Picard v. P & C Group 1

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www.nebraska.gov/apps-courts-epub/
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PICARD v. P & C GROUP 1
Cite as 27 Neb. Ct. App. 646
H alina Picard, appellee, v.
P & C Group 1, Inc.,
doing business asCamaco, LLC, and
H artford Fire Insurance
Company, appellants.
___ N.W.2d ___
Filed October 1, 2019. No. A-18-207.
1. Workers’ Compensation: Appeal and Error. An appellate court may
modify, reverse, or set aside a Workers’ Compensation Court decision
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 competent evidence in the record to warrant the
making of the order, judgment, or award; or (4) the findings of fact by
the compensation court do not support the order or award.
2. ____: ____. 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 which are clearly wrong in
light of the evidence.
3. Workers’ Compensation: Proof. A claimant is entitled to an award
under the Nebraska Workers’ Compensation Act for a work-related
injury disability if the claimant shows, by a preponderance of evidence,
that the claimant sustained the injury and disability proximately caused
by an accident which arose out of and in the course of the claimant’s
employment, even though a preexisting disability or condition had com-
bined with the present work-related injury to produce the disability for
which the claimant seeks an award.
4. Workers’ Compensation. To be apportionable, an impairment must
have been independently producing some degree of disability before
the accident, and must be continuing to operate as a source of disability
after the accident.
5. Workers’ Compensation: Words and Phrases. In terms of the test for
determining when apportionment is appropriate, the term “disability”
contemplates impairment of earning capacity, not functional disability.
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PICARD v. P & C GROUP 1
Cite as 27 Neb. Ct. App. 646
6. Workers’ Compensation. Absent a statute requiring apportionment, the
doctrine of apportionment is not applicable.
7. Workers’ Compensation: Intent. The principal purpose of the Nebraska
Workers’ Compensation Act is to provide an injured worker with prompt
relief from the adverse economic effects caused by a work-related injury
or occupational disease.
8. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures:
Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) authorizes a
50-percent penalty payment for waiting time involving delinquent pay-
ment of compensation and attorney fees, where there is no reasonable
controversy regarding an employee’s claim for workers’ compensation.
9. Workers’ Compensation: Attorney Fees. Whether a reasonable contro-
versy exists pertinent to Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) is
a question of fact.
10. Workers’ Compensation: Attorney Fees: Words and Phrases: Appeal
and Error. A reasonable controversy may exist (1) if there is a question
of law previously unanswered by the Supreme Court, which ques-
tion must be answered to determine a right or liability for disposition
of a claim under the Nebraska Workers’ Compensation Act, or (2) if
the properly adduced evidence would support reasonable but opposite
conclusions by the compensation court concerning an aspect of an
employee’s claim for workers’ compensation, which conclusions affect
allowance or rejection of an employee’s claim, in whole or in part.
Appeal from the Workers’ Compensation Court. Julie A.
M artin, Judge. Affirmed in part, and in part reversed and
vacated.
Jessica R. Voelker, of Law Office of Steven G. Piland, for
appellants.
Lee S. Loudon and Joseph A. Huckleberry, of Law Office of
Lee S. Loudon, P.C, L.L.O., for appellee.
R iedmann, Bishop, and Welch, Judges.
Welch, Judge.
INTRODUCTION
P & C Group 1, Inc., doing business as Camaco, LLC (P&C
Group), and Hartford Fire Insurance Company (Appellants)
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PICARD v. P & C GROUP 1
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appeal from an order of the Nebraska Workers’ Compensation
Court awarding Halina Picard compensation for a 75-percent
loss of earning capacity due to a 2012 work-related accident
and for a 55-percent loss of earning capacity due to a 2015
work-related accident, with no reduction in the second award
due to apportionment from the first award. For the reasons set
forth herein, we affirm in part, and in part reverse and vacate
the award of attorney fees, penalties, and costs.
STATEMENT OF FACTS
Since 1989, Picard has worked as a production worker for
P&C Group in a variety of positions. In April 2012, her duties
included loading and unloading parts from robotic welders and
stocking parts. On April 24, Picard felt a severe pain in both
hands causing her to drop the parts that she was holding. She
informed her supervisor and sought medical treatment. She
was referred to Dr. Jeffrey Tiedeman, who performed surgery
on her wrists in June. Dr. Tiedeman eventually released Picard
to work with permanent restrictions.
In September 2015, Picard was working at P&C Group in
a position that accommodated her permanent restrictions. On
September 9, Picard experienced severe back pain as she bent
over to pick up parts. She testified that she was almost unable
to walk and sought medical attention. She was referred to Dr.
Geoffrey McCullen, who eventually performed surgery on her
back. Following her surgery, Picard returned to work at P&C
Group and, up until the time of trial, had performed the same
job she performed prior to her September 2015 injury.
Picard filed two claims against P&C Group and its insurer,
Hartford Fire Insurance Company, relating to the injuries she
received while working for P&C Group in 2012 and 2015.
These cases were consolidated by the Workers’ Compensation
Court. Trial in this matter was held in December 2017.
At the time of trial, Picard was 62 years old. She testified
that she was born in Poland, attended “[e]ighth grade school
and five year college,” and had worked selling jewelry in
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Poland. In 1982, she moved to the United States, and in 1987,
she obtained a job assembling electronics. After this job, she
worked for P&C Group for a few months before being laid
off. She then found a job labeling boxes and meat in a meat-
packing plant. In 1989, Picard was rehired by P&C Group and
worked there through the time of trial.
