Armstrong v. State ( 2015 )

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ARMSTRONG v. STATE 205
Cite as 290 Neb. 205
did not witness the incident. Neither the State nor the defense
presented additional evidence on this issue.
Without any other evidence to rely on, the district court
found Cronin’s testimony to be more credible than Wells’ tes-
timony. We are not in a position to reweigh the credibility of
the witnesses.
Viewing the evidence in a light most favorable to the pros-
ecution, which in this case would mean assuming Cronin’s
account of the incident is correct, there was sufficient evidence
to find all essential elements of the crime beyond a reasonable
doubt. The evidence establishes that Wells knew Cronin was
a police officer performing his official duties and that Wells
caused a bodily injury by kicking Cronin in the knee and thigh
several times, which resulted in pain to Cronin. Wells’ assign-
ment of error is without merit.
CONCLUSION
The judgment and sentences of the district court are affirmed.
Affirmed.
Wright, J., participating on briefs.
Terry J. Armstrong, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___
Filed February 20, 2015. No. S-14-438.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the compensation court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in excess of its pow-
ers, (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. ____: ____. On appellate review, the factual findings made by the trial judge of
the Workers’ Compensation Court have the effect of a jury verdict and will not be
disturbed unless clearly wrong.
3. ____: ____. In workers’ compensation cases, an appellate court determines ques-
tions of law.
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4. Workers’ Compensation: Words and Phrases. Earning power, as used in Neb.
Rev. Stat. § 48-121(2) (Reissue 2010), is not synonymous with wages. It includes
eligibility to procure employment generally, ability to hold a job obtained, and
capacity to perform the tasks of the work, as well as the ability of the worker to
earn wages in the employment in which he or she is engaged or for which he or
she is fitted.
5. ____: ____. Total disability does not mean a state of absolute helplessness. It
means that because of an injury (1) a worker cannot earn wages in the same kind
of work, or work of a similar nature, that he or she was trained for or accustomed
to perform or (2) the worker cannot earn wages for work for any other kind of
work which a person of his or her mentality and attainments could do.
6. Workers’ Compensation. A worker is not, as a matter of law, totally dis-
abled solely because the worker’s disability prevents him or her from working
full time.
7. ____. Under the “odd-lot” doctrine, total disability may be found in the case of
workers who, while not altogether incapacitated for work, are so handicapped
that they will not be employed regularly in any well-known branch of the
labor market.
8. ____. A worker may be totally disabled for all practical purposes, despite
being able to find trivial, occasional employment under rare conditions at small
remuneration.
9. ____. Whether a claimant has suffered a loss of earning power or is totally dis-
abled are questions of fact.
10. Appeal and Error. For an appellate court to consider an alleged error, a party
must specifically assign and argue it.
11. Workers’ Compensation: Penalties and Forfeitures: Time. Under Neb. Rev.
Stat. § 48-125(1)(b) (Cum. Supp. 2014), an employer must pay a 50-percent
waiting-time penalty if (1) the employer fails to pay compensation within 30 days
of the employee’s notice of disability and (2) no reasonable controversy existed
regarding the employee’s claim for benefits.
12. Workers’ Compensation: Appeal and Error. For the purpose of Neb. Rev.
Stat. § 48-125 (Cum. Supp. 2014), a reasonable controversy exists if (1) there
is a question of law previously unanswered by the Supreme Court, which ques-
tion 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 about an aspect of an employee’s claim, which conclusions affect allowance
or rejection of an employee’s claim, in whole or in part.
13. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures: Words
and Phrases. Whether a reasonable controversy exists under Neb. Rev. Stat.
§ 48-125 (Cum. Supp. 2014) is a question of fact.
14. Workers’ Compensation: Evidence: Time. Evidence showing a reason-
able controversy does not have to be known to the employer at the time it
refuses benefits.
15. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Ordinarily,
when an appellate court judicially construes a statute and that construction does
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ARMSTRONG v. STATE 207
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not evoke an amendment, the court presumes that the Legislature acquiesced in
the court’s determination of the Legislature’s intent.
16. Workers’ Compensation. Because an employer is liable under Neb. Rev. Stat.
§ 48-120 (Reissue 2010) for reasonable medical and hospital services, the
employer must also pay the cost of travel incident to and reasonably necessary
for obtaining these services.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Michelle D. Epstein and Jason G. Ausman, of Ausman Law
Firm, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Elizabeth A. Gregory
for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Connolly, J.
SUMMARY
Terry J. Armstrong was injured while working as a nurse
in the employ of the State of Nebraska. The Workers’
Compensation Court found that Armstrong was permanently
partially disabled and suffered a 75-percent loss of earning
power. On appeal, Armstrong argues that a worker who is
permanently restricted to part-time work is, as a matter of
law, totally disabled. Armstrong also argues that evidence
produced by an employer at trial—but unknown at the time
benefits are denied—cannot create a reasonable controversy
for purposes of the employee’s entitlement to a waiting-time
penalty. We disagree on both points, but remand the cause so
that the court may decide if the State is liable for certain mile-
age expenses.
BACKGROUND
Factual Background
On May 22, 2010, Armstrong injured her left shoulder while
working as a staff nurse at the Eastern Nebraska Veterans’
Home. Armstrong and her employer stipulated that Armstrong
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suffered a rotator cuff tear in her left shoulder for which she
was “entitled to compensation.” The State paid Armstrong tem-
porary total disability (TTD) benefits from May 22, 2010, until
April 23, 2012, when it concluded that Armstrong had reached
maximum medical improvement.
As one physician noted, Armstrong’s “medical history is
indeed complicated.” Armstrong underwent surgery to repair
the rotator cuff tear in August 2010. Her surgeon stated in
September 2011 that Armstrong had reached maximum medi-
cal improvement as to her rotator cuff injury.
But multiple physicians opined that Armstrong developed
complex regional pain syndrome (CRPS) after the surgery.
CRPS is a chronic pain condition that usually affects a limb
after an injury to that limb.
At the request of Armstrong’s attorney, Dr. D.M. Gammel
reviewed the “countless medical records” and examined
Armstrong on October 8, 2013. Gammel concluded that
Armstrong’s rotator cuff injury caused her CRPS and that her
CRPS had reached maximum medical improvement. Gammel
opined that Armstrong was permanently limited to working
4-hour days.
Two physicians who examined Armstrong and the medi-
cal records at the State’s request reached different conclu-
sions. One found “minimal objective evidence” of CRPS and
opined that Armstrong was malingering. The other stated that
Armstrong’s “bilateral upper extremity hypersensitivity” was
not caused by the May 2010 accident.
P rocedural Background
In January 2013, Armstrong filed a petition in Workers’
Compensation Court alleging that she suffered from CRPS and
had sustained injuries to both her left and right upper limbs
because of the May 2010 accident. Armstrong also alleged that
she suffered from bipolar, anxiety, and adjustment disorders
because of the accident. Armstrong requested TTD benefits
from May 22, 2010, to October 8, 2013—the date Gammel
opined that she reached maximum medical improvement as to
her CRPS—and permanent total disability benefits starting on
October 8, 2013.
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The court appointed a vocational rehabilitation counselor to
provide a loss of earning capacity analysis. Karen Stricklett,
the appointed counselor, authored a report that gave different
estimates based on the opinions of various physicians. Because
of Gammel’s opinion that Armstrong could work only 4 hours
per day, Stricklett estimated that Armstrong would have a
75-percent loss of earning capacity.
The compensation court entered an award finding that
Armstrong was entitled to TTD and permanent partial disabil-
ity benefits. In addition to the rotator cuff tear, the court found
that Armstrong suffered from CRPS because of the accident.
