Gimple v. Student Transp. of America , 300 Neb. 708 ( 2018 )

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300 Nebraska R eports
GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 708Shelley R. Gimple, appellee and cross-appellant,
v. Student Transportation of A merica
and National I nterstate I ns. Co.,
appellants and cross-appellees.
___ N.W.2d ___
Filed August 3, 2018. No. S-17-985.
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 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 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 which are clearly wrong in light of the
evidence.
3. Workers’ Compensation: Subrogation. Neb. Rev. Stat. § 48-118(Reissue 2010) grants an employer who has paid workers’ compensation
benefits to an employee injured as a result of the actions of a third party
a subrogation interest against payments made by the third party.
4. Workers’ Compensation: Statutes: Appeal and Error. In workers’
compensation cases, appellate courts give statutory language its plain
and ordinary meaning.
5. Words and Phrases. The plain and ordinary meaning of “any” is “all”
or “every.”
6. Workers’ Compensation: Appeal and Error. Findings of fact made by
the Workers’ Compensation Court have the same force and effect as a
jury verdict and will not be set aside unless clearly erroneous.
7. Workers’ Compensation: Evidence: Appeal and Error. When testing
the sufficiency of the evidence to support findings of fact made by the
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GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 708Workers’ Compensation Court trial judge, the evidence must be consid-
ered in the light most favorable to the successful party and the success-
ful party will have the benefit of every inference reasonably deducible
from the evidence.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson,
Kuper & Wenninghoff, P.C., L.L.O., for appellants.
Caroline M. Westerhold and Zachary W. Anderson, of
Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Vaughan, District Judge.
Papik, J.
A vehicle driven by a drunk driver struck the school bus
Shelly R. Gimple was driving and injured her. For a time,
Gimple’s employer, Student Transportation of America (Student
Transportation), paid workers’ compensation benefits to
Gimple. When Gimple later asserted that she was permanently
disabled as a result of her injuries and Student Transportation
refused to pay benefits to which Gimple claimed she was
entitled, Gimple brought suit in the Workers’ Compensation
Court. The compensation court found that Gimple was entitled
to additional benefits and that it did not have jurisdiction
to grant relief requested by Student Transportation concern-
ing a settlement Gimple entered into with the driver who
caused her injuries. The compensation court denied Gimple’s
request that she be awarded penalties, attorney fees, and inter-
est because of Student Transportation’s failure to pay the ben-
efits she requested.
The parties have now appealed and cross-appealed. We
affirm the compensation court’s findings that Gimple was enti-
tled to benefits and that it did not have jurisdiction to resolve
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Cite as 300 Neb. 708issues regarding the third-party settlement, but we reverse its
determination that Gimple was not entitled to penalties, attor-
ney fees, and interest.
BACKGROUND
Gimple’s Claim for Benefits.
On April 22, 2014, a vehicle driven by a drunk driver struck
the school bus Gimple was driving for Student Transportation.
After being taken by ambulance to a hospital, doctors diag-
nosed her with a left distal radius intra-articular fracture dis-
location. Gimple underwent multiple surgeries and treatments
over the next few years as a result of her injury.
While Student Transportation initially paid some work-
ers’ compensation benefits to Gimple as she incurred medi-
cal costs, a dispute eventually arose between the parties as to
whether Gimple was entitled to additional benefits. Gimple
claimed that she was permanently disabled as a result of her
injuries and was entitled to permanent partial disability ben-
efits (PPD benefits). After Student Transportation refused to
pay such benefits, Gimple filed an action in the compensation
court against Student Transportation and its workers’ compen-
sation insurer.
Student Transportation admitted that Gimple suffered an
injury arising out of and in the scope of her employment, but
denied the remainder of the allegations. Student Transportation
also alleged that Gimple had failed to comply with the
Nebraska Workers’ Compensation Act by settling a claim
against the third party who injured her for $25,000 without
providing notice or reimbursement to Student Transportation.
Student Transportation requested that the compensation court
declare either that the settlement was void or that Student
Transportation was entitled to a credit against past and future
workers’ compensation benefits because of Gimple’s receipt of
the settlement funds.
The compensation court conducted a trial. Importantly for
purposes of this appeal, the parties stipulated that Gimple
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Cite as 300 Neb. 708suffered an injury arising out of and in the course and scope
of her employment, that the past medical treatment Gimple
received was reasonable and necessary, and that Gimple suf-
fered a single scheduled member injury to her left upper
extremity. In addition, both parties presented evidence. Among
the evidence introduced by Gimple was a letter containing an
opinion as to Gimple’s permanent impairment from Dr. Ian
Crabb, an orthopedic doctor who had treated Gimple. In his
letter, Dr. Crabb opined on the extent of Gimple’s permanent
impairment as a result of the injury.