Medical Evidence
After the April 2012 injury, Dr. Tiedeman diagnosed Picard
with bilateral carpal tunnel syndrome, and in June, he per-
formed a carpal tunnel release surgery on her wrists. After
some temporary restrictions, Dr. Tiedeman placed Picard on
a permanent restriction of lifting no more than 5 pounds
and recommended that she do no more than occasional work
above shoulder level. In October, Dr. Tiedeman wrote that, in
his opinion, Picard had reached maximum medical improve-
ment and had a 10-percent permanent partial impairment of
each hand.
In November 2017, a doctor performed an independent
medical evaluation of Picard’s carpal tunnel condition on
behalf of P&C Group. He opined that the symptoms in
Picard’s hands would not improve significantly. He agreed that
Picard should be restricted to lifting no more than 5 pounds
and recommended a restriction that Picard “avoid use of
vibratory tools.”
After Picard’s September 2015 injury, Dr. McCullen diag-
nosed her with a herniated disk and performed a micro-
diskectomy operation on her spine. Dr. McCullen assigned
permanent restrictions to Picard of no bending to the floor;
only occasional bending, squatting, or twisting; and no lift-
ing greater than 10 pounds. Dr. McCullen clarified that “[t]he
restrictions above are for the spine,” not the hands, and stated
that Picard could continue in her then-current position at P&C
Group. Dr. McCullen opined within a reasonable degree of
medical certainty that Picard suffered a 13-percent impairment
of the whole body.
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Stipulations Prior to Trial
Prior to trial, the parties stipulated to matters relevant to this
appeal. Regarding the 2012 accident involving Picard’s wrists,
the parties stipulated that (1) Picard’s average weekly wage
at the time of her injury was $694.12; (2) P&C Group paid
Picard temporary total disability benefits for 74⁄ 7 weeks from
June 18 through 25, 2012, and January 7 through February
10, 2013, at the rate of $462.75 totaling $3,503.68; (3) P&C
Group paid Picard permanent partial disability benefits total-
ing $18,817.19 and is entitled to a credit for the permanent
partial disability benefits paid; (4) if Picard’s 2012 injury to
her hands is compensated as a scheduled member injury under
Neb. Rev. Stat. § 48-121(3) (Reissue 2010), a 10-percent
impairment to Picard’s bilateral hands equates to 35 total
weeks (175 weeks × 10 percent × 2). At the rate of $462.75,
Picard would be entitled to $16,196.25 if the court finds that
Picard is not entitled to permanent partial disability benefits
based upon her loss of earning power. As such, the parties
stipulated that regarding Picard’s 2012 injury, the genuinely
controverted issues to be resolved by the court at the time
of trial relevant to this appeal were (1) whether Picard was
adequately compensated for her April 24, 2012, injuries with
a scheduled member injury award, or (2) whether Picard was
entitled to additional compensation for loss of earning power
benefits as a result of suffering more than one scheduled mem-
ber injury from one accident.
The parties then stipulated to the following regarding the
2015 accident involving Picard’s back: (1) that Picard suffered
an accident and injury on September 9, 2015, and (2) that P&C
Group has paid 12 weeks of temporary total disability from
June 24 through September 15, 2016, at the rate of $403.55
totaling $4,035.50. The parties further stipulated that regard-
ing Picard’s 2015 injury, the genuinely controverted issues
to be resolved by the court at the time of trial and relevant
to this appeal were (1) whether Picard suffered any loss of
earning power as a result of the September 9, 2015, accident;
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(2) whether Picard was entitled to apportion any loss of earn-
ing power benefits attributable to the April 24, 2012, accident
and injury toward any benefits that may be due and owing for
loss of earning power for the September 9, 2015, accident; and
(3) whether Picard is entitled to penalties, attorney fees, and
interest for P&C Group’s failure to pay any permanent disabil-
ity benefits for loss of earning power.
Vocational Evidence
In addition to the above-stated stipulations, the parties
stipulated to having Kim Rhen perform a loss of earning
capacity analysis in connection with Picard’s 2015 injury.
Based on the restrictions that Dr. McCullen assigned for
Picard’s back, Rhen estimated Picard’s total loss of earning
capacity from the 2015 injury to be 50 percent—or 55 percent
if still employed at P&C Group. Rhen provided two possibili-
ties, because there was a dispute regarding Picard’s average
weekly wage. Rhen was then appointed by the court to per-
form a vocational evaluation for Picard’s 2012 injury. Based
on the restrictions that Dr. Tiedeman assigned for Picard’s
carpal tunnel syndrome, Rhen estimated Picard’s total loss
of earning capacity from the 2012 injury at 60 percent if still
employed at P&C Group. Rhen found that the restrictions
from either of Picard’s two injuries were independently suf-
ficient to make Picard unemployable outside of P&C Group,
but she believed that Picard was competitively employed at
P&C Group. Rhen also noted that the higher earning capacity
loss for the 2012 injury was because Picard had a higher aver-
age weekly wage before the 2012 injury.
After Picard’s first injury, she was no longer eligible for
overtime. After each injury, she continued to receive yearly
raises to her hourly pay similar to uninjured employees and
has not had her hourly pay reduced. Upon Picard’s completion
of her shift at work, someone on the next shift performs the
same job functions she performs. There are eight other jobs
at P&C Group that Picard could transfer to and perform with
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no accommodations or assistance, as well as other jobs for
which P&C Group could accommodate her. Picard testified
that she had worked in her current position for over 3 years
and had not received any negative performance reviews, been
demoted, or had her pay reduced. She has been satisfied with
P&C Group and plans to continue employment there.
