Picard v. P & C Group 1 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/18/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
Halina Picard, appellee and cross-appellant,
v. P & C Group 1, Inc., doing business as
Camaco, LLC, and Hartford Fire
Insurance Company, appellants
and cross-appellees.
___ N.W.2d ___
Filed July 2, 2020. No. S-18-207.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. 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 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.
3. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures:
Words and Phrases. Whether a reasonable controversy exists under
Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) is a question of fact.
4. Workers’ Compensation: Appeal and Error. 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. In workers’ compensation cases, an appellate court deter-
mines questions of law.
5. Workers’ Compensation. A determination as to whether an injured
worker has had a loss of earning power is a question of fact.
6. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
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306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
7. Rules of the Supreme Court: Appeal and Error. In order to perfect
a cross-appeal, an appellee need comply only with the rules of the
Nebraska Supreme Court.
8. ____: ____. A party’s failure to file a cross-petition for further review
does not preclude the party from cross-appealing because a cross-appeal
on further review is properly perfected by complying with court rules.
9. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures:
Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) authorizes a
50-percent penalty payment for waiting time involving delinquent pay-
ment of compensation and an attorney fee, where there is no reasonable
controversy regarding an employee’s claim for workers’ compensation.
10. Workers’ Compensation: Attorney Fees: Words and Phrases. A “rea-
sonable controversy” for the purpose of Neb. Rev. Stat. § 48-125
(Cum. Supp. 2016) 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 con-
clusions affect allowance or rejection of an employee’s claim, in whole
or in part.
11. Workers’ Compensation. The issue of apportionment arises when a
compensable loss involves successive injuries. When two or more inju-
ries combine, the effect of the injuries together may result in a more
severe disability than the injuries’ scheduled allowances.
12. Workers’ Compensation: Statutes. Statutes may permit apportionment
(1) between successive employers or insurance carriers, when prior inju-
ries are traceable; (2) between an employer and the employee, when a
personal preexisting disability contributes to the resulting disability; and
(3) between an employer and a Second Injury Fund, when the preexist-
ing disability is covered by the fund.
13. Workers’ Compensation: Statutes: Liability. Absent an apportion-
ment statute, the general rule is that an employer takes the employee as
the employer finds him or her, and the employer is liable for the entire
resulting disability. This is known as the full-responsibility rule.
14. Workers’ Compensation. Neb. Rev. Stat. § 48-121 (Reissue 2010)
provides compensation for three categories of job-related disabilities:
subsection (1) sets the amount of compensation for total disability;
subsection (2) sets the amount of compensation for partial disability,
except in cases covered by subsection (3); and subsection (3) sets out
“schedule” injuries to specified parts of the body with compensation
established therefor.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
15. ____. Pursuant to Neb. Rev. Stat. § 48-121(2) (Reissue 2010), perma-
nent partial disability benefits are measured not by loss of bodily func-
tion, but by reduction in or loss of earning power or employability.
16. Workers’ Compensation: Words and Phrases. Earning power, as used
in Neb. Rev. Stat. § 48-121(2) (Reissue 2010), is not synonymous with
wages, but 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.
17. Workers’ Compensation: Appeal and Error. With respect to questions
of law in workers’ compensation cases, an appellate court is obligated to
make its own determination.
18. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Petition for further review from the Court of Appeals,
Riedmann, Bishop, and Welch, Judges, on appeal thereto
from the Workers’ Compensation Court, Julie A. Martin,
Judge. Judgment of Court of Appeals affirmed in part, and in
part reversed and remanded with directions.
Jessica R. Voelker, of Law Office of Steven G. Piland, and
Jarrod D. Reece and Bryan S. Hatch, of Likes Meyerson Hatch,
L.L.C., for appellants.
Lee S. Loudon and Joseph A. Huckleberry, of Law Office of
Lee S. Loudon, P.C., L.L.O., for appellee.
Todd D. Bennett, of Rehm, Bennett & Moore, for amicus
curiae Nebraska Association of Trial Attorneys.
Dallas D. Jones, David A. Dudley, Jennifer S. Caswell,
Thomas B. Shires, and Jenna M. Christensen, of Baylor
Evnen, L.L.P., for amicus curiae Nebraskans for Workers’
Compensation Equity and Fairness et al.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
Heavican, C.J.
