Canas-Luong v. Americold Realty Trust ( 2015 )

Decisions of the Nebraska Court of Appeals
CANAS-LUONG v. AMERICOLD REALTY TRUST 999
Cite as 22 Neb. App. 999the issue before the trial court. See Clark v. Tyrrell, 16 Neb.
App. 692, 750 N.W.2d 364 (2008). TJ did not challenge
the constitutionality of § 77-5016 until the present appeal.
Additionally, we note that TJ failed to comply with the notice
provision for challenging the constitutionality of a statute as
set forth in Neb. Ct. R. § 2-109(E) (rev. 2014). Because this
issue was not raised before TERC, it is not properly before
this court and we will not address it further on appeal.
CONCLUSION
We conclude that TJ failed to prove by clear and convincing
evidence that the Board’s valuation was arbitrary and unrea-
sonable. Accordingly, we affirm TERC’s decision.
Affirmed.
Elizabeth S. Canas-Luong, appellee, v.
Americold R ealty Trust, appellant.
___ N.W.2d ___
Filed June 23, 2015. No. A-14-751.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ 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.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court, the findings of fact of the trial
judge will not be disturbed on appeal unless clearly wrong.
3. Workers’ Compensation: Time. A claimant has not reached maximum medical
improvement until all the injuries resulting from an accident have reached maxi-
mum medical healing.
4. ____: ____. The appropriate time to award permanent disability benefits is after
the worker reaches maximum medical improvement.
5. Workers’ Compensation. The Nebraska Workers’ Compensation Act authorizes
an award of permanent disability, either partial or total, as a means of compensat-
ing the injured worker for the loss of earning capacity.
6. ____. When a whole body injury is the result of a scheduled member injury,
the member injury should be considered in the assessment of the whole body
Decisions of the Nebraska Court of Appeals
1000 22 NEBRASKA APPELLATE REPORTS
impairment; and under such circumstances, the trial court should not enter
a separate award for the member injury in addition to the award for loss of
earning capacity because to allow both awards creates an impermissible dou-
ble recovery.
Appeal from the Workers’ Compensation Court: Michael K.
High, Judge. Affirmed in part, and in part reversed.
Jon S. Reid, of Lamson, Dugan & Murray, L.L.P., for
appellant.
Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C.,
L.L.O., for appellee.
Inbody, Pirtle, and Bishop, Judges.
Bishop, Judge.
Elizabeth S. Canas-Luong was shot 11 times by a coworker
while working for Americold Realty Trust (Americold) in
Crete, Saline County, Nebraska, on September 22, 2010. She
sustained injuries to her right arm, left chest wall, lower
abdomen, back, spleen, colon, liver, right kidney, and abdo-
men. She also suffered from psychological problems due to
posttraumatic stress syndrome and depression. The Workers’
Compensation Court found that Canas-Luong had reached
maximum medical improvement (MMI) with respect to the
physical injuries to her body, but that she had not yet reached
MMI for her psychological injuries. The compensation court
ordered temporary total disability from the date of the injuries
through the date of trial and until such time as she reaches
MMI for the psychological injuries. The compensation court
also awarded Canas-Luong a 39-percent permanent partial
disability for the impairment to her right upper extremity.
The compensation court further ordered that after reaching
MMI, Canas-Luong was entitled to be evaluated by a voca-
tional rehabilitation counselor both for a loss of earning power
evaluation and for help to find suitable work. Americold was
ordered to continue to pay for future medical and hospital care
as may be reasonably necessary, and Americold was given a
credit for payments already made to Canas-Luong for indem-
nity benefits and medical bills. Americold appealed. Because
Decisions of the Nebraska Court of Appeals
CANAS-LUONG v. AMERICOLD REALTY TRUST 1001
Cite as 22 Neb. App. 999Canas-Luong has not reached MMI with respect to all of her
injuries and was awarded ongoing temporary total disability
benefits, we find that the compensation court erred by prema-
turely awarding her permanent partial disability for her right
upper extremity. We therefore reverse that portion of the com-
pensation court’s award.
PROCEDURAL BACKGROUND
On October 4, 2012, Canas-Luong petitioned for workers’
compensation benefits for the injuries she sustained. Americold
contested the extent and nature of Canas-Luong’s injuries.
