Bower v. Eaton Corp.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/23/2018 12:11 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
BOWER v. EATON CORP.
Cite as 301 Neb. 311
John J. Bower, appellant and cross-appellee,
v. Eaton Corporation and Old R epublic
Insurance Company, appellees
and cross-appellants.
___ N.W.2d ___
Filed October 12, 2018. No. S-17-1188.
1. Workers’ Compensation: Appeal and Error. An appellate court is
obligated in workers’ compensation cases to make its own determina-
tions as to questions of law.
2. ____: ____. Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless they are
contrary to law or depend on findings of fact that are clearly wrong in
light of the evidence.
3. Workers’ Compensation. Whether an injured worker is entitled to
vocational rehabilitation is ordinarily a question of fact to be determined
by the Workers’ Compensation Court.
4. Workers’ Compensation: Appeal and Error. The percentage of per-
manent partial loss of use for an injured member is a question of fact
that an appellate court reviews for clear error.
5. Workers’ Compensation: Expert Witnesses. As the trier of fact, the
Workers’ Compensation Court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony.
6. Workers’ Compensation: Rules of Evidence: Due Process. The
Workers’ Compensation Court is empowered to admit evidence not
normally admissible under the rules of evidence applicable in the trial
courts of this state, subject to the limits of constitutional due process.
7. Workers’ Compensation: Evidence. Given the beneficent purposes
of workers’ compensation law, the Workers’ Compensation Court can
admit evidence not normally admissible in order to investigate cases in
the manner it judges is best calculated to ascertain the substantial rights
of the parties and to carry out justly the spirit of the Nebraska Workers’
Compensation Act.
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
8. Workers’ Compensation: Physicians and Surgeons: Words and
Phrases. Only the supervising physician in a physician-physician assist­
ant relationship falls under the definition of physician as stated in
Workers’ Comp. Ct. R. of Proc. 49(O) (2018).
9. Workers’ Compensation: Appeal and Error. Whether an employee’s
compensable scheduled member injury has resulted in a whole body
impairment and loss of earning power is a question of fact, which an
appellate court reviews for clear error.
10. Workers’ Compensation. Employees are not limited to benefits for a
scheduled member injury when the effects of that injury have extended
to other parts of the employee’s body in a manner that impairs the
employee’s ability to work.
11. ____. The test for determining whether a disability is to a scheduled
member or to the body as a whole is the location of the residual impair-
ment, not the situs of the injury.
12. Workers’ Compensation: Proof. An employee has the burden to prove
by a preponderance of the evidence compensability of a claim against an
employer under the Nebraska Workers’ Compensation Act.
13. Workers’ Compensation. A workers’ compensation award cannot be
based on mere possibility or speculation.
14. Workers’ Compensation: Evidence. An award of future medical
expenses requires explicit evidence that future medical treatment is rea-
sonably necessary to relieve the injured worker from the effects of the
work-related injury.
15. Appeal and Error. An appellate court will not consider an issue on
appeal that was not presented to or passed upon by the trial court.
16. Workers’ Compensation. The Nebraska Workers’ Compensation Act is
construed liberally to carry out its spirit and beneficent purposes.
17. Workers’ Compensation: Jurisdiction: Statutes. As a statutorily cre-
ated court, the Workers’ Compensation Court is a tribunal of limited and
special jurisdiction and has only such authority as has been conferred on
it by statute.
18. Workers’ Compensation: Jurisdiction: Contracts: Parties: Insurance.
The Nebraska Workers’ Compensation Act does not afford the compen-
sation court jurisdiction to resolve contractual disputes between employ-
ees and third-party insurers.
19. Workers’ Compensation: Jurisdiction: Contracts: Insurance. A con-
tractual dispute over private agreements for disability coverage that is
not workers’ compensation coverage is not ancillary to the compensation
court’s primary jurisdiction.
20. Workers’ Compensation: Jurisdiction: Termination of Employment.
Wrongful discharge in relation to filing a workers’ compensation claim
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
does not fall under the compensation court’s exclusive jurisdiction over
accidents arising out of and in the course of employment.
21. Workers’ Compensation: Termination of Employment: Torts.
Wrongful discharge is not one of the tort actions for which employers
receive relief in exchange for liability under the Nebraska Workers’
Compensation Act.
22. Workers’ Compensation: Penalties and Forfeitures. To avoid the
penalty provided for in Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016),
an employer need not prevail in the employee’s claim, but must have
an actual basis in law or fact for disputing the claim and refusing
compensation.
23. Workers’ Compensation: Penalties and Forfeitures: Time: Appeal
and Error. An appellate court reviews for clear error the compensation
court’s findings concerning reasonable controversy underlying its deter-
mination of waiting-time penalties.
24. Workers’ Compensation: Proof. Depending on the circumstances, a
reasonable controversy may exist regarding the employer’s liability until
an employee presents the employer with competent medical evidence
that he or she is entitled to workers’ compensation benefits.
25. Attorney Fees. The determination of the amount of attorney fees is
necessarily a question of fact that requires a factual determination on
several factors, including the value of legal services rendered by an
attorney by considering the amount involved, the nature of the litigation,
the time and labor required, the novelty and difficulty of the questions
raised, the skill required to properly conduct the case, the responsibil-
ity assumed, the care and diligence exhibited, the result of the suit, the
character and standing of the attorney, and the customary charges of the
bar for similar services.
Appeal from the Workers’ Compensation Court: Thomas E.
Stine, Judge. Affirmed.
Vikki S. Stamm and Jerad A. Murphy, of Stamm, Romero &
Associates, P.C., L.L.O., for appellant.
Kent M. Smith and Michael J. Lunn, of Scheldrup, Blades,
Schrock & Smith, P.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
Freudenberg, J.
NATURE OF CASE
The employee appeals from an award of the Nebraska
Workers’ Compensation Court. The issues presented concern
the employee’s member impairment rating, whether an injured
extremity caused a whole body impairment, the sufficiency
of the evidence to prove out-of-pocket medical expenses and
future medical expenses, whether a physician assistant is a
“physician” for the purpose of admitting signed written reports
in lieu of testimony, whether there was no reasonable contro-
versy as to the compensability of the injury such that greater
waiting-time penalties should have been imposed, the compen-
sation court’s jurisdiction to decide retaliatory discharge or a
private disability insurer’s right to reimbursement, the neces-
sity of vocational rehabilitation, and the amount of attorney
fees. We affirm.
BACKGROUND
John J. Bower worked for Eaton Corporation (Eaton) as a
relief operator. Bower earned approximately $19 per hour and
worked approximately 56 hours per week. On September 30,
2013, Bower injured his right shoulder in an accident arising
out of and in the course of his employment.