Compensation Court Order
In February 2018, the Workers’ Compensation Court issued
an award following trial on the consolidated matters. As to
Picard’s 2012 injury, the court stated:
[P&C Group contends that Picard] has been adequately
compensated for her injuries based upon the 10 per-
cent bilateral hand impairment. [Picard] argues she is
entitled to compensation in the form of a loss of earnings
capacity assessment under Neb. Rev. Stat. § 48-121(3),
which provides: “If, in the compensation court’s discre-
tion, compensation benefits payable for a loss or loss of
use of more than one member or parts of more than one
member set forth in this subdivision, resulting from the
same accident or illness, do not adequately compensate
the employee for such loss or loss of use and such loss
or loss of use results in at least a thirty percent loss of
earning capacity, the compensation court shall, upon the
request of the employee, determine the employee’s loss
of earning capacity consistent with the process for such
determination under subdivision (1) or (2) of this section,
and in such a case the employee shall not be entitled to
compensation under this subdivision.” Based upon the
written evidence, her permanent work restrictions, and
the testimony of [Picard], the Court finds . . . Picard
has not been adequately compensated for the injuries to
her hands under the schedule established in Neb. Rev.
Stat. §48-121(3).
....
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. . . Thus, based upon the testimony of the witnesses,
the written evidence submitted herein, and the factors set
forth under Sidel, it is this Court’s own factual finding
that [Picard] has suffered a 75 percent loss of earning
power as a result of the accident and injury of April 24,
2012, which entitles her to the sum of $347.06 per week
for 292 3/7 weeks.
As to the 2015 injury, the court found:
After considering all the written evidence, [Picard’s]
testimony, her current employability, the Court’s own
observations, together with the various factors used to
determine loss of earning capacity as set forth in Sidel
v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482
(1980), the Court adopts the opinions of the agreed-upon
counselor and finds [Picard] has a loss of earning capac-
ity of 55 percent as a result of the accident and injury
of September 9, 2015, which entitles her to the sum of
$229.01 per week for 288 weeks.
In addressing P&C Group’s request for apportionment, the
court held:
[Appellants assert that] any loss of earning capacity
assigned to [Picard] for the 2015 accident should be appor-
tioned. “To be apportionable, an impairment must have
been independently producing some degree of disability
before an accident and must be continuing to operate as a
source of disability after the accident. Jacob v. Columbia
Ins. Group, 2 Neb. Ct. App. 473, 491, 511 N.W.2d 211, 221
(1994) (quoting 2 Arthur Larson, The Law of Workmen’s
Compensation § 59.22(c) (1993)). The term “disability”
contemplates impairment of earning capacity, not func-
tional disability. Cummings v. Omaha Public Schools, 6
Neb. Ct. App. 478, 486, 574 N.W.2d 533, 539 (1998). The
problem with apportionment typically occurs between
an employer and an employee when disability from a
prior injury contributes to a claimant’s total disability
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following a subsequent injury. Martinez-Najarro v. IBP,
Inc., 12 Neb. Ct. App. 504, 678 N.W.2d 114 (2004).
After further quoting from Martinez-Najarro v. IBP, inc., 12
Neb. Ct. App. 504, 678 N.W.2d 114 (2004), and later in the opin-
ion, the court ultimately held:
The undersigned will admit to being perplexed by
[Appellants’] argument. They are claiming apportionment
for the back claim but at the same time arguing [Picard’s]
carpal tunnel injuries should be compensated as sched-
uled member injuries. Apportionment is only appropriate
when the employee has already been compensated for
a disability in terms of a loss of earnings. Martinez at
510, 678 N.W.2d 114, 121. According to the evidence,
. . . Picard was not paid for a loss of earnings for the
2012 claim. Additionally, . . . Picard’s injuries are to dif-
ferent parts of her body—hands and low back. As with
Martinez, she still would have sustained a loss of earn-
ings for her back irrespective of her bilateral carpal tun-
nel injuries. Id. Apportionment is not appropriate under
the facts of the present case.
Finally, the court awarded Picard $20,000 in attorney fees
relating to the 2015 injury. The court specifically found that
there was no reasonable controversy governing the substance
of the 2015 award and that therefore, the attorney fees, penal-
ties, and interest provisions of Neb. Rev. Stat. § 48-125 (Cum.
Supp. 2016) were applicable. Appellants now appeal.
ASSIGNMENTS OF ERROR
Appellants contend that the trial court erred (1) in finding
that apportionment does not apply, (2) in assessing loss of
earning power to the September 2015 injury, and (3) in award-
ing attorney fees and penalties.
STANDARD OF REVIEW
[1,2] An appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (1) the
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compensation court acted without or in excess of its powers;
(2) the judgment, order, or award was procured by fraud; (3)
there is not sufficient competent evidence in the record to
warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support
the order or award. See Gimple v. Student Transp. of America,
300 Neb. 708, 915 N.W.2d 606 (2018). 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 which are clearly wrong in light of the
evidence. Id.
