Martinez v. CMR Constr. & Roofing of Texas

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/14/2019 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
Juan M artinez, appellee, v. CMR Construction
& Roofing of Texas, LLC, defendant and
third -party plaintiff, appellant, and
R ene Menjivar and Texas Mutual
Insurance Company, third -party
defendants, appellees.
____ N.W.2d ___
Filed March 22, 2019. No. S-18-419.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the compensation court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted without or
in excess of its 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 judgment, order, or award; or (4) the findings
of fact by the compensation court do not support the order or award.
2. ____: ____. An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
3. ____: ____. Findings of fact made by the Workers’ Compensation Court
after review have the same force and effect as a jury verdict and will not
be set aside unless clearly erroneous.
4. Workers’ Compensation. As the trier of fact, the Workers’ Compensation
Court is the sole judge of the credibility of witnesses and the weight to
be given their testimony.
5. Workers’ Compensation: Liability. When a contractor fails to require
a subcontractor to carry workers’ compensation insurance and an
employee of the latter sustains a job-related injury, the contractor is a
statutory employer and, with the immediate employer subcontractor, is
jointly and severally liable to pay compensation under the terms of the
Nebraska Workers’ Compensation Act.
6. Workers’ Compensation. When determining a loss of earning capac-
ity for an injured worker, the four factors to consider under Neb. Rev.
Stat. § 48-121 (Reissue 2010) are the worker’s (1) eligibility to procure
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
employment generally, (2) ability to earn wages, (3) ability to hold a job
obtained, and (4) capacity to perform the work in the job in which the
worker is engaged.
7. Workers’ Compensation: Words and Phrases. A worker who, solely
because of his or her injury, is unable to perform substantial amounts
of labor, either in his or her particular line of work, or in any other for
which he or she would be fitted except for the injury, is totally disabled
within the meaning of the workers’ compensation law.
8. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), the three types of final orders that an appellate court
may review are (1) an order that affects a substantial right and that
determines the action and prevents a judgment, (2) an order that affects
a substantial right made during a special proceeding, and (3) an order
that affects a substantial right made on summary application in an action
after a judgment is rendered.
9. Workers’ Compensation: Final Orders. A workers’ compensation case
is a special proceeding.
10. Final Orders: Appeal and Error. A substantial right is an essential
legal right, not a mere technical right. A substantial right is affected if
the order affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to the appellant prior to the order
from which the appeal is taken.
11. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
12. Final Orders: Appeal and Error. A substantial right under Neb. Rev.
Stat. § 25-1902 (Reissue 2016) is not affected when that right can be
effectively vindicated in an appeal from the final judgment.
13. Jurisdiction: States. Specific personal jurisdiction requires that the
defendant purposefully avails itself of the privilege of conducting activi-
ties within the forum state, thus invoking the benefits and protections of
its laws.
14. ____: ____. To exercise specific jurisdiction, the plaintiff’s cause of
action must arise out of, or be related to, the defendant’s contacts with
Nebraska.
15. ____: ____. In order to give rise to specific personal jurisdiction, the
defendant’s conduct and connection with the forum state must be such
that he or she should reasonably anticipate being haled into court there.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell,
P.C., L.L.O., for appellant.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
James R. Walz for appellee Juan Martinez.
Jason W. Grams and Stacy L. Morris, of Lamson, Dugan &
Murray, L.L.P., for appellee Texas Mutual Insurance Company.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The Nebraska Workers’ Compensation Court concluded
that CMR Construction & Roofing of Texas, LLC (CMR),
was a statutory employer under Neb. Rev. Stat. § 48-116
(Reissue 2010) of the Nebraska Workers’ Compensation Act,1
thus requiring it to compensate Juan Martinez for injuries sus-
tained while acting as an employee of Rene Menjivar, a CMR
subcontractor.
CMR challenges the compensation court’s determination
under § 48-116 of what constitutes the term “employer” and
alleges the compensation court lacked personal jurisdiction
over Texas Mutual Insurance Company (Texas Mutual), a
workers’ compensation insurance company domiciled and hav-
ing its principal place of business in Texas. CMR also chal-
lenges the compensation court’s findings regarding earning
capacity, attorney fees, and entitlement to future medical care.
We affirm.
BACKGROUND
CMR is engaged in the repair and replacement of the roofs
of single family dwellings anywhere in the continental United
States, corresponding to the aftermath of severe weather condi-
tions. In 2014, CMR engaged Menjivar as a subcontractor and
at that time, required Menjivar to produce workers’ compensa-
tion insurance, which CMR verified. CMR further required
Menjivar to add CMR to its workers’ compensation policy and
produce a certificate that demonstrated CMR would be notified
1
Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2010 & Cum. Supp. 2014).
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
by Menjivar’s insurance carrier, Texas Mutual, before the can-
cellation or expiration of the policy.
CMR agreed to repair a residential roof in Omaha, Nebraska.
CMR subsequently assigned the roofing project to Menjivar.