Bower reported the incident to his supervisor that same day,
but continued working until the end of his shift. Bower woke
up the following morning with “the sharpest pain I’ve ever . . .
felt before.” He saw his general physician, Dr. Chadd Murray.
An x ray did not reveal an injury.
When nonsurgical treatments did not alleviate continuing
symptoms, Bower was referred to Dr. Heber Crockett, an
orthopedic surgeon, for treatment of his injury. Magnetic reso-
nance imaging on November 25, 2013, revealed a moderate
partial rotator cuff tear.
Over the course of the next 3 years, the injury was treated
with medication, steroid injections, physical therapy, and four
surgical procedures. The surgical procedures were performed
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
on February 4 and May 20, 2014, and March 17 and December
22, 2015. During this time, Eaton did not acknowledge that the
injury was work related and did not pay workers’ compensa-
tion benefits.
Bower filed a workers’ compensation claim on February
24, 2015. Bower reached maximum medical improvement on
June 6, 2016, during the pendency of the workers’ compen-
sation proceedings. He submitted to an independent medical
examination on July 7, conducted by Dr. Michael Morrison, an
orthopedic surgeon.
Morrison opined that Bower suffered from a permanent
12-percent impairment of his right upper extremity as a result
of the September 2013 injury. After receiving Morrison’s
report, Eaton determined that Bower had incurred a work-
related injury on September 30, 2013. Eaton determined that
the February and May 2014 and March 2015 surgical pro-
cedures were compensable. But Eaton determined that the
December 2015 surgery was not compensable.
On August 12, 2016, Eaton paid Bower temporary total dis-
ability benefits representing the periods from February 4 until
July 17, 2014, and March 17 until August 16, 2015, in a total
amount of $33,073.72. Eaton also paid on August 12, 2016,
$19,718.91 in permanent partial disability benefits based on
Morrison’s assessment of a 12-percent permanent impairment
of Bower’s right upper extremity.
On September 1, 2016, Eaton discharged Bower from his
employment, explaining to Bower that Eaton could not accom-
modate the work restrictions for his injury. Bower had been
performing his regular duties without any accommodations,
believing that he was adequately compensating with his left
arm in order to avoid lifting too much weight with his right.
Moreover, Bower believed he was qualified to continue work-
ing at Eaton in different positions as the “lead” or supervisor
of the line. Nevertheless, representatives of Eaton told him
that he was not working within his restrictions and that he
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
would be discharged unless he could convince a physician to
reduce them.
In his petition, Bower had sought temporary total disabil-
ity benefits, vocational rehabilitation, and payment of medi-
cal bills incurred and to be incurred in the future, as well as
waiting-time penalties and attorney fees. In a joint pretrial
memorandum, the parties presented several issues for deter-
mination, including reimbursement for out-of-pocket medical
expenses and entitlement to future medical expenses, entitle-
ment to return to work at Eaton or vocational rehabilitation
services, the amount of Bower’s permanency rating to his
right upper extremity and whether he suffered a whole body
impairment, Eaton’s insurer’s entitlement to repayment for
short-term disability payments made to Bower in relation to his
injury, Bower’s entitlement to attorney fees and a waiting-time
penalty, and whether Bower was entitled to compensation for
allegedly being discharged in retaliation for Eaton’s payment
of workers’ compensation benefits.
The statement of issues for determination in the joint pre-
trial memorandum did not include reimbursement for vacation
time used during treatment of the September 2013 injury. In
the court’s notice of trial and pretrial order, it had advised the
parties that any issue not set forth in the joint pretrial memo-
randum would be deemed waived.
The court issued its award on October 16, 2017, following
a trial.
Temporary Total
Disability Awarded
In the court’s award, it found that all the surgeries were
compensable. Thus, in addition to the amount paid voluntarily
by Eaton during the pendency of the proceedings, the court
awarded temporary total disability benefits pertaining to the
December 2015 surgery. This amounted to a total of $1,877.99,
which neither party disputes on appeal.
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
Permanent Disability Based on
Member Impairment R ating
of 12 Percent
The court awarded permanent disability benefits based on
a 12-percent impairment to Bower’s right upper extremity.
This member impairment rating was derived from Morrison’s
report.
Bower had submitted a report by Crockett’s physician
assist­
ant, Yuji Kitabatake. Kitabatake opined in the report
that Bower suffered a 15-percent permanent impairment to his
right upper extremity. The report was signed “Yuji Kitabatake,
PA-C for Heber C. Crockett, M.D.” Crockett did not sign the
document. Eaton objected to the report as hearsay and outside
the scope of Workers’ Comp. Ct. R. of Proc. 10 (2018). The
court received the report into evidence, but stated it would
give the report whatever weight it found was due after review-
ing it.
In its award, the court concluded that the report was not
due any weight. Citing to Neb. Rev. Stat. § 48-151(1) (Reissue
2010) and Workers’ Compensation Court rule 10, the court
found that the report failed to qualify as an expert medical
opinion upon which it could rely for a determination of work-
ers’ compensation benefits.
No Whole Body Impairment
The court declined Bower’s suggestion that his permanent
disability benefits should be calculated based upon a loss of
earning capacity under an impairment to the body as a whole.
The only evidence of an impairment to the body as a whole
was Kitabatake’s report which stated, “Conversion from upper
extremity to whole person is from 15% to 9% of whole person
. . . .” Kitabatake did not otherwise describe how the shoulder
injury caused a whole body impairment.
In refusing to calculate the permanent partial disability
award based on impairment to the body as a whole, the court
reasoned that the medical evidence showed Bower’s residual
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
limitation and impairment were to his right upper extremity,
and the court was “not persuaded that [Bower’s] impairment to
his right upper extremity has in some manner manifested itself
as a . . . whole [body] impairment.”
Partial Waiting-Time
Penalty Awarded
The court awarded Bower a waiting-time penalty pursuant
to Neb. Rev. Stat. § 48-125(3) (Cum. Supp. 2016), but only in
relation to Eaton’s failure to timely pay workers’ compensa-
tion benefits for the December 2015 surgery and corresponding
recovery period. The waiting-time penalty for such benefits
was $939. The court found that there was no longer a reason-
able controversy as to the compensability of Bower’s injury
and the resulting medical care, including the December 2015
surgery and recovery period, as of the date of Eaton’s receipt
of Morrison’s report.
The court declined to award additional waiting-time penal-
ties in relation to the remaining benefits that were paid by
Eaton voluntarily on August 12, 2016, because it concluded
that a reasonable controversy existed as to the compensability
of Bower’s injury until Eaton received Morrison’s report. The
court explained that the reasonable controversy stemmed from
Murray’s original progress note. The note described that Bower
was seen on October 1, 2013, complaining of shoulder pain.