ANALYSIS
This case presents the issue of the interrelation of succes-
sive workers’ compensation injuries and awards. As it relates
to this appeal, the Workers’ Compensation Court held that (1)
Picard was entitled to a body as a whole award (lost earning
capacity) for the bilateral injuries to her wrists in 2012, (2)
Picard was entitled to a body as a whole award for injury
to her back in 2015, (3) the court’s 2015 award for Picard’s
back should not be reduced because of Picard’s 2012 inju-
ries or the court’s award for Picard’s wrists, and (4) Picard
was entitled to an award of attorney fees and costs under
these circumstances.
Appellants do not challenge the court’s finding that Picard
was entitled to a body as a whole award for the bilateral inju-
ries to her wrists in 2012. Instead, they argue that the court
erred in not apportioning the 2015 award as a result of its
2012 award or, in the alternative, that the court erred in finding
the permanent physical limitations from Picard’s 2012 wrist
injuries do not impact the 2015 award. We will address these
arguments independently.
A pportionment
Appellants first argue that the court erred in failing to
apportion the disability benefits awarded for the 2015 accident
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with the disability benefits awarded for the 2012 accident. This
argument requires us to determine whether a prior body as a
whole injury resulting in compensation for lost earning capac-
ity should be apportioned with an award for a successive body
as a whole injury, albeit when the successive injury is to a dif-
ferent part of the body.
[3] In order to properly analyze this issue, we begin with
a review of prior case law in the areas of successive injuries.
In Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459,
461 N.W.2d 565 (1990), the Nebraska Supreme Court consid-
ered whether an employee’s preexisting back condition should
diminish a disability award when the employee’s back injury
was later aggravated resulting in further disability. In finding
that the preexisting condition of the employee’s back injury
should not reduce his recovery, the court held:
[A] claimant is entitled to an award under the [Nebraska]
Workers’ Compensation Act for a work-related injury
disability if the claimant shows, by a preponderance of
evidence, that the claimant sustained the injury and dis-
ability proximately caused by an accident which arose out
of and in the course of the claimant’s employment, even
though a preexisting disability or condition had combined
with the present work-related injury to produce the dis-
ability for which the claimant seeks an award. Spangler
v. State, 233 Neb. 790, 448 N.W.2d 145 (1989); Cole
v. Cushman Motor Works, 159 Neb. 97, 65 N.W.2d 330
(1954); Tucker v. Paxton & Gallagher Co., 153 Neb.
1, 43 N.W.2d 522 (1950). Thus, allocation of disability
attributable to a work-related injury and disability attrib-
utable to an antecedent or preexisting disability or condi-
tion which may or may not be work-related is irrelevant
in this case inasmuch as there is no claim against the
Second Injury Fund.
Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. at 473,
461 N.W.2d at 575.
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In Cummings v. Omaha Public Schools, 6 Neb. Ct. App. 478,
574 N.W.2d 533 (1998), this court considered whether the
rule espoused in Heiliger applied similarly when the aggra-
vated preexisting condition involved a body as a whole injury
which was previously compensated under workers’ compen-
sation laws. In Cummings, the employee suffered a back
injury in 1984 for which he was compensated for lost earn-
ing capacity relating thereto. From 1992 through 1994, the
employee exacerbated his back injury during the course and
scope of his employment, for which he made a separate work-
ers’ compensation claim. Unlike in Heiliger, the Workers’
Compensation Court in Cummings apportioned the claimant’s
recovery between the previously compensated injury and the
new injuries.
In affirming the award, this court reasoned that neither
Heiliger v. Walters & Heiliger Electric, Inc., supra, nor Jacob
v. Columbia Ins. Group, 2 Neb. Ct. App. 473, 511 N.W.2d 211
(1994), “prohibit apportioning a claimant’s recovery for dis-
ability between a prior, compensated injury to the body as a
whole and a subsequent compensable injury to the body as a
whole.” Cummings v. Omaha Public Schools, 6 Neb. Ct. App. at
485, 574 N.W.2d at 539. In reaching this conclusion, this court
first distinguished Heiliger in saying:
Heiliger is distinguishable from the present case, how-
ever, because the claimant in Heiliger had not been com-
pensated for the prior injury or the disability resulting
therefrom. As such, Heiliger does not stand for the propo-
sition that a claimant who has once received compensa-
tion for disability occasioned by a prior injury is entitled
to be compensated again for the original disability when a
subsequent injury exacerbates the prior disability.
Cummings v. Omaha Public Schools, 6 Neb. Ct. App. at 485, 574
N.W.2d at 539.
[4,5] The Cummings court further distinguished Jacob v.
Columbia Ins. Group, supra, in stating:
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In Jacob v. Columbia Ins. Group, supra, this court
discussed apportionment and applied apportionment to a
factual situation involving injuries to separate but related
members, rather than injuries to the body as a whole. We
held that “‘[t]o be apportionable, then, an impairment
must have been independently producing some degree
of disability before the accident, and must be continuing
to operate as a source of disability after the accident.’”
2 Neb. Ct. App. at 491, 511 N.W.2d at 221. In terms of this
test for determining when apportionment is appropriate,
the term “disability” contemplates impairment of earning
capacity, not functional disability. Id. Additionally, we
noted that the problem of apportionment may be encoun-
tered between an employer and an employee when dis-
ability from a prior injury contributes to a claimant’s total
disability following a subsequent injury. Id.
