of
use of more than one member or parts of more than one mem-
ber set forth in this subdivision.” According to Espinoza, both
her right hand and her right arm are “member[s] set forth in
this subdivision” for purposes of § 48-121(3), because hands
and arms are listed in the first paragraph of § 48-121(3) in
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559which the compensation to be awarded for disabilities to spe-
cific parts of the body is set forth. Espinoza goes on to argue
that because she suffered a partial loss of use of both one of
her arms and of one of her hands, she suffered a loss to “parts
of more than one member set forth in this subdivision.”
Job Source contests Espinoza’s statutory interpretation. It
correctly observes that the term “member” is not actually
defined by the statute and that the first paragraph of § 48-121(3)
does not expressly refer to “members,” but rather to “classes”
of injuries. For these reasons, Job Source argues, Espinoza is
incorrect to assume that the parts of the body specifically listed
in the first paragraph of § 48-121(3) are each a “member” for
purposes of the third paragraph of § 48-121(3). Amici support-
ing Job Source’s position additionally argue that, because the
term “member” is not specifically defined, it should be given
its plain and ordinary meaning. Relying on selected dictionary
definitions, these amici contend that the term “member” should
be interpreted to include only limbs, i.e., arms and legs. As
we will explain below, however, there are cogent rejoinders to
each of these arguments.
First, although § 48-121(3) does not refer to the body parts
listed in its first paragraph as “members,” for decades, this
court has referred to those listed body parts as “members”
or, more specifically, “scheduled members.” See, e.g., Melton
v. City of Holdrege, 309 Neb. 385, 391, 960 N.W.2d 298,
305 (2021) (“scheduled member”); Madlock v. Square D Co.,
269 Neb. 675, 679, 695 N.W.2d 412, 415 (2005) (“scheduled
member”); Rodriguez v. Monfort, Inc., 262 Neb. 800, 810, 635
N.W.2d 439, 448 (2001) (“[d]isabilities listed under subsection
(3), referred to as scheduled member disabilities, are gener-
ally compensated according to the amounts provided by stat-
ute”); Nordby v. Gould, Inc., 213 Neb. 372, 374, 329 N.W.2d
118, 119 (1983) (“scheduled member”); Cardenas v. Peterson
Bean Co., 180 Neb. 605, 609, 144 N.W.2d 154, 157 (1966)
(“scheduled member”). Indeed, decisions of this court referring
to the body parts listed in the first paragraph of § 48-121(3)
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Cite as 313 Neb. 559as “members” stretch back to at least 1922. See Poast v.
Omaha Merchants Express & Transfer Co., 107 Neb. 516,
519, 186 N.W. 540, 542 (1922) (“[s]ubdivision 3 prescribes
a schedule of compensation to be paid for the loss of various
members”).
[4] This court’s consistent references to the body parts
listed in the first paragraph of § 48-121(3) as “members”
is consequential. One of our familiar principles of statutory
interpretation is that when the Legislature enacts a law affect-
ing an area which is already the subject of other statutes, it is
presumed that it did so with full knowledge of the preexisting
legislation and the decisions of the Supreme Court construing
and applying that legislation. Hauptman, O’Brien v. Auto-
Owners Ins. Co., 310 Neb. 147, 964 N.W.2d 264 (2021). It is
thus fair to presume that when the Legislature added what is
now the third paragraph of § 48-121(3) in 2007 and referred
therein to a “member set forth in this subdivision,” it was
aware of our many decisions describing the body parts listed
in the first paragraph of § 48-121(3) as members and using the
term in the same sense.
[5] Also relevant to the statutory analysis is the fact that
the pertinent language does not refer to the term “member” in
isolation, but instead to “member set forth in this subdivision.”
Another of our familiar principles of statutory interpretation
holds that a court must attempt to give effect to all parts of a
statute, and if it can be avoided, no word, clause, or sentence
will be rejected as superfluous or meaningless. Dean v. State,
288 Neb. 530, 849 N.W.2d 138 (2014). For the phrase “mem-
ber set forth in this subdivision” to have effect, the various
“members” must be “set forth” somewhere in § 48-121(3).
One obvious place in which “members” could be set forth is
in the listing of specific body parts in the first paragraph of
§ 48-121(3). Job Source and the amici supporting its position
do not identify another place in § 48-121(3) where the “mem-
bers” are “set forth.”
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559Finally, to the extent the amici supporting Job Source’s
position contend that, of the parts of the body listed in the
first paragraph of § 48-121(3), only arms and legs qualify as
“members,” a response is available to that argument as well.