On March 12, 2015, Martinez, employed by Menjivar, was
working on the roof when he fell two stories and suffered sig-
nificant injuries to his back, hip, and legs. Martinez was treated
at various medical facilities in Omaha.
On December 11, 2015, Martinez initiated an action in the
compensation court to recover for his injuries. Martinez moved
for summary judgment, and in the course of litigating that
motion, Martinez and CMR agreed that Menjivar previously
possessed valid workers’ compensation insurance through
Texas Mutual, but that the policy of insurance was canceled on
December 16, 2014, due to nonpayment.
On August 17, 2016, following a motion for summary
judgment, the compensation court found that CMR was the
statutory employer of Martinez. The court specifically noted
in response to Martinez’ third set of requests for admissions,
that CMR admitted it had “created or carried into operation
a ‘scheme, artifice, or device’ as contemplated by Neb. Rev.
Stat. §48-116” to avoid employer liability. On September 6,
CMR sought an interlocutory appeal seeking to reverse the
employer determination, which on October 27, in case No.
A-16-857, was summarily dismissed by the Nebraska Court
of Appeals.
During the course of the workers’ compensation proceed-
ings, Texas Mutual sought to be dismissed from the suit on the
basis that the court lacked personal jurisdiction over it. CMR
offered the affidavit of its attorney in opposition to the motion
to dismiss filed by Texas Mutual. That affidavit contained the
policy of insurance between Menjivar and Texas Mutual, with
CMR added as an additional insured. The policy of insurance
shows that Texas Mutual’s company office is in Austin, Texas,
and further that Texas Mutual issued the policy to CMR, whose
office was in Haltom City, Texas.
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
Evidence in the record demonstrates that Texas Mutual is
a creation of the Texas Legislature as an insurer of last resort
and does not provide insurance or do business in the State of
Nebraska. The record further demonstrates that in item 3(A)
of the policy procured in this case, Texas is the only state in
which benefits of the workers’ compensation insurance applies.
The court found that the evidence offered by CMR failed to
establish a prima facie case of personal jurisdiction.
Martinez also opposed Texas Mutual’s motion to dismiss
and offered exhibit 35, a workers’ compensation insurance
policy between Menjivar and Texas Mutual. Exhibit 35 showed
that a policy of workers’ compensation insurance was issued
to Menjivar at an address in Houston, Texas. Texas Mutual’s
address was noted to be in Austin. The court again found that
this exhibit did nothing to show the existence of any contacts
between Texas Mutual and Nebraska.
The court noted that Texas Mutual had initiated a declara-
tory action in the State of Texas, asking a Texas court to deter-
mine whether the policy of workers’ compensation insurance
issued by Texas Mutual afforded coverage for the injuries suf-
fered by Martinez. The compensation court ultimately found
that Texas was the proper forum to decide a dispute between
two Texas companies involving a policy of workers’ com-
pensation insurance that was issued in Texas, and it therefore
granted Texas Mutual’s motion to dismiss. On September 20,
2017, CMR filed a second interlocutory appeal with the Court
of Appeals, seeking review of the trial court’s finding that it
lacked personal jurisdiction over Texas Mutual. On October
27, in case No. A-17-1020, the Court of Appeals dismissed the
appeal without opinion.
On January 12, 2017, the compensation court held a hearing
on Martinez’ second motion for partial summary judgment, in
which Martinez sought a finding and award of, among other
things, attorney fees. On February 10, the compensation court
entered partial summary judgment in favor of Martinez, find-
ing that Martinez was entitled to “a reasonable attorney’s fee
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
pursuant to Neb. Rev. Stat. § 48-125 for [CMR’s] failure to pay
the medical bill from [a medical center in Omaha] within thirty
days of its receipt.”
On February 13, 2018, the compensation court held a trial
in this case. The court issued its award on March 23. During
trial, the court resolved the outstanding issues of the nature and
extent of the injuries Martinez suffered on March 12, 2015, the
extent of Martinez’ entitlement to temporary and permanent
disability benefits, CMR’s liability for medical bills incurred
by Martinez, and Martinez’ entitlement to an award of future
medical care.
The court found that Martinez was entitled to temporary
total disability benefits for the 3 months he was off work after
the accident. The court relied on the opinion of the physician
who treated Martinez’ femur fracture, as well as the testimony
of Martinez, to find that Martinez was temporarily totally
disabled from and including March 12 through and including
June 12, 2015, a period of 13.2857 weeks. The court found
that Martinez was entitled to temporary total disability benefits
at the weekly rate of $761, which was the maximum rate for
injuries in 2015.
Finding insufficient evidence, the compensation court
declined to award Martinez temporary partial disability bene-
fits. The court found that Martinez had reached maximum med-
ical improvement from all of his injuries on October 12, 2016.
Relying on the testimony of Dr. Sunil Bansal, a physician who
examined Martinez, the court further found that Martinez suf-
fered permanent impairment to his whole body due to his neck,
head, and back injuries.