At the time of trial on October 17, 2013, the parties stipu-
lated to the following: (1) Canas-Luong sustained an accident
arising out of and in the course of employment with Americold
on or about September 22, 2010, which resulted in injury to
her right arm, left chest wall, lower abdomen, back, spleen,
colon, liver, right kidney, and abdomen; (2) the accident
occurred in Crete; (3) Canas-Luong gave timely notice of the
accident; (4) Canas-Luong is entitled to benefits under the
Nebraska Workers’ Compensation Act; (5) on the date of the
accident, Canas-Luong was earning an average weekly wage
of $596.65 for purposes of temporary disability and perma-
nent disability; (6) all of the medical expenses incurred as of
the date of trial that were reasonably related to the accident
and injury of September 22 had been paid or would be paid
as set forth in exhibit 37; and (7) pursuant to Neb. Rev. Stat.
§ 48-120 (Cum. Supp. 2014), Canas-Luong is entitled to future
medical care that is reasonable and necessary as a result of the
accident and injury of September 22.
Canas-Luong testified at trial. Additionally, numerous exhib-
its (including medical records, vocational assessments, and
loss of earning capacity analyses with multiple scenarios) were
offered and received into evidence.
In its award filed on July 25, 2014, the compensation court
found that (1) Canas-Luong was temporarily totally disabled
from and including September 22, 2010, to and including the
date of trial, a period of 1602⁄ 7 weeks; (2) although Canas-
Luong had attained MMI with respect to the physical inju-
ries to her body, she was not at MMI for the psychological
Decisions of the Nebraska Court of Appeals
1002 22 NEBRASKA APPELLATE REPORTS
injuries she suffered in the accident and therefore continued
to be temporarily totally disabled; (3) the temporary total
disability rate was $401.91 per week; (4) Canas-Luong was
entitled to $401.91 per week for 1602⁄ 7 weeks of temporary
total disability, and such payments shall continue there­after
for so long as Canas-Luong continues to be temporarily
totally disabled; (5) once Canas-Luong reaches MMI with
respect to all of her injuries, she is entitled to be evaluated by
a vocational rehabilitation specialist both for determination
of her present disability measured by loss of earning power
and for help to find work that is suitable for her; (6) Canas-
Luong was entitled to payment of $401.91 per week for 87.75
weeks of permanent partial disability for a 39-percent impair-
ment to her right upper extremity; (7) Americold was entitled
to a credit for payment to Canas-Luong for the indemnity
benefits shown in exhibit 36 and for payment of all medical
expenses incurred in the case as shown in exhibit 37; and (8)
Americold was to provide and pay for such future medical
and hospital care as may be reasonably necessary as a result
of the accident and injury.
Americold timely appeals from the award.
ASSIGNMENTS OF ERROR
Americold assigns as error that the compensation court (1)
did not provide a decision with a meaningful basis for appel-
late review, (2) ordered Americold to pay Canas-Luong per-
manent partial disability benefits for her scheduled member
injury to her right upper extremity without considering the
impact of the scheduled member upon Canas-Luong’s employ-
ability, and (3) awarded an impermissible double recovery
to Canas-Luong when it ordered that Canas-Luong was to
receive a separate award for a scheduled member injury and
for a body as a whole injury, both of which occurred in the
same accident.
STANDARD OF REVIEW
[1,2] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
Decisions of the Nebraska Court of Appeals
CANAS-LUONG v. AMERICOLD REALTY TRUST 1003
Cite as 22 Neb. App. 999without 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.
Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117(2014). In determining whether to affirm, modify, reverse, or
set aside a judgment of the Workers’ Compensation Court,
the findings of fact of the trial judge will not be disturbed on
appeal unless clearly wrong. Id.ANALYSIS
Americold’s assignments of error and argument revolve
around how to handle awarding compensation when a sched-
uled member injury and a body as a whole injury arise from
the same accident. Americold suggests that the compensation
court’s permanent partial disability award of 39 percent for
Canas-Luong’s scheduled member injury (right upper extrem-
ity) and its order for a future separate loss of earning capacity
for her body as a whole injury will result in an impermissible
double recovery. Americold suggests that the facts in this case
are similar to those in Bishop v. Specialty Fabricating Co.,
277 Neb. 171, 760 N.W.2d 352 (2009), which stands for the
proposition that when a whole body injury is the result of a
scheduled member injury and the member injury was con-
sidered in the assessment of the whole body impairment, a
separate award for the member injury should not be entered.