INTRODUCTION
This case involves two workers’ compensation awards based
on successive whole body injuries. P & C Group 1, Inc.,
doing business as Camaco, LLC, and Hartford Fire Insurance
Company, P & C Group 1’s insurer (collectively P & C), peti-
tioned this court for further review of the Nebraska Court of
Appeals’ affirmance of the Nebraska Workers’ Compensation
Court’s awards for injuries suffered by Halina Picard in two
separate accidents. We granted further review in order to
determine whether Nebraska law permits the apportionment
of workers’ compensation awards outside of Neb. Rev. Stat.
§ 48-128 (Reissue 2010). On further review, we affirm in part,
and in part reverse and remand with directions.
BACKGROUND
Picard has been employed by P & C Group 1 as a produc-
tion worker since 1989. In April 2012, Dr. Jeffrey Tiedeman
diagnosed Picard with bilateral carpal tunnel syndrome after
Picard was injured at work. Dr. Tiedeman performed bilateral
carpal tunnel release surgery on Picard’s wrists. After con-
cluding Picard had reached maximum medical improvement
with a 10-percent permanent partial impairment of each hand,
Dr. Tiedeman released Picard back to work with a permanent
restriction of lifting no more than 5 pounds. Dr. Tiedeman
also suggested Picard should only occasionally do work above
shoulder level. P & C paid temporary total disability bene-
fits, permanent partial disability benefits, and Picard’s medical
expenses for the 2012 accident.
In 2015, Picard was working in a different position at P & C
Group 1 that accommodated her restrictions. While bending
over to pick up production parts, Picard experienced severe
back pain and was later diagnosed by Dr. Geoffrey McCullen
to have a herniated disk. Dr. McCullen performed a discec-
tomy operation on Picard’s spine and eventually determined
that Picard could return to her position at P & C Group 1 with
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
the following permanent restrictions: no bending to the floor;
only occasional bending, squatting, or twisting; and no lifting
greater than 10 pounds. In doing so, Dr. McCullen articulated:
“The restrictions above are for the spine,” not the hands. Dr.
McCullen concluded that Picard had suffered a 13-percent
impairment of the whole body.
After the 2015 surgery, Picard returned to work at P & C
Group 1 in the same position she held prior to her back injury,
and she was able to perform her assigned job without addi-
tional accommodations. At the time of trial, Picard remained
employed by P & C Group 1 in the same position, and her
hourly rate of pay was greater than it had been prior to the
2015 injury.
In January 2016, Picard filed claims against P & C relating
to her 2012 and 2015 injuries. The cases were consolidated
by the Nebraska Workers’ Compensation Court. A stipulated
trial was held to determine whether (1) Picard suffered any
loss of earning power as a result of the 2015 injury; (2) P & C
was entitled to apportion any loss of earning power benefits
attributable to Picard’s 2012 injury toward any benefits that
may be due and owing for loss of earning power for the 2015
injury; and (3) Picard was entitled to penalties, attorney fees,
and interest for P & C’s failure to pay any permanent disabil-
ity benefits.
Based on Picard’s permanent restrictions given by Dr.
Tiedeman, court-appointed vocational counselor Kim Rhen
opined that Picard had sustained a 60-percent loss of earning
capacity as a result of the 2012 injury. Rhen determined that
the 2012 restrictions would have resulted in a 100-percent
loss of access to available jobs for Picard. However, recog-
nizing the fact that Picard remains competitively employed
by P & C in a full-time position that accommodates her
disability and the fact that P & C would likely continue to
employ her, Rhen estimated the loss of earning capacity from
the injury to Picard’s hands to be 60 percent. As to the 2015
injury, Rhen determined that Picard was employable after the
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PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
low-back injury, but opined that Picard had sustained a 50- to
55-percent loss of earnings as a result.
Following trial, the compensation court determined Picard
had not been adequately compensated for the 2012 injury under
Neb. Rev. Stat. § 48-121(3) (Reissue 2010), which provides, in
relevant part:
If, in the compensation court’s discretion, compensa-
tion benefits payable for a loss or loss of use of more than
one member or parts of more than one member set forth
in this subdivision, resulting from the same accident or
illness, do not adequately compensate the employee for
such loss or loss of use and such loss or loss of use results
in at least a thirty percent loss of earning capacity, the
compensation court shall, upon request of the employee,
determine the employee’s loss of earning capacity con-
sistent with the process for such determination under
subdivision (1) or (2) of this section, and in such a case
the employee shall not be entitled to compensation under
this subdivision.