Having considered all of the evidence, including the opin-
ion of the agreed-upon vocational rehabilitation counselor, the
court found that Martinez had suffered an 80-percent loss of
earning capacity. Based upon that factual finding, the court
found that Martinez was entitled to permanent partial disability
benefits at the weekly rate of $613.34, starting June 13, 2015,
and continuing for 286.7143 weeks.
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
CMR was ordered to pay a total of $52,980.58 in medical
and physical therapy expenses. The court further found that
Martinez was entitled to an award of future medical care for
his neck injury only.
ASSIGNMENTS OF ERROR
CMR assigns, consolidated and restated, that the compen-
sation court erred in (1) finding that CMR was the statutory
employer of Martinez and that therefore CMR was liable for
the payment of any awarded indemnity, medical, or other
benefit to Martinez; (2) awarding Martinez an excessive loss
of earning capacity; (3) finding that CMR was liable for the
payment of attorney fees to Martinez for unpaid medical bills
related to Martinez’ injuries; (4) finding that Martinez is enti-
tled to future medical care; and (5) finding that the court lacked
personal jurisdiction over Texas Mutual.
STANDARD OF REVIEW
[1] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside only upon the grounds
that (1) the compensation court acted without or in excess of
its powers; (2) the judgment, order, or award was procured
by fraud; (3) there is not sufficient competent evidence in the
record to warrant the making of the judgment, order, or award;
or (4) the findings of fact by the compensation court do not
support the order or award.2
[2,3] An appellate court is obligated in workers’ compensa-
tion cases to make its own determinations as to questions of
law.3 Findings of fact made by the Workers’ Compensation
Court after review have the same force and effect as a jury ver-
dict and will not be set aside unless clearly erroneous.4
2
See Buckingham v. Creighton University, 248 Neb. 821, 539 N.W.2d 646
(1995). See, also, § 48-185.
3
Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).
4
Id.
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
[4] As the trier of fact, the Workers’ Compensation Court is
the sole judge of the credibility of witnesses and the weight to
be given their testimony.5
V. ANALYSIS
CMR’s Liability for
Martinez’ Injuries.
CMR assigns that it was not liable for Martinez’ injuries.
CMR argues that it is not a statutory employer under § 48-116,
because it had taken all requisite steps to ensure that Menjivar,
its subcontractor, had proper workers’ compensation coverage
for its employees and therefore was excluded from the status
of a statutory employer under § 48-116.
The Nebraska Workers’ Compensation Act applies to every
nonresident employer performing work in the state who
employs one or more employees in the regular trade, busi-
ness, profession, or vocation of such employer.6 Workers’
compensation coverage must be obtained from an insurance
company licensed to provide workers’ compensation coverage
in Nebraska, unless the employer is authorized to self-insure
workers’ compensation liability under Nebraska law.7 The
record contains no cooperative agreements showing Nebraska
was required to honor any workers’ compensation coverage
provided by state funds in other states.
In Nebraska, principal employers can be held jointly and
severally liable with the immediate employer for uninsured
injuries to the immediate employer’s workers.8 Section 48-116
provides:
Any person, firm, or corporation creating or carrying
into operation any scheme, artifice, or device to enable
him or her, them, or it to execute work without being
5
Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).
6
§ 48-106(1).
7
§ 48-106(6).
8
See § 48-116.
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
responsible to the workers for the provisions of the
Nebraska Workers’ Compensation Act shall be included
in the term employer, and with the immediate employer
shall be jointly and severally liable to pay the compensa-
tion herein provided for and be subject to all the provi-
sions of such act. This section, however, shall not be
construed as applying to . . . a contractor, who, in good
faith, lets to a subcontractor a portion of his or her con-
tract, if the owner or principal contractor, as the case may
be, requires the contractor or subcontractor, respectively,
to procure a policy or policies of insurance from an insur-
ance company licensed to write such insurance in this
state . . . .
The purpose of statutes such as § 48-116 is to protect
employees of “irresponsible and uninsured subcontractors by
imposing ultimate liability on the presumably responsible prin-
cipal contractor, which has it within its power, in choosing
subcontractors, to pass upon their responsibility and insist
upon appropriate compensation protection for their workers.”9
Another important reason for statutes like § 48-116 is to pre-
vent evasion of compensation coverage by the subcontracting
of the employer’s normal work.10
[5] When a contractor fails to require a subcontractor to
carry workers’ compensation insurance and an employee of the
latter sustains a job-related injury, the contractor is a statutory
employer and, with the immediate employer subcontractor,
is jointly and severally liable to pay compensation under the
terms of the Nebraska Workers’ Compensation Act.11
CMR argues that it does not qualify as a statutory employer,
because it required its subcontractor, Menjivar, to obtain work-
ers’ compensation insurance. In support of this argument, CMR
9
6 Arthur Larson et al., Larson’s Workers’ Compensation Law § 70.04 at
70-6 (2017).
10
See id.
11
See Rogers v. Hansen, 211 Neb. 132, 317 N.W.2d 905 (1982).