The court also found that Armstrong’s preexisting anxiety had
worsened because of the May 2010 accident. But it concluded
that any changes in Armstrong’s depression or cognition were
unrelated to the workplace injury.
The court awarded Armstrong TTD benefits from April 24,
2012, to October 8, 2013. After that date, the court awarded her
permanent partial disability benefits measured by her lost earn-
ing power. The court stated that Armstrong met her burden of
proving a permanent impairment “through the medical report
of Dr. Gammel, who opined that [Armstrong] could work four
hours per day in the light demand category.”
For Armstrong’s lost earning power, the court found that
she “suffered a 75 percent loss of earning capacity as opined
by . . . Stricklett.” The court said that it “simply believes that
[Armstrong] is capable of doing more than she led her doctors
to believe.” In particular, the court noted reports from emer-
gency room doctors who said that Armstrong showed no signs
of stress while using her cell phone but “‘cries out in pain with
any motion that we do.’” The court also said that it observed
Armstrong during trial and noticed that she manipulated papers
and moved her limbs without apparent difficulty.
Finally, the court denied Armstrong a waiting-time penalty,
attorney fees, and interest under Neb. Rev. Stat. § 48-125
(Cum. Supp. 2014), because a reasonable controversy existed.
Armstrong argued that the State did not have evidence of a
reasonable controversy when it stopped making TTD payments
in April 2012. The court agreed, but found that the State had
presented such evidence at trial.
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ASSIGNMENTS OF ERROR
Armstrong assigns that the compensation court erred by (1)
finding that Armstrong suffered a 75-percent loss of earning
capacity, because “a 20-hour workweek is not suitable gainful
employment as a matter of law”; (2) finding that Armstrong
was not entitled to a waiting-time penalty, attorney fees, and
interest; and (3) failing to award mileage expenses for all of
Armstrong’s travel to injury-related medical appointments.
STANDARD OF REVIEW
[1] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside only upon the grounds
that (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.1
[2,3] On appellate review, the factual findings made by
the trial judge of the Workers’ Compensation Court have the
effect of a jury verdict and will not be disturbed unless clearly
wrong.2 In workers’ compensation cases, we determine ques-
tions of law.3
ANALYSIS
Partial Disability
Armstrong argues that an injured worker with a permanent
disability that prevents her from working “full-time” is, as a
matter of law, totally disabled.4 According to Armstrong, only
“full-time, 40-hour per week employment positions” may be
considered when determining a permanently disabled worker’s
lost earning power.5 She frames the issue as follows: “[C]an
a worker who is permanently restricted to working 4-hour
1
Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014).
2
Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
3
See id.
4
Brief for appellant at 24.
5
Id.
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days, resulting in a 20-hour workweek, be less than perma-
nently and totally disabled pursuant to Nebraska Workers’
Compensation law?”6
The State contends that Armstrong “confuses wages with
earning power.”7 Additionally, the State argues that Armstrong’s
interpretation would lead to “absurd results,” such as an
injured worker with a 39-hour workweek restriction being
deemed totally disabled solely on that ground.8 In response,
Armstrong says that she “does not suggest that the Court adopt
a bright-line rule with respect to how many hours worked
per week constitutes full-time or part-time employment.”9
Instead, she appears to argue that she is totally disabled unless
she can earn “wages similar” to those she would earn in a
40-hour workweek.10
Neb. Rev. Stat. § 48-121 (Reissue 2010) provides compensa-
tion for three categories of job-related disabilities.11 Subsection
(1) sets the amount of compensation for total disability; sub-
section (2) sets the amount of compensation for partial disabil-
ity, except in cases covered by subsection (3); and subsection
(3) sets out “schedule” injuries to specified parts of the body
with compensation established therefor.12
[4] The compensation court awarded Armstrong permanent
partial disability benefits under § 48-121(2), which are meas­
ured by 662⁄3 percent of the difference between weekly wages
at the time of the injury and earning power thereafter. As
used in § 48-121(2), earning power is not synonymous with
wages.13 It includes eligibility to procure employment gener-
ally, ability to hold a job obtained, and capacity to perform
6
Id. at 13.