Contrary to the opinion offered by Rhen, the court made its
own factual finding that Picard suffered a 75-percent loss of
earning power as a result of the 2012 injury to her hands. The
compensation court further found that (1) Picard was entitled
to an award for a whole body injury based on the 2012 carpal
tunnel syndrome, (2) Picard was entitled to a separate whole
body injury award for a 55-percent loss of earning capacity
based on the 2015 back injury, (3) apportionment was not
appropriate because Picard’s injuries were to different parts of
her body and she still would have sustained loss of earnings
for the 2015 back injury even if she had not sustained the 2012
carpal tunnel injuries, and (4) Picard was entitled to attor-
ney fees and penalties under Neb. Rev. Stat. § 48-125 (Cum.
Supp. 2016).
P & C appealed and assigned as error that the compensa-
tion court erred in (1) finding that apportionment did not
apply, (2) assessing loss of earning power to the 2015 injury,
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306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
and (3) awarding attorney fees and penalties. P & C argued
that apportionment should have been applied because Picard
continued to suffer the effects of her 2012 injuries at the time
she suffered her 2015 back injury. P & C further asserted that
Picard’s subsequent back injury should not have been assessed
for a loss of earning power because there was no additional
loss in Picard’s ability to earn wages. Finally, P & C argued
that penalties and attorney fees should not have been awarded
because there was a sufficient basis in law and fact for P & C
to dispute payment of benefits to Picard.
Noting that a lack of clarity existed in the Court of Appeals’
prior decisions regarding apportionment and/or successive
whole body injury awards, the court reversed and vacated the
compensation court’s award of attorney fees, penalties, and
interest provisions. Affirming the awards for Picard’s 2012 and
2015 injuries, the Court of Appeals held that Picard’s award
for the second injury should not have been apportioned with
the award for her earlier injury and that the limitations from
the 2012 injury should not be considered when assessing the
impact of the 2015 injury.
In regard to P & C’s argument that the doctrine of appor-
tionment should apply, the Court of Appeals held that because
Nebraska does not have an apportionment statute, apportion-
ment was not applicable. In doing so, the Court of Appeals
noted that because Picard’s injuries were to different parts of
her body, the second injury and resulting disability would have
existed regardless of whether the prior injury had occurred.
Addressing P & C’s second assignment of error, the Court
of Appeals rejected the argument that Picard suffered no addi-
tional lost earning power from the second injury because
Picard’s lifting restriction from the 2012 injuries to her wrists
was greater than the lifting restrictions from the 2015 injury
to her back. The Court of Appeals interpreted § 48-121(2) as
requiring the compensation court to review a claimant’s lost
earning power from a current injury independent of any limita-
tions from a prior dissimilar compensable injury. It held that
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306 Nebraska Reports
PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
Picard was entitled to compensation for lost earning power
resulting from each of the two successive injuries. The court
reasoned that a contrary holding would deny Picard compensa-
tion for her current injury and, therefore, offend “‘[t]he prin-
cipal purpose of the [Nebraska Workers’ Compensation] Act
[which] is to provide an injured worker with prompt relief from
the adverse economic effects caused by a work-related injury
or occupational disease.’” 1
Both Picard and P & C filed petitions for further review
with this court. P & C sought further review of the Court of
Appeals’ affirmance of the two compensation awards. Picard
sought further review of the Court of Appeals’ holding that
reversed and vacated the compensation court’s finding that
Picard was entitled to penalties, attorney fees, and interest. We
granted P & C’s petition and denied Picard’s.
Picard subsequently filed a cross-appeal, in which her sole
assignment of error is that the Court of Appeals erred in revers-
ing the compensation court’s finding that Picard was entitled to
penalties, attorney fees, and interest under § 48-125.
The Nebraska Association of Trial Attorneys and Nebraskans
for Workers’ Compensation Equity and Fairness, along with
Crete Carrier Corporation; the Nebraska Intergovernmental
Risk Management Association II; SFM Companies; Lockton
Companies, LLC; Dakota Truck Underwriters; and Risk
Administration Services, Inc. (collectively NWCEF), have
filed briefs as amici curiae.
ASSIGNMENTS OF ERROR
In its petition for further review, P & C’s assignments
of error, restated, are that the Court of Appeals erred (1)
in holding that the disability benefits awarded for Picard’s
2015 accident should not be apportioned with the benefits
awarded for the 2012 accident; (2) by failing to analyze
1
Picard v. P & C Group 1, 27 Neb. Ct. App. 646, 668, 934 N.W.2d 394, 409
(2019) (quoting Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693
(2008)).
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PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
Picard’s loss of earning power under the whole body injury
framework as required by § 48-121(2); and (3) by reasoning
that “‘Picard would be denied compensation for her current
injury’” if apportionment applied and, thus, permitting double
recovery.