And, in the “History of Present Illness” section, under the title,
“Recent Interventions,” Murry wrote, “He has no injury to his
shoulder just woke up with the pain.”
When an agent of Eaton advised Bower that Murray had
failed to indicate the injury was work related, Murray revised
the progress note. The revision was apparently faxed to Eaton
on November 22, 2013. It added that Bower “had injured his
shoulder at work when he was lifting a heavy item, he has had
pain but it became much worse this morning.” However, the
amended note continued to include the contradictory language
from the original progress note.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
BOWER v. EATON CORP.
Cite as 301 Neb. 311
Exhibit 48 reflects that Eaton’s workers’ compensation
insurer sent a letter to Murray on December 10, 2013, request-
ing that Murray explain the discrepancies between the initial
report and the revised report and why it was changed. The
letter stated that Eaton’s workers’ compensation insurer had
attempted to speak with Murray on several occasions to discuss
the discrepancy. There was no evidence that Murray responded
to Eaton’s inquiries.
No Out- of-Pocket Medical
Expenses Awarded
The court denied Bower’s claim for unpaid out-of-pocket
medical expenses. In its pretrial order, the court had ordered
the parties to file a joint pretrial memorandum, including,
among other things, a “medical expense cover sheet setting
forth an itemization of each medical expense incurred and
unpaid, or for which reimbursement is claimed, by provider,
date, and amount.”
The parties jointly submitted a medical expense cover sheet
that specified providers and amounts, but not dates. It showed
a total paid by Bower in the amount of $3,975.41 and a total
paid by Bower’s insurer in the amount of $38,735.88. The
cover sheet showed a total amount of medical expenses, by
provider, of $104,356.87.
At trial, Bower entered into evidence voluminous medical
billing statements and records. The medical billing statements
are contained in exhibits 23 through 32, and the medical
records are found in exhibits 16 through 20. The billing state-
ments show numerous payments made by health care insurance
and by patient, but several statements contain overlapping
dates, and thus duplicative payment receipts.
The court additionally accepted into evidence exhibits 14
and 15, which contain Bower’s summarization of his out-of-
pocket expenses. Most, but not all, of the items summarized
are detailed by date and provider. Exhibits 14 and 15 claimed a
total of $12,315.94 in out-of-pocket expenses. Bower testified
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
that he was never reimbursed for any out-of-pocket expenses
he paid during the treatment of his injury.
After trial, the court contacted counsel and requested addi-
tional information to clarify the medical expenses. Counsel
were to submit the information by stipulation on October 6,
2017. Counsel did not provide the information as requested.
Approximately 2 weeks later, the court again contacted counsel
on October 10, requesting additional information. Counsel indi-
cated they would have the information to the court by October
12; but counsel did not provide any additional information.
In denying compensation for any out-of-pocket medical
expenses, the court explained, “The medical expense informa-
tion provided by the parties falls woefully short of what was
ordered to be provided by the Pretrial Order, and the Court is
unable to meaningfully analyze the information.” Specifically,
the court noted that the cover sheet reflected medical expenses
still owed in an amount of $61,645.58, which amount the court
observed was not reflected in the exhibits entered into evi-
dence. Furthermore, the court noted the discrepancy between
the claimed amount of out-of-pocket medical expenses in
exhibits 14 and 15 of $12,315.94 and the amount of $3,975.41
stated as being paid by Bower in the medical expenses cover
sheet of the joint pretrial memorandum.
The court concluded that Bower had “failed to satisfy his
burden to prove that the medical expenses submitted in Exhibits
14, 15, and 23 through 32, are fair, reasonable, and related to
the work injury.” With this reasoning, the court awarded Bower
no out-of-pocket medical expenses.
Attorney Fees Awarded
Because the court had determined that Eaton failed to timely
pay benefits relating to the December 2015 surgery, the court
awarded attorney fees under § 48-125(2)(a), in the amount of
$7,500. The court explained that it had reached the amount of
attorney fees to be awarded based upon the general nature of
the case, the time spent in preparing and trying the case, the
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
novelty and difficulty of the questions raised, the skill required
to properly conduct the case, the responsibility assumed, the
care and diligence exhibited, the result of the suit, the charac-
ter and standing of the attorney, and the customary charges of
the bar for similar services.
No Future Medical
Expenses Awarded
The court did not award future medical expenses. The court
found that Bower had failed to establish by explicit medi-
cal testimony that future medical care would be reasonably
necessary.
Bower had testified at trial that Crockett told him he might
need additional cortisone injections if his pain increased;
Crockett did not testify. The only other evidence submitted by
Bower as to future medical treatment was Kitabatake’s report,
in which Kitabatake opined that “it is a reasonable degree of
medical certainty that [Bower] may need injections and physi-
cal therapy in the future.”
In contrast, Morrison opined in his report that “no other
treatment is necessary other than a home program of passive
stretching and shoulder girdle strengthening that could be car-
ried out on a self-motivated program.”
In denying an award of future medical expenses, the court
reiterated that Kitabatake’s opinions lacked foundation and
were accordingly insufficient to support an award of benefits.
Additionally, the court reasoned that Kitabatake’s statement
that Bower “may” need additional care lacked sufficient cer-
tainty to be considered explicit medical evidence of the neces-
sity of future medical care.
Vocational R ehabilitation
Services Awarded
The court concluded that Bower was entitled to vocational
rehabilitation services and temporary total disability benefits
during the time that Bower participates in an approved voca-
tional rehabilitation plan.
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BOWER v. EATON CORP.
Cite as 301 Neb. 311
The court had appointed a vocational rehabilitation coun-
selor. The stipulation of facts in the joint pretrial memorandum
stated, “[Bower] has been referred to a vocational rehabilitation
expert through the Worker[s’] Compensation Court system.”
The counselor submitted four reports between February
and August 2017. The reports indicate that the counselor had
attempted to find suitable employment for Bower with Eaton,
but was unsuccessful. The counselor’s labor market research
indicated that if Bower returned to the labor market with his
current qualifications, he could expect to obtain employment
earning approximately 60 percent of the hourly wage he earned
at Eaton, or approximately $12 per hour.
With the approval of the court, the counselor subsequently
conducted a vocational evaluation. Based on the evaluation,
the counselor recommended moving forward with developing a
vocational rehabilitation plan.