However, the application of Bishop, supra, to this case can-
not be determined until such time as Canas-Luong is at MMI
for all of her injuries, as will be discussed further later in
our analysis.
Initially, we note that contrary to Americold’s first assign-
ment of error, the compensation court did provide a decision
with a meaningful basis for appellate review. The details
of that opinion were set forth in the background section of
this opinion.
[3-5] The problem in the compensation court’s order is not
a lack of meaningful basis for review or that it is ambiguous;
rather, the problem lies in its decision to award a permanent
Decisions of the Nebraska Court of Appeals
1004 22 NEBRASKA APPELLATE REPORTS
partial disability benefit when Canas-Luong was not yet at
MMI for all of her injuries. Although she had reached maxi-
mum medical recovery for her physical injuries, she had not
yet reached that point with her psychological injuries. “[A]
claimant has not reached [MMI] until all the injuries resulting
from an accident have reached maximum medical healing.”
Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 765,
707 N.W.2d 232, 239 (2005). The appropriate time to award
permanent disability benefits is after the worker reaches MMI.
Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313(2001). The Nebraska Workers’ Compensation Act authorizes
an award of permanent disability, either partial or total, as
a means of compensating the injured worker for the loss of
earning capacity. Foote, supra. Accordingly, the trial court
was correct when it stated that loss of earning capacity would
be determined when Canas-Luong reaches MMI. However,
the trial court erred in awarding Canas-Luong payment for a
39-percent permanent impairment to her right upper extremity
before she reached MMI for all of her injuries. This permanent
partial scheduled member award was premature, since the
compensation court determined that Canas-Luong was not yet
at MMI for her psychological injury and was entitled to ongo-
ing temporary total disability benefits.
In Rodriguez, supra, Santana Rodriguez suffered injuries
to his neck, shoulder, knees, and back, in addition to severe
depression, as a result of a work-related accident. The trial
judge found that Rodriguez had reached MMI with respect to
his neck, back, shoulder, and psychological injuries, but that he
had not reached MMI with respect to his bilateral knee inju-
ries. The trial judge determined that Rodriguez had suffered
no permanent disability as a result of his neck, back, shoulder,
and psychological injuries. Therefore, the single judge entered
an award maintaining temporary total disability benefits for the
injury to Rodriguez’ knees, but denying permanent disability
benefits for the other injuries. The Workers’ Compensation
Court review panel affirmed. The Nebraska Supreme Court
reversed, finding that the trial court erred in concluding that
Rodriguez had reached MMI and in making a determination as
to Rodriguez’ permanent disability.
Decisions of the Nebraska Court of Appeals
CANAS-LUONG v. AMERICOLD REALTY TRUST 1005
Cite as 22 Neb. App. 999The Nebraska Supreme Court noted that the trial court’s
reasoning (that Rodriguez had reached MMI with respect to
his neck, back, shoulder, and psychological injuries, but that
he had not reached MMI with respect to his bilateral knee
injuries) would result in a claimant’s being potentially entitled
to simultaneous permanent and temporary disability benefits
resulting from the same accident, “a result that is inconsist­
ent with established precedent.” Rodriguez, 270 Neb. at 763,
707 N.W.2d at 238. The Supreme Court stated that “a given
condition cannot at one and the same time be both temporary
and permanent.” Id. The Supreme Court held that MMI, for
purposes of deciding when a claimant’s disability has become
permanent, is determined by reference to the date on which
all of the claimant’s injuries from the accident have reached
maximum recovery. Rodriguez, supra.The Rodriguez court noted that “it may be difficult, if not
impossible, to ascertain a claimant’s true permanent disability
when not all of the claimant’s disabling injuries have reached
maximum healing.” 270 Neb. at 763, 707 N.W.2d at 238. The
court cited to Zavala v. ConAgra Beef Co., 265 Neb. 188, 655
N.W.2d 692 (2003), for the principle that determination of a
claimant’s permanent disability may require the court to con-
sider the effect of different injuries that occurred in the same
accident. The court said:
As we explained in Zavala, 265 Neb. at 199-200, 655
N.W.2d at 702, “when assessing the loss of earning
capacity for a back injury, it may not be reasonable
to ignore the impact that the loss of a leg would have
upon the loss of earning capacity when both injuries
occurred in the same accident. The back injury does not
increase the disability to the scheduled member, but the
impact of the scheduled member injury should be consid-
ered when assessing the loss of earning capacity of the
employee. The failure to do so would ignore the realities
of the situation.”
Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 764,
707 N.W.2d 232, 238 (2005). And “‘[w]hen multiple condi-
tions prevent a claimant’s return to the former position of
employment, it is imperative that a permanency determination
Decisions of the Nebraska Court of Appeals
1006 22 NEBRASKA APPELLATE REPORTS
include consideration of all allowed conditions.’” Id. at 764,
707 N.W.2d at 239 (quoting State ex rel. Tilley v. Indus.
Comm., 78 Ohio St. 3d 524, 678 N.E.2d 1392 (1997)). The
Nebraska Supreme Court held that “a claimant has not reached
[MMI] until all the injuries resulting from an accident have
reached maximum medical healing.” Rodriguez, 270 Neb. at
765, 707 N.W.2d at 239. The Supreme Court stated that the
trial court erred in concluding that Rodriguez had reached
MMI and that the trial court’s determination regarding perma-
nent disability benefits was premature.
Similarly, in our case, because Canas-Luong had not reached
MMI with respect to all of her injuries, the trial court erred in
determining that Canas-Luong had reached MMI with respect
to the physical injuries to her body and in finding that she is
entitled to payment for a 39-percent permanent impairment
to her right upper extremity. See Rodriguez, supra (there
is no provision in Nebraska law for partial MMI). Canas-
Luong’s physical injuries may have reached maximum medical
recovery, but she will not reach MMI until her psychological
injuries have also reached maximum medical recovery. By
awarding payment for a 39-percent permanent partial disabil-
ity to her right upper extremity and continuing temporary total
disability payments, the trial court gave Canas-Luong simul-
taneous permanent and temporary disability benefits result-
ing from the same accident, “a result that is inconsistent with
established precedent.” See Rodriguez, 270 Neb. at 763, 707
N.W.2d at 238.
[6] It is unknown at this time whether Canas-Luong’s
permanent impairment to her right upper extremity should
be factored into the loss of earning capacity analysis or
whether a separate scheduled member award may be appropri-
ate. In Bishop v. Specialty Fabricating Co., 277 Neb. 171, 760
N.W.2d 352 (2009), and Madlock v. Square D Co., 269 Neb.
675, 695 N.W.2d 412 (2005), the Nebraska Supreme Court
held that when a whole body injury is the result of a sched-
uled member injury, the member injury should be considered
in the assessment of the whole body impairment; and that
under such circumstances, the trial court should not enter a
separate award for the member injury in addition to the award
Decisionsof the Nebraska Court of Appeals
CANAS-LUONG v. AMERICOLD REALTY TRUST 1007
Cite as 22 Neb. App. 999for loss of earning capacity because to allow both awards
creates an impermissible double recovery. But, as previously
noted, whether Canas-Luong’s right upper extremity impair-
ment should be considered in her loss of earning capacity
cannot be determined until Canas-Luong reaches MMI for all
of her injuries and a loss of earning capacity analysis is per-
formed; and at that point, all injuries and their effects on loss
of earning capacity can be considered at one time. See Foote
v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001)
(appropriate time to award permanent disability benefits is
after worker reaches MMI). Accordingly, we reverse the trial
court’s finding that Canas-Luong is entitled to payment for
a 39-percent permanent partial disability to her right upper
extremity, as such determination regarding permanent disabil-
ity benefits was premature.
CONCLUSION
Because Canas-Luong has not reached MMI with respect
to all of her injuries, we find that the trial court erred in find-
ing that she is entitled to payment for a 39-percent permanent
partial disability to her right upper extremity. We therefore
reverse that portion of the trial court’s award. We affirm the
remainder of the trial court’s award as Americold claims no
error with regard to the remainder of the award.
Affirmed in part, and in part reversed.