On cross-appeal, Picard’s sole assignment of error is that the
Court of Appeals erred in reversing the compensation court’s
finding that Picard was entitled to penalties, attorney fees, and
interest under § 48-125.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 2
[2] 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. 3
[3] Whether a reasonable controversy exists under § 48-125
is a question of fact. 4
[4] 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. 5 In workers’ compensation cases, an appellate court
determines questions of law. 6
2
Cox Nebraska Telecom v. Qwest Corp., 268 Neb. 676, 687 N.W.2d 188
(2004).
3
Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018).
4
Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).
5
Id.
6
Id.
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PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
[5] A determination as to whether an injured worker has
had a loss of earning power is a question of fact. 7
ANALYSIS
Picard’s Cross-Appeal.
[6] As an initial matter, we must first address whether we
have jurisdiction over the cross-appeal filed by Picard in this
case. Before reaching the legal issues presented for review, it is
the power and duty of an appellate court to determine whether
it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties. 8
Picard’s sole assignment of error on cross-appeal is that the
Court of Appeals erred in reversing the compensation court’s
finding that Picard was entitled to penalties, attorney fees, and
interest under § 48-125. This assignment of error was set forth
in Picard’s petition for further review, which this court denied.
While Picard’s petition for further review is not properly before
this court, our case law indicates that her cross-appeal is.
Neb. Ct. R. App. P. § 2-102(G) (rev. 2015) provides in rel-
evant part:
If the Supreme Court grants review of a Court of Appeals
decision, the Supreme Court will review only the errors
assigned in the petition for further review and discussed
in the supporting memorandum brief. The Supreme Court
may limit the issues to one or more of those raised by the
parties and may notice plain error at its discretion.
[7] In Williams v. Gering Pub. Schools, 9 we explained:
A cross-appeal, as distinguished from the perfection of
a direct appeal, exists in this state only by virtue of the
rules of this court. There is no statutory authorization for
7
See Swoboda v. Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166 (2004).
8
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
9
Will. v. Gering Pub. Schools, 236 Neb. 722, 726, 463 N.W.2d 799, 803
(1990) (citing Edquist v. Commercial Sav. & Loan Assn., 191 Neb. 618,
217 N.W.2d 82 (1974)).
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PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
the procedure. . . . Therefore, in order to perfect a cross-
appeal, an appellee need comply only with the rules of
the Nebraska Supreme Court.
[8] In Kline v. Farmers Ins. Exch., 10 we addressed a cross-
appeal on further review. In that case, we held that a party’s
failure to file a cross-petition for further review does not pre-
clude the party from cross-appealing because a cross-appeal
on further review is properly perfected by complying with
our court rules. 11 In doing so, we stated: “Neb. Ct. R. App. P.
§ 2-102(H) provides that each party may file additional briefs
in compliance with Neb. Ct. R. App. P. § 2-109 when further
review is granted. Section 2-109 allows appellees to file a
cross-appeal by noting on the cover of their brief ‘Brief on
Cross-Appeal.’” 12
This court declined to exercise jurisdiction over Picard’s
petition for further review; however, her cross-appeal was filed
after further review was granted, and it complies with Neb. Ct.
R. App. P. § 2-109 (rev. 2014). Therefore, we have jurisdiction
over the cross-appeal.
After concluding that we have jurisdiction, we now turn
to the merits of Picard’s cross-appeal. Picard assigns that
the Court of Appeals erred in failing to affirm the Workers’
Compensation Court’s factual finding that she was entitled to
penalties, attorney fees, and interest.
[9,10] Section 48-125 authorizes a 50-percent penalty pay-
ment for waiting time involving delinquent payment of com-
pensation and an attorney fee, where there is no reasonable
controversy regarding an employee’s claim for workers’ com-
pensation. 13 This court has held that a “reasonable controversy”
for the purpose of § 48-125 exists if (1) there is a question
10
Kline v. Farmers Ins. Exch., 277 Neb. 874, 766 N.W.2d 118 (2009).
11
Id.
12
Id. at 879-80, 766 N.W.2d at 123.
13
McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587 N.W.2d 687
(1999).
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PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
of law previously unanswered by the Supreme Court, which
question must be answered to determine a right or liabil-
ity 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 com-
pensation 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. 14 Whether a reasonable controversy
exists under § 48-125 is a question of fact. 15
The compensation court found that there was no reason-
able controversy governing the substance of Picard’s 2015
award and that therefore, she was entitled to attorney fees,
penalties, and interest under § 48-125. Recognizing a lack
of clarity in its prior authority governing the applicability of
apportionment and/or considerations in determining an award
for successive compensable injuries to the body as a whole,
the Court of Appeals reversed and vacated that portion of
Picard’s award.