Initial Award.
The compensation court issued its initial award on August
23, 2017. In the initial award, the compensation court deter-
mined that Gimple was entitled to some temporary total dis-
ability benefits, but was not entitled to PPD benefits. The
compensation court’s stated reason for not awarding PPD
benefits was that Gimple failed to offer evidence of permanent
impairment. Despite the parties’ stipulation that the injury was
to her left arm, the compensation court found that the injury
was actually to Gimple’s left wrist and that Gimple failed to
offer evidence of permanent impairment to her wrist.
The compensation court also found it was without juris-
diction to grant the relief Student Transportation sought with
respect to the third-party settlement. It relied on Miller v.
M.F.S. York/Stormor, 257 Neb. 100, 595 N.W.2d 878 (1999),
in which this court held that the compensation court did not
have jurisdiction to determine the amount of credit to which
an employer was entitled on an employee’s workers’ compen-
sation benefits as a result of the previous settlement of a suit
against a third party.
Modified Award.
Gimple later filed a motion to modify the initial award. She
asserted that the compensation court erred in rejecting the par-
ties’ stipulation that her injury was to her left arm, because the
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GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 708parties had relied upon that stipulation when presenting evi-
dence and defining the issues for the court to decide. She sought
modification of the compensation court’s award to accept the
parties’ stipulation and award PPD benefits in accordance with
Dr. Crabb’s medical opinion that she suffered a 13-percent
permanent partial impairment to her left upper extremity. She
further sought penalties, attorney fees, and interest for Student
Transportation’s nonpayment of those benefits.
Following a hearing on the motion to modify, the compen-
sation court sustained Gimple’s motion and issued a modified
award finding that Gimple was entitled to PPD benefits in
the amount of $12,721.70. It found that it had erred in reject-
ing the parties’ stipulation that Gimple injured her left arm. It
noted that both parties tried the case based upon the stipula-
tion that Gimple injured her left arm and that there was no
good cause to reject that stipulation. In reliance on the report
of Dr. Crabb, the compensation court found that Gimple’s left
arm was permanently and partially disabled. Although the last
sentence of Dr. Crabb’s report assigned the impairment rating
to Gimple’s right arm, the compensation court found that to
be a scrivener’s error. Finally, the compensation court denied
Gimple’s request for penalties, attorney fees, and interest for
Student Transportation’s nonpayment of PPD benefits. It found
that there was a reasonable controversy in light of “the ‘hand
vs. arm’ PPD [benefits] debate” and the scrivener’s error in Dr.
Crabb’s report.
ASSIGNMENTS OF ERROR
On appeal, Student Transportation assigns that the compen-
sation court erred (1) in finding that it lacked jurisdiction to
determine the issues regarding the third-party settlement and
(2) in finding that Gimple was entitled to PPD benefits for an
impairment to her left upper extremity.
On cross-appeal, Gimple assigns that the compensation court
erred in failing to award penalties, attorney fees, and interest
for Student Transportation’s nonpayment of PPD benefits.
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GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 708STANDARD OF REVIEW
[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp.
2016), 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 war-
rant 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. Greenwood v. J.J. Hooligan’s, 297 Neb. 435,
899 N.W.2d 905 (2017). 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. Id.ANALYSIS
Jurisdiction to Resolve Dispute Regarding
Third-Party Settlement.
We begin with Student Transportation’s contention that the
compensation court incorrectly concluded it lacked jurisdiction
to resolve disputes related to Gimple’s settlement with the third
party who caused her injuries. For reasons we will explain
below, we conclude that the compensation court did not have
jurisdiction to decide these issues and that, therefore, neither
does this court.
Student Transportation argues the compensation court should
have found that the settlement was void because Gimple did
not comply with statutory requirements governing third-party
settlements or, alternatively, that Student Transportation was
entitled to a credit with respect to its obligations to Gimple.
Student Transportation contends that the compensation court
has authority to resolve these issues by virtue of Neb. Rev. Stat.
§§ 48-152 and 48-161 (Reissue 2010), two general jurisdic-
tional statutes that authorize the Workers’ Compensation Court
to administer the Nebraska Workers’ Compensation Act and to
decide issues “ancillary to the resolution of an employee’s right
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Cite as 300 Neb. 708to workers’ compensation benefits.” But a different provision
of the Nebraska Workers’ Compensation Act speaks directly to
the issues Student Transportation sought to raise, and so our
analysis must start there.