 7
Brief for appellee at 14.
8
Id. at 15.
 9
Reply brief for appellant at 7.
10
Id.
11
Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 195 (2014).
12
Id.
13
Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683, 696 N.W.2d 142
(2005).
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the tasks of the work, as well as the ability of the worker to
earn wages in the employment in which he or she is engaged
or for which he or she is fitted.14
[5] Armstrong claims that she is permanently totally dis-
abled. Total disability does not mean a state of absolute help-
lessness.15 It means that because of an injury (1) a worker
cannot earn wages in the same kind of work, or work of a
similar nature, that he or she was trained for or accustomed to
perform or (2) the worker cannot earn wages for work for any
other kind of work which a person of his or her mentality and
attainments could do.16
The thrust of Armstrong’s argument is that because her
weekly wage for permanent disability benefits must be calcu-
lated on a 40-hour workweek, her earning power is necessar-
ily zero if her disability prevents her from working full time.
Generally, Neb. Rev. Stat. § 48-126 (Reissue 2010) provides
that a worker’s weekly wage is determined by averaging
the earnings from the 26 weeks preceding the injury. But in
cases of permanent disability, § 48-121(4) provides that if the
worker’s wages were paid by the hour, weekly wages must
be computed on a minimum 40-hour workweek. Armstrong
urges us to read “earning power” under § 48-121(2) “in con-
junction with” the method of calculating weekly wage under
§ 48-121(4).17
We have acknowledged that the plain text of § 48-121(4)
sometimes requires “distortion” in the calculation of a per-
manently disabled worker’s weekly wage.18 For example, we
noted in Mueller v. Lincoln Public Schools19 that § 48-121(4)
required the claimant’s “workweek be extended to 40 hours,”
even though she only worked 371⁄2 hours per week before
14
Id.
15
Money v. Tyrrell Flowers, supra note 2.
16
Id.
17
Brief for appellant at 23.
18
Mueller v. Lincoln Public Schools, 282 Neb. 25, 30, 803 N.W.2d 408, 411
(2011).
19
Id.
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her injury. Similarly, we held in Becerra v. United Parcel
Service20 that the compensation court did not err by calculat-
ing the permanently disabled claimant’s weekly wage on a
40-hour workweek, even though the claimant worked 17 hours
per week before his injury. At issue in Becerra was the claim-
ant’s vocational rehabilitation priority under Neb. Rev. Stat.
§ 48-162.01(3) (Reissue 2010), which a vocational counselor
testified depended on the claimant’s weekly wage.
[6] We conclude that a worker is not, as a matter of law,
totally disabled solely because the worker’s disability prevents
him or her from working full time. While § 48-121(4) requires
a permanently disabled hourly worker’s weekly wage to be cal-
culated on a 40-hour workweek, “wages and earning capacity
are not the same thing.”21 Compensation for partial disability
under § 48-121(2) is a function of the worker’s “wages” and
“earning power.” For a permanently disabled hourly worker,
§ 48-121(4) requires that wages be calculated based on a
40-hour workweek. But it does not mandate that earning power
be deemed zero solely because the worker is unable to work
full time.
Of course, a worker’s inability to work full time is relevant
to the worker’s earning power. For example, we held in Giboo
v. Certified Transmission Rebuilders22 that the compensation
court erred by relying on an earning power report that failed
to consider the impact of a 6-hour workday restriction. We
noted the numerical truism that, all else being equal, a person
who works only 6 hours per day will earn less than a person
who works 8 hours per day. But we also explained that such
a restriction “reduce[s] a person’s earning capacity by virtue
of the fact that it reduces the number of jobs available to
that individual.”23
20
Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).
21
Kam v. IBP, inc., 12 Neb. Ct. App. 855, 867, 686 N.W.2d 631, 641 (2004).