On the facts of Jacob, we held that it was not appro-
priate to apportion a claimant’s disability between a prior
work-related accident where the claimant lost a finger and
a subsequent work-related accident where he essentially
lost his entire hand. Because both injuries were injuries
to members, rather than injuries to the body as a whole,
the claimant did not suffer any disability in terms of loss
of earning capacity, as distinguished from functional dis-
ability, from the prior injury, and the award which he
received for the prior injury did not need to be deducted
from the disability benefits for which he was entitled as a
result of the subsequent injury. See id.
Cummings v. Omaha Public Schools, 6 Neb. Ct. App. 478, 485-86,
574 N.W.2d 533, 539-40 (1998).
We held in Cummings, after applying the facts in that case
to the “test established in Jacob for determining the appropri-
ateness of apportionment,” that
the compensation court did not err in apportioning
Cummings’ disability between the prior, compensated
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injury and the subsequent series of injuries. Cummings’
prior back injury independently produced some degree of
lost earning capacity, as indicated by his prior award of
benefits for a 25-percent loss of earning capacity resulting
from the prior accident. Additionally, the prior disability
is continuing to act as a source of lost earning capacity
even after the subsequent series of accidents.
As such, because Cummings was already compensated
for the prior disability, he is not entitled to receive com-
pensation now beyond whatever additional disability can
be attributed to the subsequent series of injuries or its
aggravation of his prior condition. He is not entitled to be
compensated again for the original 25-percent disability
caused by the prior injury. The evidence in the record
uniformly indicates that Cummings is entitled to benefits
for a 5-percent loss of earning capacity caused by the
subsequent series of injuries and its aggravation of his
prior condition.
6 Neb. Ct. App. at 486-87, 574 N.W.2d at 540.
Having addressed apportionment in connection with a pre-
viously uncompensated body as a whole injury aggravated in
a successive work-related accident in Heiliger v. Walters &
Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990);
a previously compensated member injury followed by a suc-
cessive work-related member injury in Jacob v. Columbia Ins.
Group, 2 Neb. Ct. App. 473, 511 N.W.2d 211 (1994); and a previ-
ously compensated body as a whole injury aggravated in a suc-
cessive work-related accident in Cummings v. Omaha Public
Schools, supra, this court had occasion to review a previously
uncompensated member injury followed by a successive body
as a whole injury in Martinez-Najarro v. IBP, inc., 12 Neb.
App. 504, 678 N.W.2d 114 (2004). In Martinez-Najarro, an
employee suffered a shoulder injury in 1997 resulting in a
34-pound lifting restriction; however, the record did not estab-
lish whether he was previously compensated for that injury. In
1999, the employee suffered a work-related hernia, a body as a
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whole injury for which he was given a 30-pound lifting restric-
tion and for which he sought compensation. The Workers’
Compensation Court apportioned the disabilities relating to
the injuries and awarded the employee only a 5-percent loss
of earning power, reasoning that the prior 34-pound lifting
restriction from the prior shoulder injury provided the bulk of
his lost earning power and that little additional disability was
caused by the hernia.
In reversing the award, we noted that, like Heiliger v.
Walters & Heiliger Electric, Inc., supra, the preexisting shoul-
der condition of the employee was not previously compensated
as a whole body injury (at least record did not establish prior
compensation) thereby distinguishing Martinez-Najarro v. IBP,
inc., supra, from Cummings v. Omaha Public Schools, supra.
Additionally, like Jacob v. Columbia Ins. Group, supra, the
preexisting shoulder condition of the employee would be a
scheduled member injury under the workers’ compensation
statutes, meaning the employee, even if compensated, would
have been compensated for a scheduled member injury and
not compensated for lost earning capacity. Martinez-Najarro
v. IBP, inc., supra. See, also, Rodriguez v. Monfort, Inc., 262
Neb. 800, 810, 635 N.W.2d 439, 448 (2001) (holding that,
because claimant’s injuries were scheduled member injuries,
not injuries to “body as a whole,” any loss of earning capac-
ity claimant may have sustained was irrelevant to computing
his compensation).
Notwithstanding the holding in Martinez-Najarro, in dicta,
this court also noted:
Martinez’ injuries were to different parts of his body.
According to Jacob, the usual apportionment statute
would entitle Martinez to compensation for a disabil-
ity that would have existed if the prior injury had not
occurred. Even if Martinez had not had a prior 34-pound
lifting restriction from his shoulder injury, his hernia
still would have resulted in a 30-pound lifting restric-
tion. The two injuries were not related, so the second
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injury would not have been less had the first injury
not occurred.
Martinez-Najarro, 12 Neb. Ct. App. at 513, 678 N.W.2d at 123.
Based upon this language, the Workers’ Compensation
Court in the case at bar stated in its award governing the
2015 injury:
[In Martinez-Najarro,] IBP argued the award should be
apportioned since Martinez’s prior disability continued
to operate as a source of disability at the time of the
second injury. The Court [of Appeals] rejected this argu-
ment because Martinez’s injuries were to different parts
of his body, stating “[e]ven if Martinez had not had a
prior 34-pound lifting restriction from his shoulder injury,
his hernia still would have resulted in a 30-pound lift-
ing restriction. The two injuries were not related, so the
second injury would not have been less had the first
injury not occurred. Furthermore, there is no evidence
that Martinez was compensated for the injury which gave
rise to his prior 34-pound lifting restriction.” Id. at 513,
678 N.W.2d 114, 123.
. . . Apportionment is only appropriate when the
employee has already been compensated for a disabil-
ity in terms of a loss of earnings. Martinez at 510, 678
N.W.2d 114, 121. According to the evidence, . . . Picard
was not paid for a loss of earnings for the 2012 claim.