We granted P & C’s petition for further review in this
case in order to determine whether Nebraska law permits the
apportionment of workers’ compensation awards outside of
§ 48-128. We agree with the Court of Appeals in that a rea-
sonable controversy did exist regarding the compensability of
Picard’s 2015 injury. Thus, the Court of Appeals did not err in
reversing and vacating Picard’s award under § 48-125.
Apportionment.
P & C and amici curiae NWCEF argue that the Court of
Appeals erred in holding that the disability benefits awarded
for Picard’s 2015 accident should not be apportioned with the
benefits awarded for the 2012 accident. Before addressing
this argument, we first survey the basic principles regarding
apportionment and its history in Nebraska.
14
Id. (citing Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408
N.W.2d 280 (1987)).
15
McBee v. Goodyear Tire & Rubber Co., supra note 13.
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PICARD v. P & C GROUP 1
Cite as 306 Neb. 292
Principles of Apportionment.
[11] The issue of apportionment arises when a compen-
sable loss involves successive injuries. 16 When two or more
injuries combine, the effect of the injuries together may result
in a more severe disability than the injuries’ scheduled allow-
ances. 17 For example, if an employee is deaf in one ear and,
as a result of a workplace accident, loses his hearing in the
other ear, the loss of hearing in the second ear may result in
total disability rather than partial disability. Some states have
statutes which permit the employer to apportion, or assign,
the loss attributable to an employee’s preexisting disability
and pay for only the subsequent injury that occurred during
employment. 18
[12,13] Statutes may permit apportionment (1) between suc-
cessive employers or insurance carriers, when prior injuries are
traceable; (2) between an employer and the employee, when
a personal preexisting disability contributes to the resulting
disability; and (3) between an employer and a Second Injury
Fund, when the preexisting disability is covered by the fund. 19
However, absent an apportionment statute, the general rule is
that an employer takes the employee as the employer finds him
or her, and the employer is liable for the entire resulting dis-
ability. 20 This is known as the full-responsibility rule. 21
History of Apportionment in Nebraska.
Prior to 1947, Nebraska had a statute permitting apportion-
ment between an employer and a claimant: “If an employee
receives an injury, which, of itself, would only cause partial
16
See 8 Arthur Larson et al., Larson’s Workers’ Compensation Law § 90
(2019).
17
See id. at § 90.01.
18
See id.
19
See id. at § 90.02.
20
See id. at § 90.01.
21
See id.
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disability, but which, combined with a previous disability,
does in fact cause total disability, the employer shall only be
liable as for the partial disability, so far as the subsequent
injury is concerned.” 22
In 1947, § 48-128 was amended to create Nebraska’s
Second Injury Fund. 23 After World War II, the majority of
states enacted Second Injury Fund statutes to protect work-
ers with preexisting disabilities from employer discrimina-
tion through apportionment. 24 Under these statutes, employers
were not liable for an employee’s preexisting injury that later
combined with a workplace injury to create a greater over-
all disability. 25 The employer’s liability was limited to inju-
ries that occurred during employment because Second Injury
Funds paid the portion of disability benefits attributable to the
preexisting injury. 26
Nebraska’s Second Injury Fund permitted the apportion-
ment of compensation benefits attributable to a preexisting
disability and provided, in relevant part:
If an employee who has a preexisting permanent partial
disability whether from compensable injury or otherwise,
which is or is likely to be a hindrance or obstacle to his
or her obtaining employment or obtaining reemployment
if the employee should become unemployed and which
was known to the employer prior to the occurrence of
a subsequent compensable injury, receives a subsequent
compensable injury resulting in additional permanent
partial or in permanent total disability so that the degree
22
Comp. Stat. § 48-128 (1929). Accord Gilkeson v. Northern Gas Engineering
Co., 127 Neb. 124, 254 N.W. 414 (1934).
23
See 1947 Neb. Laws, ch. 174, § 1, p. 559.
24
Rhett Buchmiller, Note, Second Injury Funds Nationally and in Missouri
— Liability, Functionality, and Viability in Modern Times, 84 Mo. L. Rev.
851 (2019).
25
See id.
26
See id.