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
offered various affidavits, including that of both its comptrol-
ler and its general manager, showing that it required Menjivar
to present valid workers’ compensation insurance. Although
CMR’s comptroller verified that Menjivar had workers’ com-
pensation insurance in July 2014, the record lacks any indica-
tion that he checked the status of the policy immediately before
commencing the roofing project in March 2015.
CMR did require that it be added as an additional insured on
the Menjivar policy and that in the event the insurance policy
was canceled before the expiration date of the policy, the insur-
ance company, Texas Mutual, would provide notice to CMR.
CMR’s general manager indicated that it is a normal business
practice of CMR to list the subcontractor’s insurance policy
expiration date next to its name on a project board. He noted
that he and CMR’s comptroller reviewed the subcontractor’s
listed insurance expiration date prior to allowing the subcon-
tractor to begin work on the project. CMR contends that these
steps are designed to require a subcontractor to carry workers’
compensation insurance.
In arguing that it was exempt under § 48-116, CMR relies
on the fact that it took the above-listed steps to require
Menjivar to provide insurance. CMR contends that beyond
merely incorporating the requirement into a contractual provi-
sion in the subcontractor agreement, an issue that we addressed
in Hiestand v. Ristau,12 CMR took the additional steps of veri-
fying that a policy had been obtained, recording the expiration
date of the policy, and requiring that CMR be added as an
additional insured.
CMR’s argument fails for three reasons. First, it is undis-
puted that CMR, in response to a request for admission from
Martinez in regard to this action, affirmatively admitted that
it had “created or carried into operation a ‘scheme, artifice, or
device’ as contemplated by Neb. Rev. Stat. §48-116” to evade
workers’ compensation coverage requirements. This admission
12
Hiestand v. Ristau, 135 Neb. 881, 284 N.W. 756 (1939).
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
was noted by the compensation court, and under court rules,
the result in this case cannot be avoided. Under Neb. Ct. R.
Disc. § 6-336(b), “[a]ny matter admitted under this rule is con-
clusively established . . . .” Therefore, we must treat CMR’s
admission that it “created or carried into operation a ‘scheme,
artifice, or device’ as contemplated by Neb. Rev. Stat. §48-116”
as conclusively established.
Second, even if we were to disregard such an admission,
it is clear from the record that CMR is Martinez’ statutory
employer. The record demonstrates that CMR engaged in a
contractual relationship by agreeing to the roof repair proj-
ect. Had CMR completed the work itself, it would have been
required to provide workers’ compensation insurance under the
Nebraska Workers’ Compensation Act. However, CMR sub-
contracted the roof project to Menjivar, a subcontractor with
whom CMR had an established relationship.
The record indicates that CMR confirmed Menjivar had
workers’ compensation insurance in July 2014 and that it
made an attempt to ensure that it would be made aware of the
cancellation of such insurance. But the record also indicates
that Menjivar’s policy with Texas Mutual was nevertheless
canceled without notice being provided to CMR and that CMR
did not verify the status of the policy before beginning the
work in March 2015. Hence, CMR failed to meet its § 48-116
obligations.
Third, the record shows that Texas Mutual was never autho-
rized by the the compensation court, pursuant to § 48-146,
to issue insurance for workers’ compensation purposes in
Nebraska. As Texas Mutual contended, the record shows that
the Texas Mutual policy provided coverage for workers’ com-
pensation benefits for individuals injured only in the State of
Texas. Further, the certificate provided by Texas Mutual spe-
cifically denoted the word “NONE” under the section identify-
ing states where the coverage would extend.
According to the affidavit of the senior manager of cor-
porate underwriting at Texas Mutual, Texas Mutual is not
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
authorized to provide workers’ compensation insurance in any
jurisdiction other than Texas. Further, the policy specifically
states that “[t]his policy does not provide ‘other states’ insur-
ance coverage.”
Even if Menjivar had not allowed his insurance with Texas
Mutual to be canceled, under Nebraska law, Menjivar—and
in turn CMR—would still have been jointly and severally
liable for compensating injured employees, because Menjivar
was executing work without being responsible to the workers
for the provisions of the Nebraska Workers’ Compensation
Act. Specifically, under the workers’ compensation statutes,
Menjivar was engaging in covered work that required the
insurer to be authorized to transact the business of workers’
compensation insurance in this state.13 The failure of CMR to
follow the laws of this state with regard to workers’ compensa-
tion means that CMR fell well short of requiring its subcon-
tractor to carry valid workers’ compensation insurance.
The decision of the compensation court finding that CMR
was the statutory employer of Martinez is correct. As the
statutory employer, CMR is subject to all the provisions of the
Nebraska Workers’ Compensation Act with regard to Martinez’
March 12, 2015, work accident, and is jointly and severally
liable to pay the compensation provided for thereunder.
CMR’s Claim of Excessive
Earning Capacity.
