Lewis v. MBC Constr. Co. ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/01/2021 09:10 AM CDT
- 726 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726Allen Michael Lewis, appellee and
cross-appellant, v. MBC Construction
Co., Inc., and Carolina Casualty
Ins. Co., appellants and
cross-appellees.
___ N.W.2d ___
Filed July 16, 2021. No. S-20-728.
1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat.
§ 48-185 (Cum. Supp. 2020), a judgment, order, or award of the com-
pensation 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.
2. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
Appeal from the Workers’ Compensation Court: Julie A.
Martin, Judge. Vacated and remanded with directions.
Daniel P. Lenaghan and Christine E. Westberg Dorn, of
Sodoro, Mooney & Lenaghan, L.L.C., for appellants.
Justin High and Erin N. Fox, of High & Younes, L.L.C., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 727 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726Per Curiam.
NATURE OF CASE
Allen Michael Lewis was injured in the course of his
employment with MBC Construction Co., which injury ulti-
mately resulted in the amputation of his left leg. This case
arises from Lewis’ request for MBC Construction Co. and
Carolina Casualty Ins. Co. (collectively MBC) to build acces-
sible housing for him. The compensation court rejected Lewis’
proposal for a four-bedroom, three-garage accessible house,
but found certain accessibility features reasonable, necessary,
and required due to the nature of Lewis’ injury. It ordered
MBC to modify an existing home or potentially build a unit
to meet Lewis’ accessibility requirements. MBC appeals, and
Lewis cross-appeals. Because of ambiguity in its order, we
conclude that the compensation court’s order did not provide
a meaningful basis for appellate review of its order regarding
alternative accessible housing, and accordingly, we vacate the
order and remand the cause with directions to enter an order
in compliance with Workers’ Comp. Ct. R. of Proc. 11 (2021).
In view of our disposition of the appeal, we do not consider
Lewis’ cross-appeal.
STATEMENT OF FACTS
On May 1, 2015, while Lewis was working for MBC
Construction Co., an autopaving machine rolled on Lewis and
crushed his leg. The leg was ultimately amputated above the
knee. Neither party disputes that the amputation was a conse-
quence of Lewis’ original injury. Lewis now uses a wheelchair,
scooter, and crutches. One of Lewis’ treating physicians, Dr.
Toby Free, testified to Lewis’ challenges using a prosthe-
sis, including edema, vascular damage, and other issues that
affected the healing and fit at the amputation site.
Before and after the injury, Lewis lived with friends, with
family, or in rental homes. The compensation court noted
that most recently, he lived in a two-bedroom apartment with
his sister.
- 728 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726Because of his restrictions, Lewis sought modification of his
rental property from MBC and retained a physician assistant
to evaluate his residence and vehicle for medically neces-
sary modifications to accommodate his injury. Based on this
report from the physician assistant, Dr. Free agreed that Lewis
should have an accessible home. However, before an accessi-
bility solution was implemented, Lewis was evicted from that
rental property.
Lewis sought an estimate from a home builder for an acces-
sible house with four bedrooms—one for himself and each of
his children. The estimate was nearly $400,000. Lewis filed a
motion to compel that would direct MBC to build the acces-
sible house for his use. Lewis submitted evidence that a four-
bedroom accessible house is difficult to find.
Dr. Free opined that “Lewis will need a fully handicap
accessible home with a bathroom on the main floor. His home
needs to be fully wheelchair accessible. He sometimes needs to
use the wheelchair now and I expect he will need to use it more
in the future as he ages.” He opined that Lewis’ “current living
situation is untenable.”
Although MBC claimed it was willing to make modifica-
tions to an existing home, it was not willing to purchase or
construct a home for Lewis. It submitted an affidavit of Scott
Vogt, the chief operating officer of a real estate company,
which affidavit discussed homes in the Omaha, Nebraska, area
meeting Lewis’ requirements. Vogt analyzed the Omaha rental
market and found at least 105 available rental units that would
meet Dr. Free’s requirements, ranging from $515 to $1,100
per month.
The compensation court found that Lewis’ proposed four-
bedroom, three-car-garage house was not reasonable and nec-
essary. However, it also found that Lewis’ injuries limited
his ability to get around his home and take care of activities
of daily living. It noted that the doors in his living quar-
ters are not wide enough, the cabinets are not at the correct
- 729 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726height, and the ground presents tripping hazards documented
in the exhibits.
At the time of the hearing, Lewis resided with family in their
apartment. The court found that modifications to Lewis’ home
are necessary and that “[h]ad it not been for the accident and
injury sustained while employed by MBC Construction [Co.],
[Lewis] would not now need accessible housing.” However,
the compensation court explained that such modifications
could not be completed on the apartment where Lewis was
staying. It analyzed the case law and concluded, “[i]f modi-
fications cannot be done to an existing property, the [court]
reads the statute broadly . . . that would require defendants to
obtain new living quarters for plaintiff that are accessible.” It
ordered MBC to find new living quarters within 45 days that
are accessible.