The court found that Bower had met his burden to show he
is entitled to vocational rehabilitation services. Referring to
the stipulation of facts in the joint pretrial memorandum, the
court reasoned, first, that “[t]he parties stipulated that [Bower]
is entitled to vocational rehabilitation services and a counselor
has been appointed by the Court to perform these services.”
Second, the court noted that there was medical evidence in
the record that Bower was unable to return to work at Eaton
after the December 2015 surgery, because Eaton was unable to
accommodate the permanent work restrictions set forth by the
functional capacity examination.
No Jurisdiction Over Short- and
Long-Term Disability Payments
The court declined the parties’ invitation to address whether
Bower was liable to Eaton’s private insurer for disability
payments made in relation to Bower’s injury. Bower had
submitted into evidence demands by Eaton’s insurance pro-
vider that Bower repay approximately $16,000 in short-term
disability payments made by the insurer while Eaton refused
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Cite as 301 Neb. 311
workers’ compensation benefits. The short-term disability
insurance plan, signed by Bower, provided that Bower would
reimburse the insurer to the extent that benefits paid should
be offset by reason of benefits received under any work-
ers’ compensation law. The court explained that this issue
involved contract questions outside the jurisdictional scope of
the Nebraska Workers’ Compensation Act and the Workers’
Compensation Court.
No Jurisdiction Over
Wrongful Termination
Likewise, the court determined that it lacked jurisdiction
to consider Bower’s wrongful discharge allegations. Bower
testified that he did not think Eaton had grounds to discharge
him, because he believed he could perform his duties within
the medical restrictions he had been given. The court con-
cluded that any claim for retaliatory discharge is outside the
framework of the Nebraska Workers’ Compensation Act. Thus,
Bower’s potential remedy for the alleged retaliatory discharge
must be brought in a different forum.
R eimbursement for Vacation Time
The court’s award did not address any claim for compen-
sation of vacation time used during periods Bower could not
work because of the September 2013 injury. This was presum-
ably because Bower did not include this issue in the pretrial
statement of issues for determination.
ASSIGNMENTS OF ERROR
Bower assigns that the Workers’ Compensation Court erred
by failing to (1) award permanent disability based on a loss
of earning capacity rather than a member impairment rating,
(2) award permanent disability based on a 12-percent member
impairment rating rather than a 15-percent member impair-
ment rating, (3) award a waiting-time penalty from the date
of the injury rather than the date of payment of benefits in
August 2016, (4) award Bower out-of-pocket medical expenses
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pursuant to the exhibits offered at trial, (5) award future medi-
cal expenses for cortisone injections, (6) award reimbursement
of vacation time and short-term disability, (7) decide the issue
of Eaton’s right to reimbursement of disability payments made
by its insurer, and (8) decide Bower’s wrongful termina-
tion claim.
On cross-appeal, Eaton and its workers’ compensation insur-
ance carrier, Old Republic Insurance Company (Old Republic),
assign that the court erred in awarding Bower (1) vocational
rehabilitation services and (2) $7,500 in attorney fees.
STANDARD OF REVIEW
Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), the
judgment made by the compensation court shall have the same
force and effect as a jury verdict in a civil case and 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.
[1] An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.1
[2] Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact that are
clearly wrong in light of the evidence.2
[3] Whether an injured worker is entitled to vocational reha-
bilitation is ordinarily a question of fact to be determined by
the Workers’ Compensation Court.3
1
See Dragon v. Cheesecake Factory, 300 Neb. 548, 915 N.W.2d 418
(2018).
2
Id.
3
Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).
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BOWER v. EATON CORP.
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ANALYSIS
Bower claims on appeal that the court’s award of a 12-­percent
impairment was insufficient and that, in any event, he should
have been awarded permanent partial disability based on an
injury to his body as a whole. Bower argues, further, that the
court clearly erred in failing to award him any out-of-pocket
medical expenses and that it should have awarded a waiting-
time penalty for all the compensation and medical payments
unpaid within 30 days of Murray’s revised progress note.
Finally, Bower asserts that the court should have addressed the
merits of his retaliatory discharge claim, the employer’s private
disability insurer’s right to reimbursement for temporary dis-
ability payments, and Bower’s right to reimbursement of vaca-
tion time used as a result of his injury. On cross-appeal, Eaton
and Old Republic contest the necessity of vocational rehabilita-
tion and the amount of attorney fees awarded. We address each
of these arguments in turn.
Member Impairment R ating
[4] We first address Bower’s contention that the court should
have given his scheduled member impairment a rating of 15
percent rather than 12 percent. The percentage of permanent
partial loss of use for an injured member is a question of fact
that we review for clear error.4
[5] Impairment to a scheduled member is measured on the
basis of loss of physical function.5 An impairment rating is
simply a medical assessment of what physical abilities have
been adversely affected or lost by an injury.6 The extent of loss
4
See, Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233
(1999); Schmid v. Nebraska Intergov. Risk Mgt. Assn., 239 Neb. 412, 476
N.W.2d 243 (1991); Knuffke v. Bartholomew, 106 Neb. 763, 184 N.W. 889
(1921).
5
See, Neb. Rev. Stat. § 48-121 (Reissue 2010); Yager v. Bellco Midwest,
236 Neb. 888, 464 N.W.2d 335 (1991).
6
Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405
(2003).
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of use does not necessarily equal the extent of medical impair-
ment, and testimony need not establish a specific percentage
impairment rating to be legally sufficient.7 Furthermore, the
trial judge is not limited to expert testimony to determine the
degree of disability, but instead may rely on the testimony
of the claimant.8 Nonetheless, the medical impairment rating
given by a doctor may be an important factor.9 And, as the trier
of fact, the Workers’ Compensation Court is the sole judge
of the credibility of the witnesses and the weight to be given
their testimony.10
Kitabatake’s report was the only express medical opinion
that Bower suffered from a 15-percent impairment to his right
upper extremity. Bower asserts that the court erred as a matter
of law in deciding not to give Kitabatake’s report weight on the
ground that it failed to comply with Workers’ Compensation
Court rule 10. We find no merit to this argument.
[6,7] The compensation court does not have the right to
establish rules of evidence, procedure, or discovery that are
more restrictive or onerous than the rules applicable to the
trial courts in this state.11 But it is empowered to admit evi-
dence not normally admissible under the rules of evidence
applicable in the trial courts of this state, subject to the limits
of constitutional due process.12 This is because the Workers’
Compensation Court is not bound by the usual common-law
or statutory rules of evidence.13 Given the beneficent pur-
poses of workers’ compensation law, the court can admit such
7
See id.
8
See Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016).
9
See Swanson v. Park Place Automotive, supra note 6.
10
Kerkman v. Weidner Williams Roofing Co., 250 Neb. 70, 547 N.W.2d 152
(1996).