CMR next assigns that the court erred in the amount of its
award for loss of earning capacity. CMR grounds this argument
on the fact that because Martinez “worked in similar, albeit
lighter, jobs and earned equal or similar wages,” he does not
qualify as being 80 percent disabled.14
A judgment, order, or award of the compensation court may
be modified, reversed, or set aside only upon the grounds that
13
See § 48-146.
14
Brief for appellant at 23.
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
Cite as 302 Neb. 618
(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 judgment, order, or award;
or (4) the findings of fact by the compensation court do not
support the order or award.15
An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.16
However, findings of fact made by the Workers’ Compensation
Court after review have the same force and effect as a jury ver-
dict and will not be set aside unless clearly erroneous.17
[6] We held in Sidel v. Travelers Ins. Co.18 that when deter-
mining a loss of earning capacity for an injured worker, the
four factors to consider under § 48-121 are the worker’s (1)
eligibility to procure employment generally, (2) ability to earn
wages, (3) ability to hold a job obtained, and (4) capacity to
perform the work in the job in which the worker is engaged.
Having found that Martinez had reached maximum medical
improvement, the court assessed Martinez’ permanent dis-
ability. The court found that neck, head, and back injuries like
those suffered by Martinez in this case were injuries to the
body as a whole under § 48-121(2) and (3). For permanent
partial disability purposes, injuries to the body as a whole are
compensated based upon a loss of earning capacity.19 The court
noted that evidence of permanent impairment or permanent
physical restrictions was sufficient to establish a permanent
medical impairment for purposes of determining loss of earn-
ing capacity.
Bansal, Martinez’ medical expert, opined that Martinez had
both permanent impairment and permanent restrictions. The
15
Buckingham v. Creighton University, supra note 2. See, also, § 48-185.
16
Hull v. Aetna Ins. Co., supra note 3.
17
Id.
18
See Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).
19
Snyder v. IBP, inc., 235 Neb. 319, 455 N.W.2d 157 (1990).
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court noted that Martinez underwent a functional capacity
evaluation documenting that he could work only in the light
demand category. A physician hired by CMR to conduct a
review of Martinez’ medical records opined that Martinez did
not suffer permanent impairment and that he required no work
restrictions for his whole body injuries. The court noted that
CMR’s expert found Martinez had suffered a l5-percent impair-
ment to his left leg as a result of his left leg fractures. But the
court then found, based on Bansal’s opinion, that Martinez suf-
fered permanent impairment to his whole body due to his neck,
head, and back injuries.
The court noted that the vocational rehabilitation counselor
found Martinez was 100 percent disabled. However, it con-
ducted a thorough analysis of the factual circumstances and
applied the four factors of Sidel noted above to determine that
Martinez was only 80 percent disabled. The court then noted
that Martinez continued to work as a roofer, did many of the
job duties of a roofer, and was paid basically the same wages
he earned at the time of his injury. Based upon these facts,
the court found that Martinez can and does work as a roofer,
which is his only past form of employment. The court noted
that there were certainly jobs that Martinez could no longer
perform and accordingly determined that Martinez was 80
percent disabled.
[7] We have previously noted that a worker who, solely
because of his or her injury, is unable to perform substantial
amounts of labor, either in his or her particular line of work,
or in any other for which he or she would be fitted except for
the injury, is totally disabled within the meaning of the work-
ers’ compensation law.20 Here, Martinez is working in the
same field as when he was injured; however, he is now limited
in his ability to perform tasks, which CMR readily admitted
at oral argument by stating that Martinez performs “albeit
lighter [work].”
20
Craig v. American Community Stores Corp., 205 Neb. 286, 287 N.W.2d
426 (1980).
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MARTINEZ v. CMR CONSTR. & ROOFING OF TEXAS
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We hold that the compensation court’s findings of fact were
not clearly erroneous and that its ultimate conclusions of law
were supported by competent evidence. Therefore, CMR’s sec-
ond assignment of error is without merit.
Award of Attorney Fees.
CMR assigns that the compensation court erred in awarding
Martinez attorney fees. CMR claims that there was a reason-
able controversy with regard to CMR’s status as a statutory
employer, CMR’s liability, and the court’s determination that
Martinez suffered an 80-percent loss of earning capacity and
that the award of fees was therefore erroneous. Meanwhile,
Martinez argues that we lack jurisdiction to address this issue;
he contends that the compensation court’s February 10, 2017,
order regarding the second motion for partial summary judg-
ment and attorney fees was a final and appealable order,
because a benefit in the form of the fees had been conferred
and CMR failed to appeal from that benefit.
Martinez’ assertion regarding this court’s jurisdiction
is rooted in our decision in Jacobitz v. Aurora Co-op.21 In
Jacobitz, we held that a compensation court’s finding of a
compensable injury, or its rejection of an affirmative defense
without a determination of benefits, was not an appealable
order that affected an employer’s substantial right in a special
proceeding.
Martinez argues that under Jacobitz, the trial court’s award
of attorney fees conferred a benefit affecting a substantial
right for CMR and was therefore a final appealable order from
which CMR failed to appeal at the time it appealed from the
February 10, 2017, order for partial summary judgment. The
Court of Appeals dismissed CMR’s second appeal on October
26, 2017, noting that it lacked jurisdiction.