The compensation court directed MBC to find “an exist-
ing home . . . to which modifications need to be made.” As
an alternative, it directed MBC to provide housing for Lewis
by “either building or purchasing an accessible home for”
him. The order provided that regardless of the eventuality, the
potential housing should include at least 11 specified features
to make it “accessible for [Lewis’] condition”:
1. At least three bedrooms;
2. 36-inch wide doorways throughout the home and at
all entry points and exit points;
3. Either zero entry or a ramp for all entry and exit
points into the structure;
4. Zero entry for the shower;
5. Reinforced shower bench and grab bars sufficient for
his weight;
6. Cut-outs under the sinks in his home so the wheel-
chair can fit underneath;
7. 60 inches between the cabinets so he can move in
and out while opening the cabinets;
8. Reinforced grab bars around the toilets and in the
laundry room for safety;
- 730 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 7269. Nonslip flooring in the bathroom, laundry room,
and kitchen;
10. An oversized commode; and
11. Electrical outlets in the garage, if there is one, for
charging his scooter and in the bedroom for charging his
prosthetic leg.
MBC appeals, and Lewis cross-appeals.
ASSIGNMENTS OF ERROR
As its sole assignment of error, MBC claims that the com-
pensation court erred when it directed MBC “to purchase real
property for the benefit of . . . Lewis.”
On cross-appeal, Lewis claims that the Workers’ Compen­sa­
tion Court erred when it found his proposed new construction
home was unreasonable and unnecessary. He also claims it
was clearly wrong for the compensation court not to require
garage space in its list of required features in its adaptive hous-
ing award. In view of our disposition of the appeal, we do not
reach the cross-appeal.
STANDARD OF REVIEW
[1] Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), 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. See Boring v. Zoetis LLC, ante p. 270, 959
N.W.2d 795 (2021).
[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. Melton v. City of Holdrege, ante p. 385, 960 N.W.2d
298 (2021).
- 731 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726ANALYSIS
Both the appeal and cross-appeal taken in this case pertain
to an employer’s responsibility for an injured worker’s home
to be made accessible for the worker’s work-related injuries.
As an initial matter, we set forth our statutory and case law on
Neb. Rev. Stat. § 48-120 (Cum. Supp. 2020) as it applies to
housing accommodations. Section 48-120(1)(a) provides:
The employer is liable for all reasonable medical, surgi-
cal, and hospital services, including plastic surgery or
reconstructive surgery but not cosmetic surgery when the
injury has caused disfigurement, appliances, supplies,
prosthetic devices, and medicines as and when needed,
which are required by the nature of the injury and which
will relieve pain or promote and hasten the employee’s
restoration to health and employment, and includes dam-
age to or destruction of artificial members, dental appli-
ances, teeth, hearing instruments, and eyeglasses, but,
in the case of dental appliances, hearing instruments, or
eyeglasses, only if such damage or destruction resulted
from an accident which also caused personal injury enti-
tling the employee to compensation therefor for disability
or treatment, subject to the approval of and regulation
by the Nebraska Workers’ Compensation Court, not to
exceed the regular charge made for such service in simi-
lar cases.
Nebraska courts have previously held that modifications to
an injured employee’s home can be medical expenses under
the appliances or supplies categories of § 48-120(1)(a) when
the modifications are “required by the nature of the injury”
and if the modifications “relieve pain or promote and hasten
the employee’s restoration to health and employment.” See,
Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398(2000); Koterzina v. Copple Chevrolet, 1 Neb. App. 1000,
510 N.W.2d 467 (1993). We note that the first sentence of
§ 48-120 provides a list of examples of reasonable services and
items preceded by the word “including.” We have previously
- 732 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726stated that the word “include,” as used in a statute, connotes
that the provided list of components is not exhaustive and that
there are other items includable that are not specifically enu-
merated. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d
135 (2020); See, also, Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 132 (2012). As
its sole assignment of error, MBC contends that the compensa-
tion court ordered it to purchase real property for the benefit of
Lewis, which MBC understands as a directive that it build or
purchase an accessible house for Lewis, and that this directive
exceeded the compensation court’s statutory authority under
§ 48-120. Lewis claims that an employer is potentially liable
to provide an accessible home for the benefit of an injured
worker. See, e.g., Squeo v. Comfort Control Corp., 99 N.J. 588,
494 A.2d 313 (1985); Peace River Elec. Corp. v. Choate, 417
So. 2d 831 (Fla. App. 1982); Arce v. Mountain Wood Forestry,
Inc., No. COA09-490, 2010 WL 10962 (N.C. App. Jan. 5,
2010) (unpublished disposition listed in table at 201 N.C. App.