[3] Neb. Rev. Stat. § 48-118 (Reissue 2010) grants an
employer who has paid workers’ compensation benefits to an
employee injured as a result of the actions of a third party a
subrogation interest against payments made by the third party.
Kroemer v. Omaha Track Equip., 296 Neb. 972, 898 N.W.2d
661 (2017). The next section, Neb. Rev. Stat. § 48-118.01(Reissue 2010), discusses claims or suits the injured employee
or subrogated employer might pursue against third parties. That
section requires that the employer and employee, before mak-
ing such a claim or bringing such a suit, provide notice to the
other of the opportunity to join in such claim or action. Section
48-118.01 goes on to provide as follows:
Each party shall have an equal voice in the claim and the
prosecution of such suit, and any dispute arising shall be
passed upon by the court before which the case is pend-
ing and if no action is pending then by the district court
in which such action could be brought.
(Emphasis supplied.)
We have previously found the above-quoted language con-
trolling when a party sought a credit against benefits it owed
as a result of the employee’s receiving funds in settlement
of a claim against a third party. In Miller v. M.F.S. York/
Stormor, 257 Neb. 100, 595 N.W.2d 878 (1999), an employee
was injured when the safety equipment on machinery he was
repairing failed. The corporation alleged to have installed
the safety equipment agreed to settle a personal injury suit
against it. The federal district court in which the suit was
brought subsequently allocated the settlement between the
injured employee and the subrogated employer. The federal
court did not, however, address the amount of credit to which
the employer would be entitled for any disability benefits
accruing thereafter.
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GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 708When the employee in Miller later sought additional work-
ers’ compensation benefits, the compensation court found it
lacked authority to determine the credit to which the employer
was entitled. On appeal to this court, we agreed. We deter-
mined that the language of what is now § 48-118.01 quoted
above precluded the compensation court from determining the
amount of any credit, because the compensation court was nei-
ther, in the words of § 48-118.01, “the court before which the
case [against the third party] is pending” nor “the district court
in which such action could be brought.”
Faced with our holding in Miller that the compensation court
does not have jurisdiction to determine the amount of credit
to which an employer is entitled when an employee receives
settlement funds from a third party, Student Transportation
attempts, in various ways, to distinguish the relief it is seeking
from the relief sought in Miller. It contends that Miller held
only that the compensation court cannot determine the amount
of a credit, but that it asked the compensation court only to
find an entitlement to a credit. It also contends that it asked the
compensation court to find the settlement was void and that
Miller did not determine whether the compensation court could
reach that question.
[4,5] We find Student Transportation’s attempts to distin-
guish Miller unpersuasive. The specific issue we decided in
Miller was whether the compensation court could determine
the amount of a credit, but, in concluding that it could not, we
relied upon statutory language that is not limited to disputes
regarding the amount of a credit. Rather, § 48-118.01 provides
that “any dispute” between employer and employee concern-
ing a claim or suit against a third party must be brought in the
district court in which an action against a third party is pending
or the district court in which such action could be brought. We
give statutory language its plain and ordinary meaning. See,
e.g., Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883
N.W.2d 676 (2016). The plain and ordinary meaning of “any”
is “all” or “every.” See, e.g., In re Interest of Powers, 242 Neb.
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GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 70819, 493 N.W.2d 166 (1992). Section 48-118.01 thus applies to
every possible dispute that might arise between a subrogated
employer and an injured employee regarding a claim against a
third party, including the issues Student Transportation attempts
to raise in this case.
Disputes governed by § 48-118.01 must be decided by the
“court before which the case [against the third party] is pend-
ing and if no action is pending then by the district court in
which such action could be brought.” Because there is no
action pending against the driver who injured Gimple, Student
Transportation’s contentions regarding the third-party settle-
ment must be presented to “the district court in which such
action could be brought.” And since an action against the
third party who injured Gimple could not have been brought
in the compensation court, the compensation court correctly
concluded it did not have authority to grant the relief Student
Transportation requested regarding the third-party settlement.
PPD Benefits.
We now turn to the parties’ remaining assignments of error,
which are related and which we will address together. Both par-
ties argue that the compensation court erred in its disposition
of Gimple’s claim for PPD benefits. Student Transportation
contends that the compensation court erred by finding that
Gimple was entitled to such benefits, and Gimple claims that
the compensation court erred by not finding that she was
entitled to penalties, attorney fees, and interest for Student
Transportation’s failure to pay them. We conclude that the
compensation court correctly found that Gimple was entitled
to PPD benefits, but erred by denying her penalties, attorney
fees, and interest.