See, also, Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886
(2010); Davis v. Goodyear Tire & Rubber Co., supra note 13.
22
Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d
362 (2008).
23
Id. at 388, 746 N.W.2d at 377.
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[7,8] Furthermore, a worker may be totally disabled even
though she is able to work in some limited capacity. Under the
“odd-lot” doctrine, total disability may be found in the case
of workers who, while not altogether incapacitated for work,
are so handicapped that they will not be employed regularly in
any well-known branch of the labor market.24 A worker may
be totally disabled for all practical purposes, despite being
able to find trivial, occasional employment under rare condi-
tions at small remuneration.25 For example, we have affirmed
a finding of total disability where the claimant had a “low
tolerance for prolonged sitting, standing, or walking”26; where
the claimant could engage in activity for only 30 minutes
before needing to rest27; and where the claimant worked 16
to 18 hours per week only “at the sufferance of an employer
willing to provide the extra supervision and who would toler-
ate his aberrational behavior.”28 But we have noted that “not
all part-time work . . . is trivial.”29
[9,10] Whether a claimant has suffered a loss of earn-
ing power or is totally disabled are questions of fact.30
Here, Armstrong assigns that the compensation court erred
24
Lovelace v. City of Lincoln, 283 Neb. 12, 14, 809 N.W.2d 505, 507 (2012).
Cf., Money v. Tyrrell Flowers, supra note 2; Zavala v. ConAgra Beef Co.,
265 Neb. 188, 655 N.W.2d 692 (2003); Frauendorfer v. Lindsay Mfg. Co.,
263 Neb. 237, 639 N.W.2d 125 (2002); Schlup v. Auburn Needleworks,
239 Neb. 854, 479 N.W.2d 440 (1992).
25
See, McDonald v. Lincoln U-Cart Concrete Co., 232 Neb. 960, 442
N.W.2d 892 (1989); Heironymous v. Jacobsen Transfer, 215 Neb. 209, 337
N.W.2d 769 (1983); Craig v. American Community Stores Corp., 205 Neb.
286, 287 N.W.2d 426 (1980); Brockhaus v. L. E. Ball Constr. Co., 180
Neb. 737, 145 N.W.2d 341 (1966); Wheeler v. Northwestern Metal Co.,
175 Neb. 841, 124 N.W.2d 377 (1963).
26
Frauendorfer v. Lindsay Mfg. Co., supra note 24, 263 Neb. at 252, 639
N.W.2d at 139.
27
Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815 (1990).
28
McDonald v. Lincoln U-Cart Concrete Co., supra note 25, 232 Neb. at
969, 442 N.W.2d at 899.
29
Id.
30
See, Kim v. Gen-X Clothing, 287 Neb. 927, 845 N.W.2d 265 (2014); Stacy
v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).
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by finding that she had a 75-percent loss of earning power
because “a 20-hour workweek is not suitable gainful employ-
ment as a matter of law.” Having rejected this assignment, we
do not consider any alleged deficiencies in Stricklett’s report
or the sufficiency of the evidence to support the court’s factual
finding that Armstrong suffered a 75-percent loss of earning
power. For an appellate court to consider an alleged error, a
party must specifically assign and argue it.31
Waiting-Time P enalty, Attorney
Fees, and Interest
Armstrong argues that she is entitled to a waiting-time pen-
alty, attorney fees, and interest because of the State’s failure
to pay TTD benefits within 30 days of notice of her disability.
The compensation court found that the State “did not have a
basis for the discontinuation of [Armstrong’s] TTD benefits at
the time it did so.” But the court denied Armstrong a waiting-
time penalty because the State “present[ed] evidence at trial
that justified its discontinuation of benefits.” Armstrong con-
tends that a reasonable controversy must exist at the time the
employer denies benefits.