Additionally, . . . Picard’s injuries are to different parts
of her body—hands and low back. As with Martinez, she
still would have sustained a loss of earnings for her back
irrespective of her bilateral carpal tunnel injuries. Id.
Apportionment is not appropriate under the facts of the
present case.
In determining whether apportionment is applicable to these
facts, we must first determine the definition of apportionment.
Although our prior case law does not appear to clearly define
it, we note a statement we made in Jacob v. Columbia Ins.
Group, 2 Neb. Ct. App. 473, 511 N.W.2d 211 (1994). There, we
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stated: “The parties agree that the question before the court
is really one of whether Nebraska is an apportionment state.
We are unable to find any cases holding that Nebraska is or
is not an apportionment state.” Id. at 490, 511 N.W.2d at
221. We then went on to quote from Prof. Arthur Larson, a
notable academic on workers’ compensation law. In doing so,
we noted Professor Larson’s discussion of cases from other
jurisdictions governing the issue of apportionment, including
the following:
“The problem of apportionment of a compensable loss
is encountered in three principal forms: between succes-
sive employers or carriers, when the final disability is
traceable to exposures or incidents under two or more of
them; between an employer and a Second Injury fund,
when a preexisting condition covered by the Fund is
involved; and between an employer and the employee
himself, when a prior personal disability contributes to
the final disabling result.” 2 Arthur Larson, The Law
of Workmen’s Compensation § 59.20 at 10-492.337 to
10-492.339 (1993).
Jacob, 2 Neb. App. at 490, 511 N.W.2d at 221. We then quoted
Professor Larson’s continuing analysis on apportionment:
“Note, however, that this combining of a prior non-­
disabling condition and a later work-connected injury
may produce compensable aggravated disability even
though the one does not act directly upon the other. For
example . . . . It will be observed that the courts in these
cases define preexisting disability, not as functional dis-
ability, but as disability in the compensation sense of
impairment of earning capacity. This approach is put to
its sharpest test when the prior impairment was in the
form of loss of specific members covered by the sched-
ule. For example, when a claimant, although he had ear-
lier lost three fingers of his left hand, had continued to
work at regular employment, and then lost his entire left
hand, he was held entitled to compensation for the hand
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without deduction for the schedule value of the fingers.”
[2 Arthur Larson, The Law of Workmen’s Compensation]
at § 59.22(c) at 10-492.394 to 10-492.395.
Jacob, 2 Neb. Ct. App. at 490-91, 511 N.W.2d at 221. We
finally quoted the following observation from Professor
Larson’s work:
“This is correct under the usual apportionment statute,
which allows compensation for the disability that would
have existed if the prior injury had not occurred, since the
final effect of loss of the hand itself is the same whether
several fingers were previously missing or not. . . .
“To be apportionable, then, an impairment must have
been independently producing some degree of disability
before the accident, and must be continuing to operate as a
source of disability after the accident.” [2 Arthur Larson,
The Law of Workmen’s Compensation] at 10-492.396 to
10-492.397.
Jacob, 2 Neb. App. at 491, 511 N.W.2d at 221.
We then concluded in Jacob v. Columbia Ins. Group, 2
Neb. Ct. App. 473, 511 N.W.2d 211 (1994), that because the orig-
inal injury did not continue to produce disability before the
second accident, the claimant was entitled to compensation
for the second injury without any deduction for the first. That
said, we never answered the direct question posed earlier in
the opinion, i.e., whether Nebraska is an apportionment state.
Instead, we concluded that in states that have apportionment
statutes, the scenario in Jacob would not produce apportion-
ment anyway, and therefore, under the facts in Jacob, appor-
tionment was not appropriate.
[6] We are now asked to determine whether apportion-
ment is appropriate to successive injuries to different parts of
the body when the former injury was a compensated injury
to the body as a whole and the subsequent injury is a com-
pensable injury to the body as a whole. The difficulty in
determining whether apportionment should apply lies in the
fact that Nebraska does not have an apportionment statute.
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In summarizing the law governing apportionment, Professor
Larson noted in assessing his own statement governing the
law of apportionment, that “‘[t]his is correct under the usual
apportionment statute . . . .’” Jacob, 2 Neb. App. at 491,
511 N.W.2d at 221. But it is difficult to assign a definition
to apportionment when the definition differs by state statute
and Nebraska has no such statute. We note that Professor
Larson’s workers’ compensation treatise indicates that “[i]n the
absence of an apportionment statute, the general rule is that
the employer becomes liable for the entire disability result-
ing from a compensable accident.” 8 Arthur Larson & Lex K.
Larson, Larson’s Workers’ Compensation Law § 90.01 at 90-2
(2017). We further note that although Nebraska did formerly
have an apportionment statute which provided for apportion-
ment in connection with the Second Injury Fund, and that
a Second Injury Fund is one of the “three principal forms”
of apportionment discussed by Professor Larson, that statute
applies only to “injuries occurring before December 1, 1997.”