While the amici point to selected dictionary definitions of
“member” that limit the term to limbs, many other dictionary
definitions more broadly define the term to include parts of
the body generally. Compare 4 J.E. Schmidt, M.D., Attorneys’
Dictionary of Medicine and Word Finder M-113 (1998) (“[a]
projecting part of the body, especially a limb”), and Merriam-
Webster’s Collegiate Dictionary 774 (11th ed. 2020) (“a body
part or organ: as a: LIMB”), with Webster’s Third New
International Dictionary, Unabridged 1408 (1993) (“a bodily
part or organ”), and Dorland’s Illustrated Medical Dictionary
1006 (28th ed. 1994) (“a part of the body distinct from the
rest in function or position”). See, also, State v. Quintana, 308
Wis. 2d 615, 748 N.W.2d 447 (2008).
For the reasons we have just discussed, we find that it is at
least reasonable to interpret the phrase “loss or loss of use of
more than one member or parts of more than one member set
forth in this subdivision” to cover a partial loss of use of both
the right hand and right arm. Accordingly, the best that Job
Source could hope for is a finding that the statute is ambigu-
ous on that question. See State v. McColery, 301 Neb. 516,
522, 919 N.W.2d 153, 158 (2018) (“[a] statute is ambiguous
if it is susceptible of more than one reasonable interpretation,
meaning that a court could reasonably interpret the statute
either way”). As we will explain, however, the identification
of statutory ambiguity would not be enough for Job Source to
prevail here.
Resolution of Statutory Ambiguity.
Although Job Source does not appear to expressly concede
that the statutory language at issue is ambiguous, it does make
some arguments that appear to be aimed at resolving statu-
tory ambiguity. For example, it places heavy reliance on the
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ESPINOZA V. JOB SOURCE USA
Cite as 313 Neb. 559legislative history of the 2007 amendment to § 48-121(3). This
court has said that a court may inquire into the legislative his-
tory of an ambiguous statute. See, e.g., McColery, supra.
The legislative history upon which Job Source relies is
primarily statements of senators during a committee hear-
ing and floor debate on the 2007 amendment to § 48-121(3).
In the floor debate and committee hearing on the proposed
bill, senators posited examples of multiple-member injuries
that would qualify for loss of earning capacity benefits under
the 2007 amendment. Those included “bilateral carpal tunnel
syndrome,” Floor Debate, L.B. 588, 100th Leg., 1st Sess. 91
(Apr. 25, 2007); “bilateral shoulder injuries,” id. at 88; “two
broken arms,” Business and Labor Committee Hearing, L.B.
588, 100th Leg., 1st Sess. 72 (Feb. 12, 2007); and “two bro-
ken legs,” id. Job Source argues that the fact that the senators
referred to only bilateral injuries indicates that the Legislature
did not intend for the amended language to cover multiple inju-
ries along the same extremity, as in Espinoza’s case.
We are not persuaded. No senator offered a comprehensive
definition of which body parts count as “members” for pur-
poses of the 2007 amendment. While the senators noted some
examples of multiple-member injuries that would qualify a
worker for loss of earning capacity benefits, nothing on the
face of the statute or in the legislative history suggests that the
senators were setting forth an exhaustive list of all qualifying
multiple-member injuries. The portions of the legislative his-
tory that Job Source relies upon simply do not shed light on
whether an injury to a hand and arm on the same side is an
injury to more than one member under § 48-121(3).
We are likewise unconvinced by Job Source’s argument
that we should interpret § 48-121(3) in the manner it urges
based on our recent decision in Melton v. City of Holdrege,
309 Neb. 385, 960 N.W.2d 298 (2021). In Melton, the claim-
ant’s work-related injury required an amputation below the
knee and resulted in a loss of function of his leg. Pursuant
to language in § 48-121(3) providing that the amputation
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Cite as 313 Neb. 559below the knee shall be considered as equivalent to the loss of
a foot, the compensation court awarded the claimant statutory
benefits for 150 weeks for the loss of his foot and an addi-
tional 43 weeks of benefits for a 20-percent loss of function to
his leg. On appeal, the claimant argued that the compensation
court should have awarded him consecutive benefits for the
total loss of his leg, the loss of his foot, and the loss of his five
toes. We rejected the argument that the claimant was entitled to
receive benefits for both the loss of a foot and the loss of toes,
acknowledging that “such a loss would include a loss of the
toes on the foot,” but concluding that “the Legislature limited
the loss to the foot.” Id. at 394, 960 N.W.2d at 306. We also
found that the compensation court did not clearly err by com-
pensating the claimant “for the functional loss of his leg that
was not already accounted for in the compensation for the loss
of his foot.” Id.
