Hostetler v. First State Bank Nebraska

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/20/2016 09:09 AM CST
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415Lisa Hostetler, appellee, v. First State Bank
Nebraska and A merican Guarantee
& Liability, appellants.
___ N.W.2d ___
Filed December 20, 2016. No. A-16-220.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify,
reverse, or set aside a decision from the Workers’ Compensation Court
only when (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 evidence in the record to warrant the making of
the order, judgment, or award; or (4) the findings of fact by the compen-
sation court do not support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or
set aside a judgment of the Workers’ Compensation Court, the find-
ings of fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
4. Workers’ Compensation: Evidence: Appeal and Error. Admission of
evidence is within the discretion of the Workers’ Compensation Court,
whose determination in this regard will not be reversed upon appeal
absent an abuse of discretion.
5. Workers’ Compensation: Rules of Evidence: Due Process. The
Workers’ Compensation Court is not bound by the usual common-law or
statutory rules of evidence, but its discretion to admit evidence is subject
to the limits on constitutional due process.
6. Workers’ Compensation. Workers’ Comp. Ct. R. of Proc. 42(E)
(2015) specifically provides that the parties cannot attempt to influ-
ence or control the meeting place, the evaluation’s outcome, or the
vocational rehabilitation counselor’s recommendations, but that the
employee can.
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 4157. ____. Under the odd-lot doctrine, total disability may be found in the
case of workers who, while not altogether incapacitated for work, are
so handicapped that they will not be employed regularly in any well-
known branch of the labor market. The essence of the test is the prob-
able dependability with which a claimant can sell his or her services
in a competitive labor market, undistorted by such factors as business
booms, sympathy of a particular employer or friends, temporary good
luck, or the superhuman efforts of the claimant to rise above his or her
crippling handicaps.
8. Workers’ Compensation: Judgments: Appeal and Error. Whether
an employee is totally and permanently disabled is a question of fact,
and when testing the trial judge’s findings of fact, an appellate court
considers the evidence in the light most favorable to the success-
ful party.
9. Trial: Witnesses. As the trier of fact, the trial judge determines the cred-
ibility of the witnesses and the weight to give their testimony.
10. Workers’ Compensation: Words and Phrases. Total and permanent
disability contemplates the inability of the worker to perform any work
which he or she has the experience or capacity to perform.
11. ____: ____. Total disability does not mean a state of absolute helpless-
ness. It means that because of an injury, (1) a worker cannot earn wages
in the same kind of work, or work of a similar nature, that he or she
was trained for or accustomed to perform or (2) the worker cannot earn
wages for any other kind of work which a person of his or her mentality
and attainments could do.
Appeal from the Workers’ Compensation Court: Laureen K.
Van Norman, Judge. Affirmed.
Patrick J. Mack and Gregory D. Worth, of McAnany, Van
Cleave & Phillips, P.A., for appellants.
Franklin E. Miner, of Miner, Scholz & Dike, P.C., L.L.O.,
for appellee.
Inbody and Pirtle, Judges, and McCormack, Retired Justice.
Inbody, Judge.
INTRODUCTION
First State Bank Nebraska (FSBN) and its insurance car-
rier, American Guarantee & Liability (American), appeal the
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415Nebraska Workers’ Compensation Court’s determination that
Lisa Hostetler was an odd-lot worker and was totally and
permanently disabled. FSBN and American also contend the
trial court failed to sustain its objection to certain pages of
the vocational counselor’s report, claiming the report was
prejudiced because Hostetler’s counsel’s letter to the vocational
counselor violated the Nebraska Workers’ Compensation Court
rules of procedure, specifically Workers’ Comp. Ct. R. of Proc.
42(E) (2015).
STATEMENT OF FACTS
Hostetler was employed by FSBN as a loan officer on
April 5, 2013, when she was walking down the stairs at her
workplace and slipped and fell, sustaining an injury to her
coccyx (tailbone) and sacral fractures at S-5. As a result of the
incident, Hostetler sought treatment from a number of physi-
cians—trying a variety of pain medications, injections, modali-
ties, and treatments—with some pain alleviation.