11
Cunningham v. Leisure Inn, 253 Neb. 741, 573 N.W.2d 412 (1998).
12
See, Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354
(2007); Cunningham v. Leisure Inn, supra note 11.
13
Cunningham v. Leisure Inn, supra note 11.
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evidence in order to investigate cases in the manner it judges
is best calculated to ascertain the substantial rights of the par-
ties and to carry out justly the spirit of the Nebraska Workers’
Compensation Act.14
Rule 10 is an evidentiary rule that we have held is not more
restrictive than the rules applied to trial courts in this state.15
Rather, rule 10 allows the compensation court to admit into
evidence medical reports that would not normally be admis-
sible in the trial courts of this state.16 Rule 10 states in rel-
evant part:
A. Medical and Vocational Rehabilitation. . . . [W]ith
respect to medical evidence on hearings before a judge of
[the Workers’ Compensation C]ourt, written reports by
a physician or surgeon duly signed by him, her or them
and itemized bills may, at the discretion of the court, be
received in evidence in lieu of or in addition to the per-
sonal testimony of such physician or surgeon; with respect
to evidence produced by vocational rehabilitation experts,
physical therapists, and psychologists on hearings before
a judge of said court, written reports by a vocational reha-
bilitation expert, physical therapist, or psychologist duly
signed by him, her or them and itemized bills may, at the
discretion of the court, be received in evidence in lieu of
or in addition to the personal testimony of such vocational
rehabilitation expert, physical therapist, or psychologist.
The only requirements for a medical report to be admissible
under rule 10 are that the report be a medical report and be
signed by the physician, surgeon, vocational rehabilitation
expert, physical therapist, or psychologist.17 Physician assist­
ants are not listed in rule 10.
14
Olivotto v. DeMarco Bros. Co., supra note 12.
15
See Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (1998).
16
Id.
17
See Baucom v. Drivers Management, 12 Neb. Ct. App. 790, 686 N.W.2d 98
(2004).
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The court concluded that Kitabatake’s signature did not sat-
isfy the requirements of rule 10, because Kitabatake is not a
“physician.” We agree.
“Physician” is defined by Workers’ Comp. Ct. R. of Proc.
49(O) (2018) as “any person licensed to practice medicine
and surgery, osteopathic medicine, chiropractic, podiatry, or
dentistry in the State of Nebraska or in the state in which
the physician is practicing.” Other statutes make clear that
it is the supervising physician, not the physician assistant,
who has the license to practice medicine. The Medicine and
Surgery Practice Act,18 under § 38-2047, specifies that physi-
cian assistants are considered agents of a supervising physician
to perform activities delegated by the supervising physician.
Under § 38-2050(1)(a), to be a supervising physician of a
physician assistant, a person must “[b]e licensed to practice
medicine and surgery under the Uniform Credentialing Act.”
Finally, in the context of the Interstate Medical Licensure
Compact,19 the Legislature has defined the practice of medi-
cine as clinical prevention, diagnosis, or treatment of human
disease, injury, or condition requiring a “physician” to obtain
and maintain a license in compliance with the Medicine and
Surgery Practice Act.
[8] As such, only the supervising physician in a
­physician-physician assistant relationship falls under the defi-
nition of physician as stated in Workers’ Compensation Court
rule 49(O). Kitabatake’s report, signed only by Kitabatake, was
not signed by a physician as required by rule 10.
We have upheld the compensation court’s decision to exclude
evidence that fails to strictly comply with rule 10. In Johnson
v. Ford New Holland,20 for example, we held that the court
18
See Neb. Rev. Stat. § 38-2001 et seq. (Reissue 2016 & Supp. 2017) and
2018 Neb. Laws, L.B. 701, §§ 5 and 6, and L.B. 1034, §§ 30 and 31
(effective July 19, 2018).
19
See Neb. Rev. Stat. § 38-3603(j) (Supp. 2017).
20
See Johnson v. Ford New Holland, supra note 15.
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did not abuse its discretion in refusing to admit into evidence
a physician’s written report that failed to comply with rule 10
because it lacked a signature.
Similarly here, the court did not abuse its discretion in refus-
ing to admit into evidence a report that was not signed by a
physician, as is required by the relevant provisions of rule 10.
The court’s conclusion that Bower suffered from a 12-percent
impairment to his right upper extremity was supported by
Morrison’s report and was not the result of erroneously fail-
ing to consider the written report signed only by Kitabatake,
a physician assistant. The court did not clearly err in finding a
permanent partial loss of 12 percent.
Whole Body Impairment
[9] We find no merit to Bower’s alternative argument that he
should have been awarded permanent total disability benefits
for an injury to his body as a whole, rather than permanent par-
tial disability benefits for his injury to his right upper extrem-
ity. Whether an employee’s compensable scheduled member
injury has resulted in a whole body impairment and loss of
earning power is a question of fact, which we review for
clear error.21
[10] Under Nebraska’s workers’ compensation statutes, an
injury to the upper extremity constitutes a scheduled member
injury.22 Permanent total disability benefits are not generally
available for a single scheduled member injury.23 However,
employees are not limited to benefits for a scheduled mem-
ber injury when the effects of that injury have extended to
other parts of the employee’s body in a manner that impairs
the employee’s ability to work.24 When a member injury
21
See Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409
(2013).
22
See Ideen v. American Signature Graphics, supra note 4.
23
Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).
24
Moyera v. Quality Pork Internat., supra note 21.
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results in a whole body impairment, the court should enter an
award for loss of earning capacity rather than for the mem-
ber injury.25
[11] The test for determining whether a disability is to a
scheduled member or to the body as a whole is the location
of the residual impairment, not the situs of the injury.26 If, by
the point of maximum medical improvement, an employee has
developed a whole body impairment in addition to a sched-
uled member injury, the question is whether the work-related
injury proximately caused the whole body impairment.27 For
instance, we have held that the compensation court did not
err in finding that a foot injury proximately caused a whole
body impairment, upon evidence that the resulting change in
an employee’s gait caused chronic pain in the employee’s hips
and lower back.28
But there was no evidence in this case that Bower’s shoul-
der injury extended to other parts of his body. The only medi-
cal opinion that Bower suffered a whole body impairment
was found in Kitabatake’s report, which, as discussed, the
court refused to give weight. Even in Kitabatake’s report,
however, there is no evidence that Bower suffered impair-
ment to other parts of his body. Kitabatake simply reasoned
that “[c]onversion from upper extremity to whole person is
from 15% to 9% of whole person . . . .” Bower’s testimony
and the exhibits admitted at trial likewise failed to demon-
strate that Bower suffered residual impairment in other parts
of his body.