[11] Under § 48-125(1)(b), an employer must pay a 50-
percent waiting-time penalty if (1) the employer fails to pay
compensation within 30 days of the employee’s notice of dis-
ability and (2) no reasonable controversy existed regarding
the employee’s claim for benefits.32 When compensation is so
delayed and the employee receives an award from the compen-
sation court, the employee is also entitled to attorney fees and
interest.33 Although “reasonable controversy” appears nowhere
in the text of § 48-125, the phrase has been part of our waiting-
time penalty jurisprudence for more than 90 years.34
31
deNouri & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).
32
See Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009).
33
§ 48-125(2)(a) and (3). See Holdsworth v. Greenwood Farmers Co-op, 286
Neb. 49, 835 N.W.2d 30 (2013).
34
Behrens v. American Stores Packing Co., 234 Neb. 25, 449 N.W.2d 197
(1989) (citing Updike Grain Co. v. Swanson, 104 Neb. 661, 178 N.W. 618
(1920)).
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[12,13] Under the test we announced in Mendoza v. Omaha
Meat Processors,35 for the purpose of § 48-125, a reasonable
controversy exists if (1) 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 about an
aspect of an employee’s claim, which conclusions affect allow-
ance or rejection of an employee’s claim, in whole or in part.36
Whether a reasonable controversy exists under § 48-125 is a
question of fact.37
[14] We have explained that “[u]nder the Mendoza test,
when there is some conflict in the medical testimony adduced
at trial, reasonable but opposite conclusions could be reached
by the compensation court.”38 And we have held that a reason-
able controversy existed even though the evidence showing
the controversy was unknown at the time the employer refused
benefits. In Dawes v. Wittrock Sandblasting & Painting,39
the claimant argued that the compensation court erred by not
awarding him a waiting-time penalty. We disagreed:
Here, [the employer] presented expert medical testimony
that would have supported a finding that [the claimant’s]
35
Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280
(1987).
36
Cf., Manchester v. Drivers Mgmt., supra note 32; Stacy v. Great Lakes
Agri Mktg., supra note 30; Bixenmann v. H. Kehm Constr., 267 Neb. 669,
676 N.W.2d 370 (2004); Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d
470 (2000); McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587
N.W.2d 687 (1999).
37
Manchester v. Drivers Mgmt., supra note 32.
38
McBee v. Goodyear Tire & Rubber Co., supra note 36, 255 Neb. at 908-
09, 587 N.W.2d at 692. See, U S West Communications v. Taborski, 253
Neb. 770, 572 N.W.2d 81 (1998); Kerkman v. Weidner Williams Roofing
Co., 250 Neb. 70, 547 N.W.2d 152 (1996). See, also, Vonderschmidt v.
Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001).
39
Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved in part on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
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condition was not the result of an accident arising out of
and in the course of employment. . . . While this opinion
was not adduced until after the denial of benefits, it is
evidence that [the employer] had an actual basis in law or
fact for denying [the claimant’s] claim.40
So, we concluded that a reasonable controversy existed
based on testimony unknown at the time the employer denied
benefits.
[15] Ordinarily, when an appellate court judicially construes
a statute and that construction does not evoke an amendment,
we presume that the Legislature acquiesced in the court’s
determination of the Legislature’s intent.41 The Legislature
has amended § 48-125 four times since we decided Dawes.42
But none of the amendments are relevant to our reasoning.
Because the Legislature did not materially change the lan-
guage of § 48-125, our holding in Dawes—that a reason-
able controversy can be shown by evidence adduced at trial
but unknown at the time benefits were denied—continues
to apply.
Armstrong contends that Dawes discourages the prompt
payment of benefits by giving the employer an incentive to
delay. As we noted in Dawes, the purpose of the waiting-time
penalties in § 48-125 is to “require[] that employe[r]s and
insurers promptly handle and decide claims.”43 We do not
believe that Dawes is inconsistent with this purpose. If an
employer chooses to ignore the employee’s notice of disabil-
ity, it does so at its own peril. Should the employee’s claim
40
Dawes v. Wittrock Sandblasting & Painting, supra note 39, 266 Neb. at
554, 667 N.W.2d at 191 (citing Mendoza v. Omaha Meat Processors,
supra note 35).