At trial, Hostetler testified that her job was done primarily
while sitting and that initially after the incident, she would
work 7 hours per day. Hostetler also testified that while
she was working after the injury, sitting continued to be
unpleasant, and that although the prescribed pain medications
worked well, they made her “foggy” and eventually lost their
effectiveness. Specifically, Hostetler testified that the medica-
tions interfered with her ability to perform her job functions,
because she made mistakes, made technical errors, and took
three to four times longer to complete projects. Hostetler stated
that she would try different methods to decrease her back pain,
including lying down at breaks, getting up every 20 to 30
minutes, sitting on either an icepack or a doughnut-shaped
pillow, sitting forward, sitting on one leg or the other, and
using a “standing desk” that FSBN purchased for her, but she
did not have lasting relief. Hostetler indicated that in January
2015, Dr. Peter Piperis restricted her workday to 4 hours per
day. Hostetler testified that FSBN is now accommodating
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415her needs with a part-time job. However, Hostetler stated her
concern that if FSBN changes ownership again, as it has four
times since she has been employed there, they may not be
as accommodating.
On February 3, 2015, Hostetler participated in a func-
tional capacity evaluation (FCE). The findings provided that
Hostetler’s most significant restriction is sitting and that she
is able to sit for 1- to 2-hour intervals for a total sitting time
of 6 to 7 hours throughout the 8-hour workday, so long as
she can change positions periodically. Drs. Chris Cornett and
Piperis, two of Hostetler’s treating physicians, adopted the
FCE. However, Dr. Piperis recommended that Hostetler work
no more than 4 hours per day.
The parties agreed upon Lisa Porter as a vocational coun-
selor to provide a loss of earning capacity evaluation and opin-
ion. Porter met with Hostetler, reviewed the FCE, and reviewed
the opinions of Drs. Cornett, Piperis, and D.M. Gammel, the
doctor who performed a medical examination on behalf of
FSBN and American. Porter’s reports of June 16 and August
25, 2015, determined Hostetler sustained the following losses:
a 15-percent loss of earning capacity, based on the FCE and Dr.
Cornett’s determinations; a 0-percent loss of earning capacity,
based on Dr. Gammel’s determination; and a 50- to 60-percent
loss of earning capacity, based on Dr. Piperis’ determina-
tion. Porter also provided that the parties should “feel free to
contact [her] if [the parties] should have any questions, con-
cerns[,] or comments regarding this report or of the opinions
contained herein.”
Hostetler’s counsel received and reviewed Porter’s eval­
uation, then wrote a letter to Porter on September 1, 2015,
stating:
After reviewing your August 25, 2015[,] addendum
to the [loss of earning capacity evaluation], I have to
ask if you can answer two additional questions given
the 50 to 60 percent [loss of earning capacity] you gave
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415in regards to the 4 hour work restrictions given by Dr.
Piperis. Please tell the parties whether 4 hours of work
per day constitutes not only suitable, but gainful employ-
ment given . . . Hostetler had been employed full time for
years prior to the April 5, 2013[,] accident. If you believe
4 hours of work per day is suitable and gainful employ-
ment by definition, please explain. Further, if you do
not believe 4 hours of work per day constitutes gainful
employment by its very definition, then is . . . Hostetler
odd lot permanently and totally disabled?
In response, on September 8, 2015, Porter sent a letter to
both parties, stating that based solely on Dr. Piperis’ restric-
tions to Hostetler working 4 hours per day and his opin-
ion, Hostetler “may indeed be considered an ‘odd-lot’ worker
post-injury.”
Hostetler also sought the opinion of rehabilitation spe-
cialist Patricia Conway to review and rebut Porter’s report.
Conway’s November 13, 2015, report indicated that Hostetler
sustained a 35-percent loss of earning capacity. Conway also
determined that Hostetler is an odd-lot worker based on Dr.
Piperis’ opinion, that she has either a 35- or 60-percent loss
of earning capacity based on Dr. Gammel’s opinion or the
FCE reports.