Neb. Rev. Stat. § 48-128 (Reissue 2010). Finally, we note that
in Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459,
473, 461 N.W.2d 565, 575 (1990), after reviewing the facts to
determine whether apportionment should apply, the Nebraska
Supreme Court stated, “allocation of disability attributable to a
work-related injury and disability attributable to an antecedent
or preexisting disability or condition which may or may not be
work-related is irrelevant in this case inasmuch as there is no
claim against the Second Injury Fund.” We read the Supreme
Court’s statement in Heiliger to be a manifestation of the gen-
eral rule as provided by Professor Larson. That is, absent a
statute requiring apportionment, the doctrine of apportionment
is not applicable.
Accordingly, we hold that because Nebraska does not have
an apportionment statute, apportionment is not appropriate
to the case at bar. We further note that applying Professor
Larson’s summarization of “‘the usual apportionment statute,’”
apportionment would not apply to these facts because, with an
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injury to a different body part, the second injury and result-
ing disability would have existed regardless of whether the
prior injury occurred. As such, although on different grounds,
we affirm the Workers’ Compensation Court’s decision not to
apportion Picard’s second injury award with the first.
Failure to Assess Loss
of Earning Power
Appellants next argue that the court erred in assessing
Picard’s lost earning power from the second injury by simply
ignoring Picard’s lost earning power and condition related to
the first injury—which continued to act as a source of disabil-
ity at the time of her second injury. We note that P&C Group
does not appeal the compensation court’s determination of a
75-percent loss of earning capacity as a result of Picard’s 2012
injury. We thus affirm the compensation court’s order related
to the 2012 injury and loss of earning award. We proceed to
consider the impact, if any, of the continuing disability which
resulted in the 2012 loss of earning capacity award when
determining a loss of earning capacity resulting from Picard’s
2015 injury.
Part of the difficulty in this case lies with the fact that the
2012 claim for the injury to Picard’s hands was consolidated
and tried together with the 2015 claim for the injury to Picard’s
back. In fact, Rhen was asked to perform her lost earning
capacity analysis in connection with the 2015 injury before
being asked by the court to perform a similar analysis for the
2012 injury. As a result, it appears that Rhen made her assess-
ment of lost earning capacity for 2015 without taking into
account any continuing disability from the 2012 injury. That
fact is reflected in the following colloquy:
Q. Okay. So is it fair to say that the back injury did
not change the loss of earning power, given that [Picard]
remains in that same position that she held at the time that
she was placed at maximum medical improvement for
the wrist injuries and given that five-pound restriction?
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[Picard’s counsel:] Objection, calls for a legal
conclusion.
A. I’m not sure how to answer that. I went ahead
and — like I said, I received the information kind of
in reverse order. The second one came before the first
one. So when I completed the original report dated
January 23rd, I was taking the information that I had in
front of me at that time and providing an opinion based
upon that.
Appellants properly note that after Picard’s 2012 injuries to
her hands and her bilateral carpal tunnel release surgeries, as
well as prior to her 2015 back surgery, Picard was assigned a
permanent restriction of not lifting over 5 pounds and was no
longer allowed to work overtime for her employer. She was
moved to a job that accommodated those medical restrictions.
As a result, Rhen, the court-appointed vocational rehabilitation
counselor, opined that Picard was unemployable outside of her
present employment and suffered a 60-percent loss of earn-
ing power if she remained employed with P&C Group. Based
upon this evidence, the Workers’ Compensation Court assigned
Picard a 75-percent loss of earning capacity related to the 2012
injuries and compensated Picard for her loss of earning power
on that basis.
Appellants then note that Picard, while working with the
job assignment and restrictions from her first accident, suf-
fered her back injury in 2015. Following her back surgery,
Picard was assigned a 10-pound lifting restriction along with
restrictions for repetitive bending, squatting, and twisting.
As a result, and without considering medical or functional
data from the first accident, Rhen indicated that if Picard
remained employed with P&C Group, she would have a 50- to
55-percent loss of earning power, but that if Picard did not
remain so employed, her lost earning capacity was 100 per-
cent. Picard’s doctor even acknowledged that Picard did not
need additional accommodation at work following her back
injury, given that there were restrictions in place following
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her hand injuries and that Picard worked regularly following
her medical release.
Appellants argue that because Picard’s lifting restriction
from her 2012 injuries to her hands was greater than the lift-
ing restrictions from the 2015 injury to her back, and because
Picard did not need any additional accommodations at work for
the second injury given the restrictions from the first, the evi-
dence demonstrates there was no additional lost earning power
from the second injury.
When determining how to properly calculate compensation
for Picard’s 2015 back injury, an injury to her body as a whole,
our analysis begins with the controlling compensation statute,
§ 48-121 (Reissue 2010). Section 48-121(2) provides, in per-
tinent part:
For disability partial in character, except the particular
cases mentioned in subdivision (3) of this section, the
compensation shall be sixty-six and two-thirds percent of
the difference between the wages received at the time of
the injury and the earning power of the employee there-
after, but such compensation shall not be more than the
maximum weekly income benefit specified in section
48-121.01.
(Emphasis supplied.)
Here, the Workers’ Compensation Court recognized that
apportionment was not appropriate, but then appeared to
assess Picard’s lost earning power from the 2015 back injury
as if the 2012 injury did not exist. By the time of the 2015
injury, Picard was making wages for her job subject to the
limitations and restrictions from her first injury, for which the
compensation court awarded her a 75-percent loss of earn-
ing capacity. Her restrictions and reduced earning capacity
from her 2012 injury to her wrists continued to be in effect
at the time of her 2015 injury to her back. Notably, the 2015
injury did not result in any additional lifting restrictions which
were not already in place prior to the 2015 injury. In short,
it appears that because the court correctly concluded that
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apportionment was not applicable, it disregarded any disabil-
ity from the first accident in assessing lost earnings from the
second, resulting in the court’s ordering an additional award
for a 55-percent loss of earning capacity.