The court did not clearly err in concluding that Bower did
not have a whole body impairment as a result of the September
2013 injury.
25
See Bishop v. Speciality Fabricating Co., 277 Neb. 171, 760 N.W.2d 352
(2009).
26
Moyera v. Quality Pork Internat., supra note 21.
27
Id.
28
See id.
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Out- of-Pocket Medical Expenses
Neither did the court clearly err in concluding that Bower
failed to satisfy his burden of proof to support an award of
out-of-pocket medical expenses. This determination involved
findings of fact, which will not be disturbed on appeal unless
they are clearly wrong in light of the evidence.29
Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2016) provides
that the employer is liable for, among other things, all reason-
able medical, surgical, and hospital services, and medicines,
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. Section 48-120(8) states in relevant
part that the compensation court shall order “reimbursement to
anyone who has made any payment to the supplier for services
provided in this section.” It states in full:
The compensation court shall order the employer to make
payment directly to the supplier of any services provided
for in this section or reimbursement to anyone who has
made any payment to the supplier for services provided
in this section. No such supplier or payor may be made
or become a party to any action before the compensa-
tion court.30
[12] An employee has the burden to prove by a preponder-
ance of the evidence compensability of a claim against an
employer under the Nebraska Workers’ Compensation Act.31
Where the evidence shows that certain medical and hospital
expenses have been incurred by an injured employee, a prima
facie case is made out.32
29
Id.
30
§ 48-120(8).
31
See, Brandt v. Leon Plastics, Inc., 240 Neb. 517, 483 N.W.2d 523 (1992);
Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910
(1990).
32
Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N.W.2d
547 (1966).
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Bower presented exhibits 14 and 15, which are a detailed
summary of $12,315,94 in out-of-pocket medical expenses.
But, as the court pointed out, that amount is contradicted by
the joint medical expense cover sheet claiming only $3,975.41
in out-of-pocket medical expenses. And it is difficult to sur-
mise what the medical bills established in out-of-pocket medi-
cal expenses.
[13] The court twice sought clarification. The record does not
reflect that the parties jointly or Bower individually attempted
to provide such clarification. An award cannot be based on
mere possibility or speculation.33 The court did not clearly err
in concluding that, based on the self-contradictory evidence
presented by Bower and the confusing state of the medical bills
presented, it would be mere speculation to determine a sum
certain for out-of-pocket medical expenses.
Future Medical Expenses
[14] We find no error in the court’s refusal to award future
medical expenses. Before an order for future medical benefits
may be entered, there should be a stipulation of the parties or
evidence in the record to support a determination that future
medical treatment will be reasonably necessary to relieve the
injured worker from the effects of the work-related injury or
occupational disease.34 An award of future medical expenses
requires explicit evidence that future medical treatment is
reasonably necessary to relieve the injured worker from the
effects of the work-related injury.35
Morrison opined that no other treatment would be necessary
for the September 2013 injury other than a “self-motivated
program” of stretching and strengthening. The only evidence to
the contrary is found in Kitabatake’s report. But, as discussed,
33
See Maroulakos v. Walmart Associates, 300 Neb. 589, 915 N.W.2d 432
(2018).
34
Tchikobava v. Albatross Express, supra note 8.
35
Id.
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the court did not err in discounting the opinion expressed
therein. Thus, the court did not err in failing to award future
medical expenses.
R eimbursement for Vacation, Sick,
Personal, and Holiday Time
We turn next to Bower’s claims regarding reimbursement
for vacation, sick, personal, and holiday time used when he
was unable to work as a result of the 2013 injury. In its award,
the court did not expressly address whether Bower had a right
to reimbursement for any vacation, sick, personal, and holiday
time. But the court had clearly advised the parties in its pretrial
order that any issue not set forth in the joint pretrial memo-
randum would be waived. Bower did not set forth in the joint
pretrial memorandum the issue of compensation for vacation,
sick, personal, and holiday time. Indeed, this issue was only
briefly mentioned in opening statements.
[15] An appellate court will not consider an issue on appeal
that was not presented to or passed upon by the trial court.36
Furthermore, we have on numerous occasions affirmed the
limiting of the issues at trial to those specified in the pretrial
order.37 We will not reverse the court’s award for failing to
address an issue that Bower failed to present in the pretrial
memorandum after the court had advised the parties that the
issues at trial would be limited to those specified by the par-
ties in the joint pretrial memorandum. We find no merit to this
assignment of error.
Vocational R ehabilitation Services
Eaton and Old Republic argue on cross-appeal that there
was insufficient competent evidence to warrant the court’s
award of vocational rehabilitation services. Further, Eaton
disputes the court’s conclusion that Eaton had stipulated that
36
Turney v. Werner Enters., 260 Neb. 440, 618 N.W.2d 437 (2000).
37
Cockrell v. Garton, 244 Neb. 359, 507 N.W.2d 38 (1993).
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Bower was entitled to vocational rehabilitation services. We
agree that the record fails to demonstrate a stipulation that
Bower was entitled to vocational rehabilitation. However, we
find that the court did not clearly err in concluding upon the
evidence presented that Bower was entitled to vocational
rehabilitation.
[16] Whether an injured worker is entitled to vocational
rehabilitation is ordinarily a question of fact to be determined
by the compensation court.38 To determine whether findings of
fact made by the compensation court support an order grant-
ing or denying vocational rehabilitation benefits, an appellate
court must consider the findings of fact in light of the statute
authorizing vocational rehabilitation benefits, Neb. Rev. Stat.
§ 48-162.01 (Reissue 2010). Furthermore, in considering the
compensation court’s factual findings, we are mindful that the
Nebraska Workers’ Compensation Act is construed liberally to
carry out its spirit and beneficent purposes.39
Section 48-162.01(1) describes that “[o]ne of the primary
purposes of the Nebraska Workers’ Compensation Act is resto-
ration of the injured employee to gainful employment” and that
“[t]o this end the Nebraska Workers’ Compensation Court may
employ one or more specialists in vocational rehabilitation.”
Under § 48-162.01(3):
When as a result of the injury an employee is unable to
perform suitable work for which he or she has previous
training or experience, he or she is entitled to such voca-
tional rehabilitation services, including job placement and
training, as may be reasonably necessary to restore him or
her to suitable employment.
“‘[S]uitable employment’” is “‘employment which is
compatible with the employee’s pre-injury occupation, age,
education, and aptitude.’”40 We have affirmed vocational
38
Anderson v. EMCOR Group, supra note 3.
39
Id.
40
Id. at 182, 903 N.W.2d at 34.