41
See Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d
51 (2009).
42
See, 2011 Neb. Laws, L.B. 151, § 1; 2009 Neb. Laws, L.B. 630, § 3; 2005
Neb. Laws, L.B. 238, § 4, and L.B. 13, § 5.
43
Dawes v. Wittrock Sandblasting & Painting, supra note 40, 266 Neb. at
553, 667 N.W.2d at 191. See, also, Gaston v. Appleton Elec. Co., 253 Neb.
897, 573 N.W.2d 131 (1998); Roth v. Sarpy Cty. Highway Dept., 253 Neb.
703, 572 N.W.2d 786 (1998).
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be noncontroversial, the employer is subject to the significant
waiting-time penalties in § 48-125. So, employers and insur-
ers have an incentive to investigate all claims and pay non-
controversial claims promptly to avoid a penalty.
Armstrong concedes that the evidence produced at trial
showed the existence of a reasonable controversy. We therefore
affirm the court’s denial of a waiting-time penalty, attorney
fees, and interest based on the State’s failure to pay benefits
within 30 days of notice of Armstrong’s disability.
Mileage Expenses
Armstrong argues that the court “overlooked” some of her
mileage expenses.44 The court received two documents—exhib-
its 22 and 53—in which Armstrong computed the mileage of
trips to various medical providers. Exhibit 22 records mile-
age for trips made between July 28, 2012, and November
8, 2013. Exhibit 53 records trips made from November 8,
2013, to February 7, 2014. The court awarded all of the mile-
age expenses in exhibit 53, but did not mention exhibit 22.
Armstrong requests that we remand the cause so that the court
may consider the mileage in exhibit 22. The State “does not
dispute that the trial [c]ourt overlooked Exhibit 22.”45
[16] Under Neb. Rev. Stat. § 48-120 (Reissue 2010), an
employer is liable for all reasonable medical, surgical, and
hospital expenses required by the nature of the injury which
will help restore the employee to health and employment.
Because § 48-120 makes the employer liable for reason-
able medical and hospital services, we have held that the
employer must also pay the cost of travel incident to and rea-
sonably necessary for obtaining these services.46 This rule is
firmly established.47
44
Brief for appellant at 40.
45
Brief for appellee at 21.
46
Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959);
Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956). See, also,
Hoffart v. Fleming Cos., 10 Neb. Ct. App. 524, 634 N.W.2d 37 (2001).
47
Hoffart v. Fleming Cos., supra note 46.
Nebraska Advance Sheets
ARMSTRONG v. STATE 219
Cite as 290 Neb. 205
We agree that the court overlooked exhibit 22. Exhibits
22 and 53 contain mileage for trips to the same providers for
the same services, such as mileage to and from occupational
therapy. It is not apparent why the court would award mileage
expenses for Armstrong’s occupational therapy on November
13, 2013, documented in exhibit 53, but not her trip to occu-
pational therapy on November 8, 2013, documented in exhibit
22. We therefore direct the court to consider on remand
which of the trips described in exhibit 22, if any, the State
should pay.
CONCLUSION
We affirm the compensation court’s finding that Armstrong
is permanently partially disabled and has suffered a 75-
percent loss of earning capacity. A worker is not, as a mat-
ter of law, totally disabled solely because she is unable to
work full time. We also conclude that the court did not err by
denying Armstrong a waiting-time penalty, attorney fees, and
interest under § 48-125. But we conclude that the court failed
to consider the mileage expenses detailed in exhibit 22. We
therefore remand the cause and direct the court to consider
exhibit 22 and determine the mileage of the trips, if any, the
State should pay.
Affirmed in part, and in part reversed
and remanded with directions.
Heavican, C.J., participating on briefs.