Job Source argues that because the claimant in Melton could
not obtain benefits for both his foot and his toes, Espinoza
cannot claim disabilities to both her hand and arm. We dis-
agree that Melton applies here. The claimant in Melton sought
scheduled benefits under the first paragraph of § 48-121(3),
but we concluded that the Legislature, via express language
concerning amputations, limited those benefits to those pay-
able for the loss of a foot. In this case, Espinoza is not seeking
scheduled benefits under the first paragraph of § 48-121(3),
but an award based on loss of earning capacity under the
third paragraph of that subdivision. The statutory language
concerning amputations does not apply in this case, and we
do not discern any similar statutory language requiring that
the partial loss of a hand be included within the partial loss of
the corresponding arm. Courts are not to read meaning into a
statute that is not there. See Parks v. Hy-Vee, 307 Neb. 927,
951 N.W.2d 504 (2020).
In addition to legislative history and Melton, Job Source
also contends that Espinoza’s interpretation is unreasonable
as a matter of policy. It contends that we should consider
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Cite as 313 Neb. 559whether Espinoza’s interpretation is reasonable as a matter of
policy, based on our statements that “[i]n construing a statute
it is presumed that the Legislature intended a sensible rather
than an absurd result,” Rodriquez v. Prime Meat Processors,
228 Neb. 55, 65, 421 N.W.2d 32, 39 (1988), and that appellate
courts should “reconcile different provisions of the statute[]
so they are consistent, harmonious, and sensible,” Rodgers
v. Nebraska State Fair, 288 Neb. 92, 101, 846 N.W.2d 195,
202 (2014). Job Source and its supporting amici contend
that Espinoza’s interpretation is unreasonable as a matter of
policy because it would allow someone who has suffered rela-
tively minor, partial impairments along the same extremity to
receive an award based on loss of earning capacity, while a
person who has undergone amputation at or above the elbow
or knee would not be eligible.
We disagree that we should resolve statutory ambiguity
in Job Source’s favor based on its argument that Espinoza’s
interpretation results in an unreasonable policy. Job Source
may well be correct that under Espinoza’s interpretation, some
employees who sustain relatively minor injuries to multiple
members will be eligible for an award based on loss of earn-
ing capacity while other employees who suffer major inju-
ries to only one member will not be eligible. That, however,
is an inherent consequence of the Legislature’s decision to
make eligibility for an award based on loss of earning capac-
ity dependent on whether there was a loss or loss of use of
multiple members, as opposed to a total level of impairment
or some other factor. To illustrate, no one involved in this
case appears to dispute that an employee who suffered a rela-
tively minor loss of use in both arms would be eligible for
a loss of earning capacity award under the third paragraph
of § 48-121(3) (if he or she demonstrated the other require-
ments for such an award), while a worker who suffered a
complete loss of use of only one leg would not. See, also,
Rodgers, supra (reversing and remanding for consideration
of award based on loss of earning capacity where there was
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Cite as 313 Neb. 559undisputed evidence employee had been assigned 2-percent
impairment rating for one knee and 40-percent impairment
rating for other knee). The fact that one can imagine a hypo-
thetical case in which someone “more injured” than Espinoza
will not be eligible for an award based on loss of earning
capacity does not meaningfully inform the statutory interpre-
tation question before us.
Moreover, it must be kept in mind that a finding that an
employee has suffered a loss or loss of use of more than one
member or parts of more than one member does not result in
that employee’s automatic entitlement to an award based on
loss of earning capacity. The injuries of such an employee
must also “result[] in at least a thirty percent loss of earn-
ing capacity,” and, additionally, the compensation court must
exercise discretion to determine whether the scheduled mem-
ber benefits to which he or she would otherwise be entitled
“do not adequately compensate the employee.” § 48-121(3).
Mindful of the foregoing discussion and the fact it is the
Legislature’s role to set the law and public policy of the state,
see Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d
754 (2019), we do not believe it appropriate to resolve statu-
tory ambiguity based on Job Source’s policy arguments.
[6] Not persuaded by the arguments to resolve statutory
ambiguity in Job Source’s favor, we believe that another
canon of interpretation comes into play. We have repeatedly
said that the Nebraska Workers’ Compensation Act should
be construed liberally to carry out its spirit and beneficent
purpose of providing compensation to employees injured on
the job. Sellers v. Reefer Systems, 305 Neb. 868, 943 N.W.2d
275 (2020). See, also, Spratt v. Crete Carrier Corp., 311 Neb.
262, 971 N.W.2d 335 (2022) (tracing canon back to at least
1932). When a workers’ compensation statute remains ambig-
uous after employing traditional tools of statutory interpreta-
tion, this canon compels us to interpret the statute liberally
to provide compensation to the injured employee. We thus
conclude that the compensation court erred by finding that
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Cite as 313 Neb. 559an employee with multiple injuries along the same extremity
could not have suffered a “loss or loss of use of more than
one member or parts of more than one member” for purposes
of the third paragraph of § 48-121(3). We reverse the award
of the compensation court and remand the cause for further
proceedings consistent with this opinion.
CONCLUSION
Because we find that the compensation court erred in its
interpretation of § 48-121(3), we reverse the award of the com-
pensation court and remand the cause for further proceedings
consistent with this opinion.
Reversed and remanded for
further proceedings.