At trial, FSBN and American objected to Porter’s September
8, 2015, response to Hostetler’s counsel’s September 1 let-
ter. Specifically, FSBN and American objected to Porter’s
response, claiming the letter was produced in contravention
of compensation court rule 42(E), because the parties are
not to attempt to persuade or obtain a certain outcome from
Porter. The trial court overruled the objection. Additionally,
the trial court determined, based on Hostetler’s testimony at
trial and the opinions of the vocational counselors and Dr.
Piperis, that Hostetler was an odd-lot worker and was totally
and permanently disabled. FSBN and American have timely
appealed to this court.
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415ASSIGNMENTS OF ERROR
FSBN and American assign the trial court erred in deter-
mining that Hostetler was an odd-lot worker and was totally
and permanently disabled despite working nearly full time fol-
lowing the work injury. FSBN and American also assign that
the trial court erred when it failed to sustain their objection to
certain pages of the vocational counselor’s report, claiming that
those pages of the report were prejudiced because Hostetler’s
counsel’s letter to the vocational counselor violated compensa-
tion court rule 42(E).
STANDARD OF REVIEW
[1-3] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp.
2016), an appellate court may modify, reverse, or set aside a
decision from the Workers’ Compensation Court only when (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 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. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884
N.W.2d 124 (2016). In determining whether to affirm, modify,
reverse, or set aside a judgment of the Workers’ Compensation
Court, the findings of fact of the trial judge will not be dis-
turbed on appeal unless clearly wrong. See Pearson v. Archer-
Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154(2013). An appellate court is obligated in workers’ compensa-
tion cases to make its own determinations as to questions of
law. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883
N.W.2d 676 (2016).
[4] Admission of evidence is within the discretion of the
Workers’ Compensation Court, whose determination in this
regard will not be reversed upon appeal absent an abuse of
discretion. Tchikobava v. Albatross Express, 293 Neb. 223, 876
N.W.2d 610 (2016).
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415ANALYSIS
A dmission of Porter’s
September 8, 2015,
A ddendum Letter
FSBN and American claim the trial court erred in overrul-
ing its objection to Porter’s September 8, 2015, response to
Hostetler’s counsel’s September 1 letter, because it was pro-
cured in violation of compensation court rule 42(E). FSBN and
American contend that Hostetler’s counsel’s letter to Porter was
inappropriate contact, because its sole purpose was to influ-
ence Porter’s initial opinion, which did not indicate whether
Hostetler was an odd-lot employee.
[5] The Workers’ Compensation Court is not bound by
the usual common-law or statutory rules of evidence, but its
discretion to admit evidence is subject to the limits on consti-
tutional due process. Tchikobava v. Albatross Express, supra.Admission of evidence is within the discretion of the compen-
sation court, whose determination in this regard will not be
reversed upon appeal absent an abuse of discretion. Id.Compensation court rule 42(E) provides in part that “[t]he
parties, other than the employee, shall not attempt to influence
or to control the meeting place, the outcome of the evaluation,
or the recommendations of the vocational rehabilitation coun-
selor.” (Emphasis supplied.)
[6] Compensation court rule 42(E) specifically provides
that the “parties” cannot attempt to influence or control the
meeting place, the evaluation’s outcome, or the vocational
rehabilitation counselor’s recommendations, but that the
“employee” can. In this instance, Hostetler, as an employee,
sought additional information regarding the rehabilitation
counselor’s recommendations, and was allowed to do so
under rule 42(E).
Further, upon review of the letter written by Hostetler’s
counsel to Porter, which was also sent to FSBN and American,
it does not appear it was the letter’s intent to influence or
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415control the outcome or recommendations of Porter’s evalua-
tion. Rather, it appears Hostetler contacted Porter in accord­
ance with her invitation to “contact [her] if [the parties]
should have any questions, concerns[,] or comments regarding
this report or of the opinions contained herein.” Specifically,
Hostetler asked “if [Porter] can answer . . . additional ques-
tions” in considering Dr. Piperis’ restrictions for Hostetler.