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or percentage of disability caused by the combined dis-
abilities is substantially greater than that which would
have resulted from the last injury, considered alone and
of itself, and if the employee is entitled to receive com-
pensation on the basis of the combined disabilities, the
employer at the time of the last injury shall be liable only
for the degree or percentage of disability which would
have resulted from the last injury had there been no pre-
existing disability. 27
In 1990, the Americans with Disabilities Act, which pro-
hibited employers from discriminating against a qualified
employee based on his or her disability, was enacted, and
Second Injury Funds became obsolete. 28 As a result, Nebraska
closed its Second Injury Fund in 1993 to all claims for injuries
occurring after December 1, 1997. 29
Nebraska does not presently have an apportionment statute
for claims occurring after December 1, 1997, and this court
has not yet decided whether Nebraska law permits apportion-
ment of damages for successive work-related injuries outside
of § 48-128. In Heiliger v. Walters & Heiliger Electric, Inc., 30
we addressed whether a claimant’s preexisting back injury
should reduce a disability award when the back injury is later
aggravated by a work-related accident resulting in further dis-
ability. We held that the presence of a prior injury should not
reduce the employee’s recovery unless there is a claim against
the Second Injury Fund. 31 Although Heiliger was decided
prior to the Second Injury Fund’s abolishment, Heiliger
27
§ 48-128 (Reissue 1993).
28
See, generally, Catherine M. Doud, Oklahoma’s Special Indemnity Fund: A
Fund Without a Function?, 30 Tulsa L.J. 745 (1995); 8 Larson et al., supra
note 16, § 91.03[8].
29
See § 48-128 (Reissue 2010).
30
Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d
565 (1990).
31
Id.
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suggests that outside of § 48-128, apportionment did not exist
in Nebraska even prior to the statutory abolition of the Second
Injury Fund.
Apportionment in Court of Appeals.
In the present case, the Court of Appeals concluded that
because Nebraska does not have an apportionment statute,
apportionment is not appropriate. In doing so, the Court of
Appeals described several of its earlier cases regarding appor-
tionment as having a lack of clarity. We interpret that to mean
that the Court of Appeals’ holding in this case is inconsistent
with its prior jurisprudence governing the applicability of
apportionment.
In Jacob v. Columbia Ins. Group, 32 the Court of Appeals
held that apportionment did not apply based on the facts pre-
sented, but the court established a test for determining under
what circumstances apportionment should apply. The court
stated that “‘[t]o be apportionable, then, an impairment must
have been independently producing some degree of disability
before the accident, and must be continuing to operate as a
source of disability after the accident.’” 33 The court also noted
that the problem of apportionment may be encountered when
an employee’s disability from a prior injury contributes to a
claimant’s total disability after a successive injury. 34
In Cummings v. Omaha Public Schools, 35 the Court of
Appeals concluded apportionment was appropriate in a case
involving an employee’s previously compensated disability
for a back injury and a series of work-related accidents that
exacerbated the back injury. In that case, the Court of Appeals
held that Heiliger did not prohibit apportioning a claimant’s
32
Jacob v. Columbia Ins. Group, 2 Neb. Ct. App. 473, 511 N.W.2d 211 (1994).
33
Id. at 491, 511 N.W.2d at 221.
34
Jacob v. Columbia Ins. Group, supra note 32.
35
Cummings v. Omaha Public Schools, 6 Neb. Ct. App. 478, 574 N.W.2d 533
(1998).
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recovery for disability between a prior, compensated injury to
the body as a whole and a subsequent compensable injury to
the body as a whole.
In Cummings, the Court of Appeals applied the test estab-
lished in Jacob when holding that the employee was “not
entitled to be compensated again” for the original disability
because the claimant’s “prior disability [had continued] to
act as a source of lost earning capacity even after the subse-
quent series of accidents.” 36 Distinguishing Jacob, the Court of
Appeals stated:
Because both injuries [in Jacob] were injuries to mem-
bers, rather than injuries to the body as a whole, the
claimant [in Jacob] did not suffer any disability in terms
of loss of earning capacity, as distinguished from func-
tional disability, from the prior injury, and the award
which he received for the prior injury did not need to be
deducted from the disability benefits [to] which he was
entitled as a result of the subsequent injury. 37
Picard and amicus curiae Nebraska Association of Trial
Attorneys contend that apportionment is not appropriate in this
case because it involves two separate disabilities—the 2012
accident resulted in bilateral injuries to Picard’s hands and the
2015 injury resulted in injuries to Picard’s back. However, the
fact that Picard’s injuries involve separate body parts is not dis-
positive. A compensable aggravated disability may be caused
by the combination of two or more injuries even when those
injuries do not act directly upon each other. 38
Nevertheless, Nebraska does not have an apportionment
statute applicable to the facts presented here. The Legislature’s
1947 and 1993 amendments to § 48-128 effectively abro-
gated apportionment for all claims for injuries occurring after
December 1, 1997. And in the absence of such a statute, the
36
Id. at 486, 574 N.W.2d at 540.