726 (2010)). As we read the compensation court’s order, we
agree it is plausible MBC would potentially be required to
build or purchase real property thereunder. In this regard, the
order states at one point that MBC “shall be responsible for
either building or purchasing an accessible home for [Lewis].”
However, the evidence relied on by the compensation court
showed alternative housing arrangements that could meet
Lewis’ needs, and other portions of the order indicate that the
compensation court believed MBC’s obligation to Lewis could
be met through a lease arrangement or by modifying rental
property. The compensation court’s failure to clearly direct the
parties’ future action precludes meaningful appellate review,
and we vacate the order and remand the cause with directions
to enter an order complying with the requirements of Rule 11
of the compensation court rules of procedure.
Rule 11 provides, in relevant part, that “[d]ecisions of
the court shall provide the basis for a meaningful appellate
review.” Rule 11 ensures that compensation court orders are
- 733 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726sufficiently clear in addressing the parties’ requested relief so
that an appellate court can review the evidence relied upon
by the trial judge in support of his or her findings. It requires
“explicit findings of fact and conclusions of law so that all
interested parties and a reviewing court can determine the legal
and factual basis upon which a decision is made.” Torres v.
Aulick Leasing, 258 Neb. 859, 863, 606 N.W.2d 98, 102 (2000).
It also requires a record that elucidates the factors contributing
to the lower court’s decision. Hynes v. Good Samaritan Hosp.,
285 Neb. 985, 830 N.W.2d 499 (2013).
In several cases where a compensation court made ambig­
uous or contradictory findings, we found that meaningful
appellate review was precluded, even though the failure was
not a jurisdictional defect. Dawes v. Wittrock Sandblasting &
Painting, 266 Neb. 526, 667 N.W.2d 167 (2003), disapproved
on other grounds, Kimminau v. Uribe Refuse Serv., 270 Neb.
682, 707 N.W.2d 229 (2005); Owen v. American Hydraulics,
254 Neb. 685, 578 N.W.2d 57 (1998). The order before us
is similarly ambiguous and contradictory. In its order, the
compensation court acknowledged that MBC offered several
alternatives which MBC was apparently willing to provide for
Lewis. The court observed: “It did not seem to the Court that
[MBC] so much objected to providing an accessible home, just
that what [Lewis] proposed was not reasonable. . . . [MBC has]
presented evidence that other alternatives are available that
would meet [Lewis’] needs.”
The order cited the affidavit of Vogt with respect to available
properties in the Omaha area. The properties described therein
included a range of options at many price points, included both
rental homes and houses for sale, and included homes that
were already accessible and homes needing modification to be
accessible. The court continued:
If an existing home is found for [Lewis] to which modi-
fications need to be made, [MBC] must also see that
plans are drawn up for any necessary modifications along
with a timetable for completion of those modifications
- 734 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726and those plans must be presented to [Lewis] within this
45-day deadline. The Court realizes the deadline is tight,
but there have been numerous delays already on this issue,
and [Lewis] should not be the one to suffer for them.
However, the compensation court’s order failed to clearly
address whether and which of the housing options was reason-
able and necessary, or the extent of MBC’s specific economic
obligations, such as insurance, taxes, and rental or mortgage
payments, once appropriate housing for Lewis is identified.
Compare, Squeo v. Comfort Control Corp., 99 N.J. 588, 494
A.2d 313 (1985) (addressing construction costs, maintenance,
capital repairs, insurance, and taxation); Arce v. Mountain
Wood Forestry, Inc., No. COA09-490, 2010 WL 10962 (N.C.
App. Jan. 5, 2010) (unpublished disposition listed in table at
201 N.C. App. 726 (2010)) (dividing cost of housing between
employer and worker).
We have previously reversed orders and remanded causes
under rule 11 when the order of the compensation court was
unclear. See, e.g., Rogers v. Jack’s Supper Club, 304 Neb. 605,
935 N.W.2d 754 (2019); Owen v. American Hydraulics, supra;Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424(1996). In a case where the order was ambiguous and contra-
dictory, we said that “[n]either party should prevail on the basis
of an ambiguity.” Owen v. American Hydraulics, 254 Neb. at
695, 578 N.W.2d at 64. Compare Lovelace v. City of Lincoln,
283 Neb. 12, 809 N.W.2d 505 (2012) (finding order was not
confusing and complied with rule 11).
In the instant case, the order is confusing and the undertak-
ings of each party are unclear. We vacate the order of the com-
pensation court and remand the cause for further proceedings.