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rehabilitation services aimed at placing the employee into
employment paying wages similar to those earned before the
work-related injury 41 because the statutory goal of suitable
employment includes a similar earning capacity.42
The vocational counselor’s reports show that after much
investigation, the counselor determined Bower could not
return to his previous job with Eaton, return to his previous
job with Eaton with modification, or return to employment at
Eaton with a new job.43 Bower had indicated that he preferred
to continue working at Eaton, where he earned a wage and
benefits commensurate with his 20 years of employment at
the company. But while Bower believed that he could com-
pensate for his injury and perform his past job within his
medical restrictions, Eaton was clear that it would not employ
Bower given the medical restrictions of his permanent par-
tial disability.
The counselor’s labor market research demonstrated that
with Bower’s current qualifications, Bower would not be
able to obtain employment earning wages commensurate with
his past wages at Eaton. Thus, the counselor recommended
vocational rehabilitation so that Bower could obtain suitable
employment.
Eaton and Old Republic argue on cross-appeal that voca-
tional rehabilitation was not necessary in order for Bower to
obtain suitable employment, because Bower testified that he
believed himself to be physically capable of doing the same
or similar jobs at Eaton or with another manufacturer. Eaton
ignores the part of Bower’s testimony where he explains that
a job with another manufacturer would not pay as well as a
41
See, Anderson v. EMCOR Group, supra note 3; Becerra v. United Parcel
Service, 284 Neb. 414, 822 N.W.2d 327 (2012); Yager v. Bellco Midwest,
supra note 5.
42
See, Becerra v. United Parcel Service, supra note 41; Yager v. Bellco
Midwest, supra note 5.
43
See § 48-162.01(3).
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job with Eaton. Eaton also ignores the fact that it refused to
continue to employ Bower. The court did not clearly err in
finding that vocational rehabilitation was reasonably necessary
to restore Bower to suitable employment.
Private Disability Payments
and Wrongful Discharge
[17] We find as a matter of law that the compensation court
did not err in concluding that it lacked jurisdiction to deter-
mine the merits of Bower’s claims for damages for wrongful
discharge and for a declaration as to his liability to reimburse
Eaton’s insurer for private disability payments. As a statutorily
created court, the Workers’ Compensation Court is a tribunal
of limited and special jurisdiction and has only such authority
as has been conferred on it by statute.44 Under Neb. Rev. Stat.
§ 48-152 (Reissue 2010), the Nebraska Workers’ Compensation
Court has only the “authority to administer and enforce all of
the provisions of the Nebraska Workers’ Compensation Act,
and any amendments thereof, except such as are committed to
the courts of appellate jurisdiction.”
[18] We have held that the Nebraska Workers’ Compensation
Act does not afford the compensation court jurisdiction to
resolve contractual disputes between employees and third-
party insurers.45 Neb. Rev. Stat. §§ 48-130 and 48-147 (Reissue
2010) prohibit the compensation court from taking into consid-
eration when determining workers’ compensation any benefits
independent of the act paid to the employee.
Still, Bower asserts that his alleged contractual obligation
to reimburse Eaton’s insurer for payments under a private
disability policy is “ancillary” to resolution of his workers’
44
Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013).
45
Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved in part, Kimminau v. Uribe Refuse Serv., 270
Neb. 682, 707 N.W.2d 229 (2005). See, also, Nerison v. National Fire Ins.
Co. of Hartford, 17 Neb. Ct. App. 161, 757 N.W.2d 21 (2008).
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compensation claim and within the compensation court’s juris-
diction pursuant to Neb. Rev. Stat. § 48-161 (Reissue 2010).46
Section 48-161 provides that the compensation court shall have
jurisdiction to decide issues that are “ancillary” to resolution of
the workers’ compensation claim.
We have held that § 48-161 grants the compensation court
jurisdiction to resolve contractual disputes concerning cover-
age by providers of workers’ compensation insurance.47 We
have never held, however, that § 48-161 confers upon the com-
pensation court jurisdiction to resolve contractual disputes for
coverage that is not workers’ compensation coverage. Bower
seems to acknowledge that questions of contractual obligations
under private disability insurance contracts would not usually
be considered ancillary to the compensation court’s primary
jurisdiction. But he asserts the fact that “the disability provider
and Eaton are one in the same” 48 is an unusual circumstance
that makes a difference.
Bower fails to explain why this would make a difference.
With the exception of reimbursement of health care insurance
providers as specifically described in § 48-120(8), provid-
ers of insurance coverage other than workers’ compensation
coverage are third-party insurers outside the scope of the
Nebraska Workers’ Compensation Act. This is true regard-
less of whether the private insurance coverage was provided
through the employer as a benefit of employment.
[19] A contractual dispute over private agreements for dis-
ability coverage that is not workers’ compensation coverage is
not ancillary to the compensation court’s primary jurisdiction.
As stated by §§ 48-130 and 48-147, nothing in the Nebraska
Workers’ Compensation Act shall affect any existing insurance
46
Brief for appellant at 38.
47
See, also, Kruid v. Farm Bureau Mut. Ins. Co., 17 Neb. Ct. App. 687, 770
N.W.2d 652 (2009).
48
Brief for appellant at 32.
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contract for benefits in addition to the compensation provided
for by the act, and no insurance of the injured employee inde-
pendent of the act shall be taken into consideration by the
compensation court. Bower’s contractual obligations toward
Eaton’s private disability insurer had no bearing on the court’s
determinations of the compensability of Bower’s injury, the
amount of the award, or Bower’s ability to receive the award.
The court did not err in refusing to address Bower’s obligation
to reimburse Eaton’s private disability insurer under the offset
provisions of the private insurance contract.
[20] Likewise, the court did not err in refusing to consider
Bower’s claim for wrongful discharge. We have recognized
that an employee can state a claim in district court for wrongful
discharge in retaliation for filing a claim under the Nebraska
Workers’ Compensation Act.49 We have never said that the
compensation court has jurisdiction over such a claim. To the
contrary, by recognizing such a claim in district court, we have
implicitly held that wrongful discharge in relation to filing a
workers’ compensation claim does not fall under the compen-
sation court’s exclusive jurisdiction over accidents arising out
of and in the course of employment.50
[21] The Nebraska Workers’ Compensation Act does not
describe wrongful discharge, and as a statutorily created court,
it is the role of the Legislature to determine what acts fall
within the Workers’ Compensation Court’s exclusive jurisdic-
tion.51 Wrongful discharge is not one of the tort actions for
which employers receive relief in exchange for liability under
the act. The court was correct in concluding that it lacked juris-
diction over Bower’s wrongful discharge claim.
49
Jackson v. Morris Communications Corp., 265 Neb. 423, 657 N.W.2d 634
(2003).