[8] CMR could have appealed from the award of attorney
fees at the time the fees were ordered only if the order award-
ing fees was final. Under Neb. Rev. Stat. § 25-1902 (Reissue
21
Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013).
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2016), the three types of final orders that an appellate court
may review are (1) an order that affects a substantial right
and that determines the action and prevents a judgment, (2)
an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right
made on summary application in an action after a judgment
is rendered.
[9] The requests for fees and the orders granting such
fees in this case were made pursuant to § 48-125, which is
contained within the workers’ compensation statutes. It is
well settled that a workers’ compensation case is a “special
proceeding.”22 Accordingly, we examine the February 10, 2017,
order granting Martinez’ request for attorney fees to determine
if such order affected a substantial right made in this special
proceeding.
[10-12] We have held:
“A substantial right is an essential legal right, not a mere
technical right. . . . A substantial right is affected if the
order affects the subject matter of the litigation, such
as diminishing a claim or defense that was available to
the appellant prior to the order from which the appeal
is taken.”23
Moreover, it is not enough that the right itself be substantial;
the effect of the order on that right must also be substantial.24
And a substantial right under § 25-1902 is not affected when
that right can be effectively vindicated in an appeal from the
final judgment.25 There is nothing here to suggest that the
award of attorney fees cannot be effectively vindicated on
appeal to this court.
22
Thompson v. Kiewit Constr. Co., 258 Neb. 323, 329, 603 N.W.2d 368, 372
(1999).
23
Id.
24
In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).
25
Id.
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In this case, the award of attorney fees does not affect the
subject matter of the litigation. Nor can it be said that the
award of attorney fees affected the substantive rights of the
parties. Rather, the attorney fees are closer to rules that regu-
late the conduct of employers or affect the remedy available.26
We conclude that the order granting fees was not final at the
time it was issued.
Having established that CMR could not have raised this
issue in its interlocutory appeal to the Court of Appeals, we
find that we have jurisdiction over this matter and turn to the
compensation court’s award of attorney fees. With regard to
attorney fees, a judgment, order, or award of the compensa-
tion 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 judgment,
order, or award; or (4) the findings of fact by the compensation
court do not support the order or award.27
Section 48-125 provides:
Whenever the employer refuses payment of compensation
or medical payments . . . for thirty days after injury or
neglects to pay medical payments . . . after thirty days’
notice has been given of the obligation for medical pay-
ments, and proceedings are held before the compensation
court, a reasonable attorney’s fee shall be allowed the
employee by the compensation court in all cases when the
employee receives an award.
We note that a statutory attorney fee provision is designed
to encourage private action to vindicate the rights granted by
26
See Midwest Grain Products v. Productization, 228 F.3d 784 (7th Cir.
2000). See, also, Furstenfeld v. Pepin, 23 Neb. Ct. App. 673, 875 N.W.2d 468
(2016); Frederick v. Seeba, 16 Neb. Ct. App. 373, 745 N.W.2d 342 (2008).
27
Buckingham v. Creighton University, supra note 2.
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the statutory scheme.28 Thus, the purpose of § 48-125 is to
provide an incentive to employers to pay the claims of injured
workers in a timely manner in order to prevent additional cost
to the employee accruing from litigation or late payment of
fees and interest.
CMR points to the trial court’s determination that CMR
was the statutory employer of Martinez and in turn argues
that where reasonable controversy exists between an employer
and an employee as to the employer’s liability, the employer
is not liable for a penalty for waiting time or for allowance
of attorney fees. This case, however, does not present such
a controversy.
Here, the compensation court determined that no reason-
able controversy existed as to CMR’s status as a statutory
employer or its liability as such an employer. This result is
evident, because even if CMR’s policy had not been canceled
prior to the commencement of work in March, Texas Mutual
was not authorized to operate as an insurance carrier providing
workers’ compensation insurance in this state and, therefore,
the policy did not meet the requirements under the Nebraska
Workers’ Compensation Act.
Further, as we have already noted, CMR, in providing
answers to Martinez’ request for admissions, conceded that
it “created or carried into operation a ‘scheme, artifice, or
device’ as contemplated by Neb. Rev. Stat. §48-116” in order
to avoid the requirement to maintain workers’ compensa-
tion insurance.
To deny fees in such a situation would shift the cost of liti-
gation onto the prevailing injured worker in a case involving
no reasonable controversy. Such a result would frustrate the
design and purpose of workers’ compensation and encourage
unscrupulous employers to litigate every claim for workers’
compensation in an attempt to avoid their statutorily pre-
scribed responsibility.
28
Black v. Brooks, 285 Neb. 440, 827 N.W.2d 256 (2013).
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CMR’s assignment of error regarding attorney fees is with-
out merit.
Martinez’ Entitlement to
Future Medical Care.