Student Transportation correctly points out that before PPD
benefits can be awarded, the workers’ compensation claimant
must prove not only that he or she suffered an injury arising
out of and in the scope of his or employment, but also that
his or her injury caused permanent impairment. See Gardner
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Cite as 300 Neb. 708v. International Paper Destr. & Recycl., 291 Neb. 415, 865
N.W.2d 371 (2015). Student Transportation does not dispute
that Gimple was injured: it acknowledges the parties’ stipula-
tion that Gimple suffered an injury to her left upper extremity
and disavows any argument that the stipulation should not be
given effect. Rather, Student Transportation argues that Gimple
introduced no evidence that she was permanently disabled as a
result of the injury to which the parties stipulated.
Gimple counters that the letter of Dr. Crabb mentioned
above contains a medical opinion that Gimple was permanently
impaired. Dr. Crabb’s letter states in relevant part:
[Gimple’s] current diagnosis is status post left distal
radius fracture with open reduction and internal fixation
accompanied by carpal instability. This condition is cer-
tainly related to her previous work accident dated April
22, 2014. . . . Gimple has reached Maximum Medical
Improvement as of November 3, 2015. She has been
released to full duty and has no permanent restrictions.
. . . Gimple has suffered a permanent partial impair-
ment rating related to her injury. Based off her limitations
in motion, she receives nine percent (9%) of the upper
extremity and due to additional unpredicted mechanical
symptoms she receives an additional four percent (4%)
of the upper extremity. This results in a total of thirteen
percent (13%) permanent partial impairment rating of the
right upper extremity.
(Emphasis supplied.)
Student Transportation cannot and does not dispute that Dr.
Crabb’s letter expresses an opinion that Gimple suffered per-
manent impairment. Instead, it claims that Dr. Crabb’s letter
cannot support an award of PPD benefits, because he refers
to Gimple’s right arm being impaired despite there being no
evidence of an injury to her right arm. In other words, Student
Transportation seems to argue that Gimple was incorrectly
awarded PPD benefits because of a mismatch between the
injury and the evidence of impairment—the parties stipulated
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Cite as 300 Neb. 708to a left arm injury, but Gimple presented evidence of right
arm impairment.
Student Transportation’s argument might present a problem
for Gimple if we were obligated to look at bits and pieces of
Dr. Crabb’s letter in isolation. It does, after all, refer to an
impairment rating to Gimple’s right arm. But, as with any
medical opinion, we must view that reference in the context
of the expert’s entire statement. See Renne v. Moser, 241 Neb.
623, 490 N.W.2d 193 (1992).
Viewed in context, it is obvious to us that it was Dr.
Crabb’s intention to assign a 13-percent impairment rating of
the left arm and that his reference to the right arm was a scriv-
ener’s error. Dr. Crabb initially refers to Gimple’s injury as an
injury to her left arm. When he later discusses his impairment
rating, he refers to “her injury,” an unmistakable reference to
the injury to the left side mentioned earlier. Furthermore, all
of the evidence in the record of Gimple’s injury depicts an
injury on the left side of her body, and Student Transportation
stipulated to an injury to the left upper extremity. Given these
facts, it would seem that everyone involved understood that
Dr. Crabb had merely made a mistake by referencing the
right arm. At oral argument, Student Transportation’s counsel
conceded as much, admitting that she knew at the time that
Dr. Crabb’s reference to the right arm was nothing more than
a mistake.
[6,7] Because we find that Dr. Crabb’s letter, when viewed
in context, expressed an opinion that Gimple’s left arm
was permanently impaired as a result of her injury, Student
Transportation’s challenge to the award of PPD benefits must
fail. Findings of fact made by the Workers’ Compensation
Court have the same force and effect as a jury verdict and will
not be set aside unless clearly erroneous. Hintz v. Farmers
Co-op Assn., 297 Neb. 903, 902 N.W.2d 131 (2017). When
testing the sufficiency of the evidence to support findings of
fact made by the Workers’ Compensation Court trial judge,
the evidence must be considered in the light most favorable
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GIMPLE v. STUDENT TRANSP. OF AMERICA
Cite as 300 Neb. 708to the successful party and the successful party will have the
benefit of every inference reasonably deducible from the evi-
dence. Id. Given the medical evidence supporting Gimple’s
permanent impairment, we cannot say that the compensation
court clearly erred by awarding PPD benefits.