Although Appellants argue that Picard’s earning power was
not further reduced as a result of her 2015 back injury, due
to her permanent lifting restrictions resulting from her 2012
injuries to her wrists, we are mindful of our court’s prior
statement in Martinez-Najarro v. IBP, inc., 12 Neb. Ct. App. 504,
678 N.W.2d 114 (2004). In Martinez-Najarro, we separately
decided the matter on the basis that the prior injury was not
compensated and the prior injury was to a scheduled mem-
ber; however, we noted in dicta, “Even if [the claimant] had
not had a prior 34-pound lifting restriction from his shoulder
injury, his hernia still would have resulted in a 30-pound
lifting restriction. The two injuries were not related, so the
second injury would not have been less had the first injury
not occurred.” 12 Neb. App. at 513, 678 N.W.2d at 123.
Although our court made that statement in relation to explain-
ing why injuries to separate body parts do not invoke the
doctrine of apportionment, it equally applies to Appellants’
argument here.
[7] As the Nebraska Supreme Court noted in Risor v.
Nebraska Boiler, 274 Neb. 906, 912, 744 N.W.2d 693, 698
(2008), “The principal purpose of the [Nebraska Workers’
Compensation] Act is to provide an injured worker with prompt
relief from the adverse economic effects caused by a work-
related injury or occupational disease.” Section 48-121 pro-
vides that “[t]he following schedule of compensation is hereby
established for injuries resulting in disability . . . .” If we were
to find that Picard was not entitled to compensation because
her earning power, diminished by the current injury, was not
compensable due to malingering, similar restrictions from a
different injury, Picard would be denied compensation for her
current injury. We believe the better reasoned interpretation of
§ 48-121(2) requires that the court review Picard’s lost earning
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power from the current injury independent of any limitations
from a prior dissimilar compensable injury. As such, albeit
for a different reason, we affirm the Workers’ Compensation
Court’s finding that the 2015 injury and impact on Picard’s
lost earning power should be assessed independently of any
limitations from Picard’s 2012 injury.
Attorney Fees and Penalties
[8-10] Finally, we address Appellants’ contention that the
court erred in awarding Picard attorney fees, penalties, and
interest relating to the 2015 injury. In making the award, the
court held there was no reasonable controversy governing
the substance of the 2015 award and that therefore, the attor-
ney fee, penalties, and interest provisions of § 48-125 were
applicable. As the Nebraska Supreme Court noted in McBee
v. Goodyear Tire & Rubber Co., 255 Neb. 903, 908-09, 587
N.W.2d 687, 692 (1999):
As construed by this court, Neb. Rev. Stat. § 48-125
(Reissue 1993) authorizes a 50-percent penalty pay-
ment for waiting time involving delinquent payment
of compensation and an attorney fee, where there is
no reasonable controversy regarding an employee’s
claim for workers’ compensation. Musil v. J.A. Baldwin
Manuf. Co., 233 Neb. 901, 448 N.W.2d 591 (1989);
Mendoza v. Omaha Meat Processors, 225 Neb. 771,
408 N.W.2d 280 (1987). Whether a reasonable con-
troversy exists pertinent to § 48-125 is a question of
fact. Starks v. Cornhusker Packing Co., supra; U S
West Communications v. Taborski, supra. In Mendoza v.
Omaha Meat Processors, supra, this court adopted guide-
lines to aid courts in determining whether a reasonable
controversy exists. A reasonable controversy may exist
(1) if there is a question of law previously unanswered
by the Supreme Court, which question must be answered
to determine a right or liability for disposition of a
claim under the Nebraska Workers’ Compensation Act, or
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(2) if the properly adduced evidence would support rea-
sonable but opposite conclusions by the compensation
court concerning an aspect of an employee’s claim for
workers’ compensation, which conclusions affect allow-
ance or rejection of an employee’s claim, in whole or
in part. U S West Communications v. Taborski, supra;
Kerkman v. Weidner Williams Roofing Co., 250 Neb.
70, 547 N.W.2d 152 (1996); Mendoza v. Omaha Meat
Processors, supra. Under the Mendoza test, when there is
some conflict in the medical testimony adduced at trial,
reasonable but opposite conclusions could be reached by
the compensation court. As such, this indicates the pres-
ence of a reasonable controversy. Kerkman v. Weidner
Williams Roofing Co., supra. See, also, Tlamka v.
Goodyear Tire & Rubber Co., 225 Neb. 789, 408 N.W.2d
291 (1987) (no reasonable controversy existed when all
medical testimony agreed that claimant’s condition was
probably caused by his industrial accident).
Because of the lack of clarity in our prior authority govern-
ing the applicability of apportionment and/or considerations
in determining an award for successive compensated body
as a whole injuries, we disagree that there was no reasonable
controversy here. Accordingly, we reverse and vacate that
portion of the award granting Picard attorney fees, penalties,
and costs.
CONCLUSION
In sum, we affirm the Workers’ Compensation Court’s
awards for Picard’s 2012 and 2015 injuries. However, we
reverse and vacate the court’s award of attorney fees, penalties,
and interest provisions relating to the 2015 award.
A ffirmed in part, and in part
reversed and vacated.