50
See Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d
236 (2013).
51
See id.
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Waiting-Time Penalty
We turn next to the penalties imposed by the court against
Eaton for its failure to timely pay all amounts of compensa-
tion due to Bower. Eaton does not contest that it was liable
for the $939 imposed for its failure to timely pay benefits
relating to the December 2015 surgery. But Bower argues that
the waiting-time penalty should have been more, because no
reasonable controversy existed as to the compensability of his
injury by November 8, 2013, the date of his initial medical
visit to Crockett.
Section 48-125(1)(a) states that all amounts of “compensa-
tion” payable under the Nebraska Workers’ Compensation Act
“shall be payable periodically in accordance with the methods
of payment of wages of the employee at the time of the injury
or death.” “Compensation” in reference to additional sums for
waiting time, an attorney fee, and interest, means periodic dis-
ability or indemnity benefits payable on account of the employ-
ee’s work-related injury or death.52 Section 48-125(1)(b) pro-
vides for a 50-percent waiting-time penalty in the event such
periodic payments are not timely made.
[22] 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,
and we have presumed that the Legislature acquiesced in
such determination of the Legislature’s intent because it has
never amended the Nebraska Workers’ Compensation Act to
address reasonable controversy.53 Thus, 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 disability and (2) no reasonable contro-
versy existed regarding the employee’s claim for benefits.54
52
Bituminous Casualty Corp. v. Deyle, supra note 31.
53
Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015).
54
Id.
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To avoid the penalty provided for in § 48-125, an employer
need not prevail in the employee’s claim, but must have an
actual basis in law or fact for disputing the claim and refus-
ing compensation.55
[23] Whether a reasonable controversy exists is a question
of fact.56 Accordingly, we review for clear error the compensa-
tion court’s findings concerning reasonable controversy under-
lying its determination of waiting-time penalties.57
[24] Depending on the circumstances, a reasonable con-
troversy may exist regarding the employer’s liability until
an employee presents the employer with competent medical
evidence that he or she is entitled to workers’ compensation
benefits.58 Although the total amount of compensation due
may be in dispute, the employer’s insurer nevertheless has a
duty to promptly pay that amount which is undisputed, and the
only legitimate excuse for delay of payment is the existence
of genuine doubt from a medical or legal standpoint that any
liability exists.59
The court found that a reasonable controversy existed at
the time of the injury and up until Morrison’s report, because
internally inconsistent and self-contradictory medical reports
by Murray created genuine doubt from a medical standpoint
whether Bower had an injury that was incurred at work.
Murray’s first report on October 1, 2013, stated that Bower had
55
Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280
(1987).
56
Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998).
57
See Dragon v. Cheesecake Factory, supra note 1.
58
See McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587 N.W.2d
687 (1999). Compare Heesch v. Swimtastic Swim School, 20 Neb. Ct. App.
260, 823 N.W.2d 211 (2012).
59
See, Musil v. J.A. Baldwin Manuf. Co., 233 Neb. 901, 448 N.W.2d 591
(1989); Kubik v. Union Ins. Co., 4 Neb. Ct. App. 831, 550 N.W.2d 691 (1996);
13 Arthur Larson et al., Larson’s Workers’ Compensation Law § 135.03
(2017).
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“no injury to his shoulder just woke up with pain.” Murray’s
revised report faxed to Eaton on November 22 did not eliminate
that statement. Instead, Murray added that Bower “injured his
shoulder at work when he was lifting a heavy item, he has had
pain but it became much worse this morning.” The evidence
indicates that Eaton tried to speak with Murray on multiple
occasions in order to obtain clarification as to why Murray had
changed the medical record and why it was inconsistent. There
is no evidence that Murray responded to these inquiries.
In reviewing workers’ compensation cases, this court is not
free to weigh the facts anew; rather, it accords to the findings
of the compensation court the same force and effect as a jury
verdict in a civil case.60 Applying these principles, we find that
the court did not clearly err in finding there was a reasonable
controversy as to the compensability of Bower’s injury until
the report of Eaton’s independent medical examiner.
Attorney Fees
Lastly, we address attorney fees. Eaton does not contest that
some assessment of attorney fees was appropriate as part of
the penalty for its late payment of compensation relating to the
December 2015 surgery. Rather, in their cross-appeal, Eaton
and Old Republic assert that the amount of the fees is unrea-
sonable. Section 48-125(2)(a) provides for a “reasonable attor-
ney’s fee” when the employer fails to timely pay compensation
or medical payments.61
[25] The determination of an award of attorney fees pursu-
ant to § 48-125 must be calculated on a case-by-case basis.62
The determination of the amount of attorney fees is necessar-
ily a question of fact that requires a factual determination on
several factors, including the value of legal services rendered
60
Rodriquez v. Prime Meat Processors, 228 Neb. 55, 421 N.W.2d 32 (1988).
61
See, VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d
277 (2013); Bituminous Casualty Corp. v. Deyle, supra note 31.
62
Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (2014).
- 342 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
BOWER v. EATON CORP.
Cite as 301 Neb. 311
by an attorney by considering the amount involved, the nature
of the litigation, the time and labor required, the novelty and
difficulty of the questions raised, the skill required to properly
conduct the case, the responsibility assumed, the care and dili-
gence exhibited, the result of the suit, the character and stand-
ing of the attorney, and the customary charges of the bar for
similar services.63
In arguing that the amount of $7,500 was unreasonable,
Eaton focuses on the small award of $1,877.99 in contested
temporary total disability benefits and $939 in penalty ben-
efits. Eaton argues that Bower’s attorney should not be com-
pensated for that portion of the work attributable to Bower’s
unsuccessful claims for reimbursement of medical expenses,
future medical expenses, loss of earning capacity, and wrong-
ful termination.
We have said that while particular attention should be
given to the amount of legal work performed in relation to
the unpaid compensation and medical bills, the award is not
necessarily limited to legal work performed in recovering a
specific, unpaid medical bill or delinquent compensation.64
Like other questions of fact, the compensation court’s deter-
mination of reasonable attorney fees pursuant to § 48-125
will not be disturbed on appeal unless it is clearly wrong in
light of the evidence.65 The court’s award of $7,500 was not
clearly wrong.
CONCLUSION
For the foregoing reasons, we affirm the court’s award.
A ffirmed.
63
Id.
64
Simmons v. Precast Haulers, supra note 62. See, also, Harmon v. Irby
Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999) (Gerrard, J., concurring;
McCormack, J., joins).
65
Simmons v. Precast Haulers, supra note 62; Harmon v. Irby Constr. Co.,
supra note 64.