On remand, the compensation court shall, inter alia, enter an
order based on the existing record, clarifying which accessible
alternative housing options should be pursued and in which
order, and it should clarify in findings MBC’s economic obli-
gations under the Nebraska Workers’ Compensation Act with
respect to the housing ultimately obtained.
- 735 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726CONCLUSION
The compensation court erred when it issued a decision
that did not comply with rule 11, and we vacate the order and
remand the cause with directions to enter an order in compli-
ance with rule 11 as described in our opinion above. In so
doing, we express no opinion on an employer’s potential liabil-
ity, if any, to construct or purchase adaptive housing under
§ 48-120(1)(a), and we find it unnecessary to consider Lewis’
cross-appeal.
Vacated and remanded with directions.
Stacy, J., concurring.
I agree with the majority’s conclusion that the order of the
Workers’ Compensation Court is too ambiguous for meaning-
ful appellate review and therefore must be vacated. I write
separately to suggest that any expansion of our holding in
Miller v. E.M.C. Ins. Cos. 1 presents issues of public policy for
the Legislature.
In Miller, the injured worker used a wheelchair and we
affirmed an order of the Workers’ Compensation Court direct-
ing the employer’s insurer to pay for the modifications needed
to make the worker’s home wheelchair accessible. We found
that Neb. Rev. Stat. § 48-120(1) (Reissue 1993) provided the
necessary authority for such an order, reasoning:
[M]odifications to an injured employee’s home [can] be
considered medical expenses under the appliances or sup-
plies categories if the modifications are “required by the
nature of the injury,” and if the modifications “relieve
pain or promote and hasten the employees’ restoration to
health and employment.” 2
Miller found the first requirement was satisfied by evidence
that doctors had recommended certain modifications to the
employee’s home to allow him to access and use the home
1
Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).
2
Id. at 451, 610 N.W.2d at 412.
- 736 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726from his wheelchair. And the second requirement was satisfied
by evidence that the employee’s “pain [was] caused by the loss
of independence to function and to enter and move about his
own home.” 3 The Nebraska Court of Appeals used similar rea-
soning in Koterzina v. Copple Chevrolet 4 to affirm a Workers’
Compensation Court order directing the insurer to pay $18,376
in construction costs to modify the home of an injured worker
who used a wheelchair.
In the 20-plus years since this court’s decision in Miller, the
relevant provisions of § 48-120(1) on which that holding was
based have not been amended by the Legislature. And although
the Legislature has defined some of the terms appearing in
§ 48-120, 5 it has not defined either “appliances” or “supplies”
for purposes of that statute. Generally, when a statute has been
judicially construed and that construction has not evoked an
amendment, it is presumed the Legislature has acquiesced in
the court’s determination of the Legislature’s intent. 6
But the primary question raised by the parties in this appeal
is not whether the employer or its insurer can be ordered to
pay for modifications to Lewis’ residence to make it accessible
after his work-related injury. The parties agree that question
was answered in the affirmative by Miller. Rather, the question
here appears to be the extent of the employer’s responsibility
for modifications under Miller and Koterzina when the injured
worker does not have housing that can be modified.
We do not reach that question in this appeal, because we
are not able to discern what the trial court has ordered in that
regard. Has the court ordered the employer or its insurer to
purchase or custom build an entire home that is accessible?
3
Id. at 452, 610 N.W.2d at 412.
4
Koterzina v. Copple Chevrolet, 1 Neb. App. 1000, 510 N.W.2d 467 (1993).
5
See Neb. Rev. Stat. § 48-120.01 (Reissue 2010) (defining terms “plastic
surgery” and “reconstructive surgery” for purposes of § 48-120).
6
Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538, 955 N.W.2d 707(2021).
- 737 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
LEWIS v. MBC CONSTR. CO.
Cite as 309 Neb. 726If so, how are the associated costs to be allocated between the
employer and the employee to ensure the employer pays for the
necessary modifications under Miller and Koterzina, but not
for the ordinary features of the home?
It is a familiar proposition of law that the Nebraska Workers’
Compensation Court, as a statutorily created court, has only
such authority as has been conferred upon it by statute, and its
power cannot extend beyond that expressed in the statute. 7 I see
nothing in the plain text of § 48-120, or in our current case law,
that would support expanding the definition of medical “appli-
ances” or “supplies” to include an entire home. Nor, in my
opinion, are the courts the proper place to debate the ­various
public policy concerns implicated by such an expansion.
So while I agree with the majority that the order of the
workers’ compensation court is too ambiguous and confusing
for meaningful appellate review, I respectfully suggest that any
expansion of the rule announced in Miller and Koterzina impli-
cates important public policy questions about the compensabil-
ity of accessible housing for injured workers and is something
properly left to the Legislature.
Funke, J., joins in this concurrence.
7
Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).