37
Id.
38
See, 8 Larson et al., supra note 16, § 90.04[3].
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full-responsibility rule applies, under which the employer is
generally held liable for the entire disability. 39
Our decision in Heiliger suggests that outside of § 48-128,
Nebraska applies the full-responsibility rule. We explained:
[A] claimant is entitled to an award under the [Nebraska]
Workers’ Compensation Act for a work-related injury
disability if the claimant shows, by a preponderance of
evidence, that the claimant sustained the injury and dis-
ability proximately caused by an accident which arose
out of and in the course of the claimant’s employ-
ment, even though a preexisting disability or condition
had combined with the present work-related injury to
produce the disability for which the claimant seeks an
award. . . . Thus, allocation of disability attributable to
a work-related injury and disability attributable to an
antecedent or preexisting disability or condition which
may or may not be work-related is irrelevant in this case
inasmuch as there is no claim against the Second Injury
Fund. 40
Therefore, we clarify that unless otherwise provided by
statute, Nebraska applies the full-responsibility rule and gener-
ally does not apportion the recovery for two or more succes-
sive work-related injuries. We further conclude that because
Picard’s injuries occurred after December 1, 1997, apportion-
ment was inapplicable here. Finally, we find that the Court of
Appeals did not err in its determination that Picard’s second
injury award should not be apportioned with the first.
39
See id. at § 90.01. See, also, JBS Swift & Co. v. Ochoa, 888 N.W.2d 887
(Iowa 2016) (articulating that absent statute permitting apportionment,
full-responsibility rule generally applies). Accord, Mergentime Perini v.
Dept. of Emp. Serv., 810 A.2d 901 (D.C. 2002); Liberty Mut. Ins. Co. v.
Peoples, 595 S.W.2d 135 (Tex. Civ. App. 1979); Colorado Fuel & Iron
Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962); Tomes
v. Gray & Dudley Company, 201 Tenn. 697, 301 S.W.2d 389 (1957).
40
Heiliger v. Walters & Heiliger Electric, Inc., supra note 30, 236 Neb. at
473, 461 N.W.2d at 575.
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Picard’s Earning Power.
P & C argues that the Court of Appeals erred in its analy-
sis of Picard’s loss in earning capacity caused by the second
injury. P & C and amici curiae NWCEF assert that by focusing
on the part of the body involved, the Court of Appeals failed to
analyze Picard’s injuries as injuries to the body as a whole, as
required by § 48-121(2). Picard, on the other hand, maintains
that she is entitled to separate awards because the successive
accidents each independently reduced her earning power.
[14] Section 48-121 provides compensation for three catego-
ries of job-related disabilities: subsection (1) sets the amount
of compensation for total disability; subsection (2) sets the
amount of compensation for partial disability, except in cases
covered by subsection (3); and subsection (3) sets out “sched-
ule” injuries to specified parts of the body with compensation
established therefor. 41
[15,16] The compensation court issued two awards in favor
of Picard for permanent partial disability benefits pursuant to
§ 48-121(2), under which benefits are measured not by loss of
bodily function, but by reduction in or loss of earning power or
employability. 42 Section 48-121(2) provides, in relevant part:
For disability partial in character, except the particular
cases mentioned in subdivision (3) of this section, the
compensation shall be sixty-six and two-thirds percent
of the difference between the wages received at the time
of the injury and the earning power of the employee
thereafter, but such compensation shall not be more than
the maximum weekly income benefit specified in section
48-121.01.
Since 1939, this court has consistently held that earning power,
as used in § 48-121, is not synonymous with wages, but
includes eligibility to procure employment generally, ability to
41
See Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 195 (2014).
42
See Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683, 696 N.W.2d 142
(2005).
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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. 43
After finding Picard had suffered a 75-percent loss of earn-
ing power as a result of the 2012 accident and injury to her
hands, the compensation court determined Picard was entitled
to the sum of $347.06 per week for 2923⁄ 7 weeks. The com-
pensation court further concluded that Picard was entitled to
the additional sum of $229.01 per week for 288 weeks after
finding Picard had also suffered a 55-percent loss of earn-
ing capacity as a result of the 2015 accident and injury to
her back.