This leaves only the question of whether Gimple should
have received penalties, attorney fees, and interest as a result
of Student Transportation’s failure to pay PPD benefits. Under
Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016), an employee is
entitled to a 50-percent waiting-time penalty as well as attor-
ney fees and interest if (1) the employer fails to pay compensa-
tion within 30 days of the employee’s notice of disability and
(2) no reasonable controversy existed regarding the employee’s
claim for benefits. See Armstrong v. State, 290 Neb. 205, 859
N.W.2d 541 (2015).
Because Student Transportation did not pay Gimple PPD
benefits within 30 days of Gimple’s providing notice of her
disability, she is entitled to penalties, attorney fees, and interest
if there was no reasonable controversy regarding her entitle-
ment to benefits. We have said that a reasonable controversy
exists if (1) there is a question of law previously unanswered
by the Nebraska Supreme Court, which question must be
answered to determine a right or liability for disposition of a
claim, or (2) if the properly adduced evidence would support
reasonable but opposite conclusions by the compensation court
about an aspect of an employee’s claim and those conclusions
would affect allowance or rejection of an employee’s claim, in
whole or in part. See id.In affirming the compensation court’s award of PPD ben-
efits, we have already determined that there was sufficient
medical evidence to justify awarding PPD benefits. In order to
determine whether there was a reasonable controversy, we must
now revisit that same issue, this time to determine whether the
evidence was so one-sided that the only reasonable conclusion
that could be drawn therefrom was that Gimple was entitled to
such benefits.
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Cite as 300 Neb. 708It is here that we diverge from the compensation court for
the first time. It stated that a reasonable controversy existed
“in light of the ‘hand vs. arm’ PPD [benefits] debate and by
virtue of Dr. Crabb’s report in which he ostensibly assigned
permanent impairment to [Gimple’s] right arm rather than
her left.” We do not believe either of the issues mentioned by
the compensation court creates a reasonable controversy as to
Gimple’s entitlement to PPD benefits.
The compensation court’s reference to the “hand vs. arm”
debate presumably refers to the compensation court’s hav-
ing some question as to whether the injury was actually to
Gimple’s arm and not her wrist. It was this issue that caused
the compensation court to initially reject the parties’ stipula-
tion and deny Gimple PPD benefits. This court has said, how-
ever, that voluntary stipulations are to be enforced “‘unless
some good cause is shown for declining to do so, especially
where the stipulations have been acted upon so that the parties
could not be placed in status quo.’” In re Estate of Mithofer,
243 Neb. 722, 727, 502 N.W.2d 454, 457-58 (1993), quot-
ing Martin v. Martin, 188 Neb. 393, 197 N.W.2d 388 (1972).
Student Transportation presents no argument that there was
good cause for rejecting the parties’ stipulation, and we can-
not discern any in the record. Because we do not see a basis
to reject the stipulation of a left arm injury, we find that the
issue did not amount to a reasonable controversy as to whether
Gimple was entitled to PPD benefits.
Neither do we believe that Dr. Crabb’s scrivener’s error cre-
ated a reasonable controversy. For all the reasons explained
above, we find that despite the mistaken reference to
Gimple’s right arm, it was quite clear from the context that
it was Dr. Crabb’s intention to assign an impairment rating to
Gimple’s left arm. As evidenced by the concession of Student
Transportation’s counsel at oral argument, this was not a case
in which a scrivener’s error led to confusion as to the substance
of the testimony. Everyone involved knew the reference to
the right arm was just a mistake. Under those circumstances,
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Cite as 300 Neb. 708we do not believe the scrivener’s error created a reason-
able controversy.
Having set to the side the grounds upon which the com-
pensation court found a reasonable controversy existed, we
are left with a stipulation that Gimple injured her left arm and
an undisputed medical opinion that she was permanently dis-
abled as a result of that injury. In light of these facts, we do
not believe there was a reasonable controversy as to whether
Gimple was entitled to PPD benefits.
We are aware that whether a reasonable controversy exists
under § 48-125 is a question of fact and that we will reverse
the factual findings of the Workers’ Compensation Court only
if we find them to be clearly wrong. See Armstrong v. State,
290 Neb. 205, 859 N.W.2d 541 (2015). In this case, however,
we find that the compensation court was clearly wrong. We
therefore reverse the court’s finding that a reasonable contro-
versy existed and remand this matter with directions to award
Gimple relief in accordance with § 48-125 and consistent with
this opinion.
CONCLUSION
For the reasons set forth above, we affirm the judgment of
the compensation court in part, and in part reverse, and remand
the matter with directions to award Gimple relief in accord­
ance with § 48-125 and consistent with this opinion.
A ffirmed in part, and in part reversed
and remanded with directions.