(Emphasis supplied.) The language of the letter appears to
show that it was Hostetler’s counsel’s intent to receive fur-
ther instructions regarding whether Dr. Piperis’ opinion that
Hostetler be limited to a 4-hour workday would be suitable
and gainful employment; an explanation of why a 4-hour
workday might be considered suitable and gainful employ-
ment; and, if Hostetler is not considered suitably and gainfully
employed, whether she would now be described as “odd lot
permanently and totally disabled.” Such questions of clarifica-
tion provide no indication that Hostetler sought to influence or
control Porter’s recommendation, particularly as Porter had no
obligation to respond.
Moreover, Porter’s response did not indicate any bias, as
there appears to be no change to the original recommenda-
tion and opinion and as her response indicated that Hostetler
“may indeed be considered an ‘odd-lot worker post-injury
based solely on the medical opinion of Dr. . . . Piperis.”
(Emphasis supplied.)
Therefore, we conclude that the Workers’ Compensation
Court did not abuse its discretion admitting Porter’s September
8, 2015, letter addendum to her report, in response to Hostetler’s
counsel’s inquiry.
Trial Court’s Odd -Lot
Determination
FSBN and American contend the trial court erred in its
determination that Hostetler was an odd-lot worker and was
totally and permanently disabled because she is still able
to perform her job responsibilities and compete in the open
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Cite as 24 Neb. App. 415labor market. FSBN and American argue that even if Porter’s
September 8, 2015, letter is allowed into evidence, a 4-hour
workday restriction does not warrant a finding of an odd-lot
designation or a total and permanent disability.
[7] Under the odd-lot doctrine, total disability may be found
in the case of workers who, while not altogether incapacitated
for work, are so handicapped that they will not be employed
regularly in any well-known branch of the labor market. The
essence of the test is the probable dependability with which a
claimant can sell his or her services in a competitive labor mar-
ket, undistorted by such factors as business booms, sympathy
of a particular employer or friends, temporary good luck, or
the superhuman efforts of the claimant to rise above his or her
crippling handicaps. Lovelace v. City of Lincoln, 283 Neb. 12,
809 N.W.2d 505 (2012).
[8,9] Whether Hostetler is totally and permanently disabled
is a question of fact, and when testing the trial judge’s findings
of fact, we consider the evidence in the light most favorable to
the successful party. See, Money v. Tyrrell Flowers, 275 Neb.
602, 748 N.W.2d 49 (2008); Frauendorfer v. Lindsay Mfg. Co.,
263 Neb. 237, 639 N.W.2d 125 (2002). As the trier of fact, the
trial judge determines the credibility of the witnesses and the
weight to give their testimony. Id.[10,11] Total and permanent disability contemplates the
inability of the worker to perform any work which he or she
has the experience or capacity to perform. Frauendorfer v.
Lindsay Mfg. Co., supra. Total disability does not mean a state
of absolute helplessness. It means that because of an injury,
(1) a worker cannot earn wages in the same kind of work,
or work of a similar nature, that he or she was trained for or
accustomed to perform or (2) the worker cannot earn wages for
any other kind of work which a person of his or her mental-
ity and attainments could do. Money v. Tyrrell Flowers, supra;Frauendorfer v. Lindsay Mfg. Co., supra.Hostetler sought medical attention from a variety of doctors
and tried an array of pain medications, injections, modalities,
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HOSTETLER v. FIRST STATE BANK NEBRASKA
Cite as 24 Neb. App. 415and treatments, with no continued success. Hostetler appeared
to be diligent in her use of pain alleviation techniques through
the use of a standing desk, regular movement throughout the
workday, lying down on breaks, or the use of icepacks and
doughnut-shaped pillows, with limited alleviation. Hostetler’s
testimony at trial indicated that much of her work is sedentary
and is done while seated and that she continues to suffer pain,
discomfort, and difficulty in accomplishing required job tasks.
Dr. Piperis prescribed a 4-hour workday restriction, which con-
tinued at the time of trial. Considering the evidence in the light
most favorable to Hostetler and giving her the benefit of every
inference reasonably deducible from the evidence, we cannot
say that the trial judge erred in finding Hostetler totally and
permanently disabled.
CONCLUSION
The compensation court did not abuse its discretion in
admitting into evidence the vocational counselor’s letter adden-
dum to her report. Further, the trial court did not err in finding
that Hostetler was an odd-lot worker and was totally and per-
manently disabled.
A ffirmed.