Affirming the awards, the Court of Appeals determined that
Picard was entitled to independent awards for both the 2012
injury to her wrists and the 2015 injury to her back because
the successive injuries involved different parts of her body.
In doing so, the Court of Appeals recognized that the compen-
sation court had “assess[ed] Picard’s lost earning power from
the 2015 back injury as if the 2012 injury did not exist.” 44
It further stated: “In short, it appears that because the court
correctly concluded that apportionment was not applicable, it
disregarded any disability from the first accident in assess-
ing lost earnings from the second, resulting in the court’s
ordering an additional award for a 55-percent loss of earn-
ing capacity.” 45
[17] A determination as to whether an injured worker has
had a loss of earning power is a question of fact. 46 In this case,
43
Id.; Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980);
Anderson v. Cowger, 158 Neb. 772, 65 N.W.2d 51 (1954); Micek v. Omaha
Steel Works, 136 Neb. 843, 287 N.W. 645 (1939).
44
Picard v. P & C Group 1, supra note 1, 27 Neb. Ct. App. at 667, 934 N.W.2d
at 408.
45
Id. at 667-68, 934 N.W.2d at 408.
46
Swoboda v. Volkman Plumbing, supra note 7.
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the Court of Appeals recognized that Picard’s earning power
was not further reduced after her 2015 back injury, but went on
to find that Picard was entitled to independent awards because
the injuries were to separate body parts. The issue of whether a
worker may recover independent awards for successive whole
body injuries when the subsequent injury is to a separate body
part, but does not result in a further loss of earning power,
presents a question of law rather than fact. With respect to
questions of law in workers’ compensation cases, an appellate
court is obligated to make its own determination. 47
Pursuant to § 48-121(2), permanent partial disability ben-
efits are measured not by loss of bodily function, but by
reduction in or loss of earning power or employability. 48 The
compensation is “the difference between the wages received at
the time of the injury and the earning power of the employee
thereafter.” 49
Picard’s loss of earning power after the subsequent injury
cannot be accurately assessed without considering her disabil-
ity from the first injury. At the time of the 2015 injury, Picard
was working in a position that accommodated the limitations
and restrictions from her 2012 injury. At the time of trial,
Picard remained competitively employed at P & C in the same
position she held prior to the 2015 injury; she was capable of
performing her assigned job without any additional accom-
modations, limitations, or restrictions; and her hourly rate was
greater than her hourly rate at the time of the 2015 accident.
This demonstrates that Picard suffered no loss of earning
capacity, and the Court of Appeals agreed.
But the Court of Appeals then held that the 2015 injury
and impact on Picard’s lost earning power should be assessed
independently of any limitations from Picard’s 2012 injury.
Although the 2015 injury involved a different body part,
47
Madlock v. Square D. Co., 269 Neb. 675, 695 N.W.2d 412 (2005).
48
See Davis v. Goodyear Tire & Rubber Co., supra note 42.
49
§ 48-121(2) (emphasis supplied).
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Picard did not suffer a loss of earning power or employability
as a result. Because Picard’s earning power was not impaired
by the 2015 accident, the injury was not compensable under
§ 48-121(2). We conclude that both the compensation court
and the Court of Appeals erred in disregarding Picard’s dis-
ability from the 2012 accident when assessing her lost earn-
ings from the 2015 injury. Accordingly, we reverse the Court
of Appeals’ affirmance of the compensation court’s award of
benefits for Picard’s 2015 accident and injury.
Double Recovery.
[18] P & C and amici curiae NWCEF argue that the Court
of Appeals erred in holding that apportionment was inappli-
cable because the award for Picard’s 2015 injury resulted in an
impermissible double recovery. Picard contends that P & C’s
claim regarding double recovery is an equitable claim and that
the compensation court lacks equitable jurisdiction. Having
determined that Picard’s award for the 2015 injury should be
reversed, we need not address this argument. An appellate
court is not obligated to engage in an analysis that is not neces-
sary to adjudicate the case and controversy before it. 50
CONCLUSION
We conclude that the Court of Appeals was correct in its
conclusion that apportionment was inapplicable here. However,
the Court of Appeals erred in affirming the compensation
court’s award of benefits for Picard’s 2015 accident and injury.
We therefore reverse this portion of the Court of Appeals’
decision and remand the cause with directions to enter an
order affirming the compensation court’s award of benefits
for the 2012 injury and reversing the award of benefits for the
2015 injury.
Affirmed in part, and in part reversed
and remanded with directions.
50
Whitesides v. Whitesides, 290 Neb. 116, 858 N.W.2d 858 (2015).