CMR assigned that the compensation court erred in finding
that Martinez was entitled to future medical care, but argues
only that “Martinez has clearly reached maximum medical
improvement from his injuries, and is able to secure and hold
gainful employment; the exact same employment that Martinez
held prior to his injury.”29
We address this issue with an eye toward our standard of
review in workers’ compensation cases, recognizing that a
judgment, order, or award of the compensation court may be
modified, reversed, or set aside only upon the grounds that (1)
the compensation court acted without or in excess of its pow-
ers; (2) the judgment, order, or award was procured by fraud;
(3) there is not sufficient competent evidence in the record to
warrant the making of the judgment, order, or award; or (4) the
findings of fact by the compensation court do not support the
order or award.30
An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.31
However, findings of fact made by the compensation court
after review have the same force and effect as a jury verdict
and will not be set aside unless clearly erroneous.32
Under § 48-120(1)(a), “[t]he employer is liable for all
reasonable medical, surgical, and hospital services . . . .”
(Emphasis supplied.) The Court of Appeals has noted that
before an order for future medical benefits may be entered
pursuant to § 48-120(1)(a), there must be explicit evidence that
29
Brief for appellant at 25-26.
30
Buckingham v. Creighton University, supra note 2. See, also, § 48-185.
31
Hull v. Aetna Ins. Co., supra note 3.
32
Id.
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future medical treatment is reasonably necessary to relieve the
injured worker from the effects of the work-related injury.33
Here, the district court found that Martinez had met his bur-
den of proof and persuasion on this issue. The court relied on
Bansal’s opinion, which was that Martinez will need epidural
steroid injections, physical therapy, a transcutaneous electrical
nerve stimulation or “TENS” unit, and an evaluation with a
pain specialist for his neck. The court found that Martinez was
entitled to an award of future medical care only for his neck
injury. The court noted that Martinez was not entitled to future
medical care for any of his other injuries, because no doctor
recommended additional care for those injuries.
CMR asserts that Martinez’ return to work prevents him
from obtaining an award for future medical care. This asser-
tion is incorrect: § 48-120(1)(a) provides in pertinent part that
“[t]he employer is liable for all reasonable medical, surgical,
and hospital services . . . which are required by the nature of
the injury and which will relieve pain or promote and has-
ten the employee’s restoration to health and employment . .
. .” (Emphasis supplied.) The Legislature’s use of the word
“or,” in the context of § 48-120, indicates that the employer
is liable for reasonable medical expenses to both relieve
pain and promote and hasten the restoration of health and
employment.
In light of our standard of review, we find that CMR’s
assignment of error is without merit.
Personal Jurisdiction
Over Texas Mutual.
Finally, CMR assigns that the court erred in dismissing
Texas Mutual for lack of personal jurisdiction.
An appellate court examines the question of whether the
nonmoving party has established a prima facie case of personal
33
Adams v. Cargill Meat Solutions, 17 Neb. Ct. App. 708, 774 N.W.2d 761
(2009).
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jurisdiction de novo.34 In reviewing the grant of a motion to
dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual
conflicts in favor of that party.35
In order for the compensation court to bind Texas Mutual to
its decision, the court must have personal jurisdiction. There
are two types of personal jurisdiction that courts may assert
over a defendant: general personal jurisdiction and specific
personal jurisdiction.
[13-15] A court has general jurisdiction over a party when
the party’s contact with the forum is so extensive as to be
continuous and systematic, such that the defendant would be
“‘essentially at home’” in the court’s jurisdiction.36 Specific
personal jurisdiction requires that “the defendant purposefully
avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its
laws.”37 To exercise specific jurisdiction, the plaintiff’s cause
of action must arise out of, or be related to, the defendant’s
contacts with Nebraska.38 In regard to the activities giving rise
to specific personal jurisdiction, the U.S. Supreme Court has
stated that “the defendant’s conduct and connection with the
forum State [must be] such that he should reasonably anticipate
being haled into court there.”39
As noted by the parties, the facts of this case clearly do
not give rise to general jurisdiction. Therefore, our discussion
turns to whether Texas Mutual purposefully availed itself of
34
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014).
35
Id.
36
Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S. Ct. 746, 187 L. Ed. 2d
624 (2014).
37
Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283
(1958).
38
VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
39
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S. Ct.
559, 62 L. Ed. 2d 490 (1980).
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the privilege of conducting activities within this state, thus
invoking the benefits and protections of its laws giving rise to
specific personal jurisdiction.
CMR argues that Texas Mutual availed itself of Nebraska
law when it entered into an insurance contract with a business
it knew operated across state lines. CMR relies on the lan-
guage contained in the liability policy under the section enti-
tled, “Limited Reimbursement for Texas Employees Injured in
Other Jurisdictions.” However, the information page addressed
to CMR from Texas Mutual indicates under item 3(c), entitled
“Other States Insurance,” the word “NONE” is clearly stated.
Despite the fact that Nebraska is not mentioned anywhere in
the insurance agreement or certificate, CMR proposes that
because Texas Mutual contemplated that insured parties may
cross state lines for work, that fact gives rise to personal
jurisdiction. CMR contends that Nebraska case law is sparse
with regard to minimum contacts and out-of-state insurance
companies, directing our attention to three cases CMR asserts
are pertinent.
First, CMR directs us to Peay v. BellSouth Medical
Assistance Plan.40 Peay involved a Georgia employer’s medical
assistance insurance plan and the plan’s Alabama administrator,
which provided benefits to one of the plaintiffs, an employee
of the defendant’s company, and the plaintiff’s ward. The
insurance company operated in nine southeastern states. The
ward received care in Utah for which the insurance company
refused to pay for the full cost of treatment. The plaintiff filed
suit in Utah, and the insurance company countered that Utah
lacked personal jurisdiction. The U.S. Court of Appeals for
the 10th Circuit disagreed, holding that because the company
had precertified treatment at a Utah hospital and paid for a
portion of the care, it had established minimum contacts with
the jurisdiction.
40
Peay v. BellSouth Medical Assistance Plan, 205 F.3d 1206 (10th Cir.
2000).
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In Nieves v. Houston Industries, Inc.,41 an insured employee
moved to Louisiana from Texas, maintaining the insurance
policy with her company following her departure from Texas.
After a dispute arose, the employee filed suit in Louisiana.
The court found that because several claims had already
been paid by the company, personal jurisdiction had been
established.
Lastly, CMR relies on Hirsch v. Blue Cross, Blue Shield
of Kansas City.42 In Hirsch, the U.S. Court of Appeals for
the Ninth Circuit held that an out-of-state insurance company
“purposefully availed” itself of the jurisdiction of California,
based on the minimum contacts established by evidence that
the insurance company had freely negotiated the enrollment
agreement with the insured company, knowing that the insured
company employed people nationwide.43 CMR contends that
Texas Mutual similarly knew that Menjivar and CMR oper-
ated in states outside of Texas and had agreed to insure their
workers for injuries occurring in other states. We find CMR’s
authority for its argument wholly unpersuasive.
In Peay v. BellSouth Medical Assistance Plan, because the
insurance company had precertified treatment at a Utah hospi-
tal and paid for a portion of the care, the 10th Circuit held that
it had established minimum contacts with the jurisdiction. The
same is true of Nieves v. Houston Industries, Inc., wherein the
court again found that several claims had already been paid by
the company, giving rise to personal jurisdiction.
In this case, the record is void of any payments made by
Texas Mutual to any claims arising in the State of Nebraska.
Therefore, even if we were to acknowledge the persuasive
authority of these federal cases, they are inapplicable to the
facts of this case.
41
Nieves v. Houston Industries, Inc., 771 F. Supp. 159 (M.D. La. 1991).
42
Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474 (9th Cir.
1986).
43
Id. at 1480.
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Texas Mutual, however, directs our attention to Brunkhardt
v. Mountain West Farm Bureau Mut. Ins. Co.,44 in which we
indicated that “[u]nder a personal jurisdiction analysis, the
unilateral activity of those who claim some relationship with a
nonresident defendant cannot satisfy the requirement of contact
with the forum state.” Additionally, when an insured travels
to another state, his or her presence in the state is unilateral
and does not serve to create purposeful contacts between the
insurer and the state. Further, an insurance company’s mere act
of insuring a person who might travel to a nearby state is insuf-
ficient to find that the insurer purposely directed its activities
at the forum state.
Here, Texas Mutual insured Menjivar and listed CMR as
an additional insured. While the policy contains a scheme of
limited coverage for injuries occurring outside of Texas, the
policy and information page contain no information listing
or indicating coverage in Nebraska. The record is clear that
Texas Mutual does not solicit business from Nebraska, has
never maintained an office in Nebraska, is not an authorized
insurance company in Nebraska, is a creation of the Texas
Legislature, and provides coverage for Texas claims only.
Further, the policy issued to CMR lists the insured’s address as
“4308 Garland Dr, Haltom City, TX.” The record demonstrates
that according to item 3(A) of the policy, Texas is the only
state to which part one of the workers’ compensation insurance
applies. Finally, as noted above, the record does not demon-
strate that in regard to this case, Texas Mutual paid any claim
originating in Nebraska.
Therefore, we affirm the decision of the compensation court
in dismissing Texas Mutual for lack of jurisdiction.
CONCLUSION
The compensation court did not err in finding that CMR
was the statutory employer of Martinez and in imposing
44
Brunkhardt v. Mountain West Farm Bureau Mut. Ins., 269 Neb. 222, 227,
691 N.W.2d 147, 152 (2005).
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liability on CMR. Additionally, we agree with the compensa-
tion court’s determination that it lacked personal jurisdiction
over Texas Mutual. Under our deferential standard of review,
we find that the court did not err in awarding Martinez attor-
ney fees and future medical care, as well as determining that
Martinez had sustained an 80-percent loss of earning capacity.
We affirm.
A ffirmed.