Armstrong v. State
| Decision Date | 20 February 2015 |
| Docket Number | No. S–14–438,S–14–438 |
| Citation | 859 N.W.2d 541 |
| Parties | Terry J. Armstrong, Appellant, v. State of Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Michelle D. Epstein and Jason G. Ausman, of Ausman Law Firm, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Elizabeth A. Gregory for appellee.
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 order, judgment, or award, or (4) the findings of fact by the compensation court do not support the order or award.
2. Workers' Compensation: Appeal and Error.On appellate review, the factual findings made by the trial judge of the Workers' Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.
3. Workers' Compensation: Appeal and Error.In workers' compensation cases, an appellate court determines questions of law.
4. Workers' Compensation: Words and Phrases.Earning power, as used in Neb.Rev.Stat. § 48–121(2) (Reissue 2010), is not synonymous with wages. It includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted.
5. Workers' Compensation: Words and Phrases.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 work for any other kind of work which a person of his or her mentality and attainments could do.
6. Workers' Compensation.A worker is not, as a matter of law, totally disabled solely because the worker's disability prevents him or her from working full time.
7. Workers' Compensation.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.
8. Workers' Compensation.A worker may be totally disabled for all practical purposes, despite being able to find trivial, occasional employment under rare conditions at small remuneration.
9. Workers' Compensation.Whether a claimant has suffered a loss of earning power or is totally disabled are questions of fact.
10. Appeal and Error.For an appellate court to consider an alleged error, a party must specifically assign and argue it.
11. Workers' Compensation: Penalties and Forfeitures: Time.Under Neb.Rev.Stat. § 48–125(1)(b) (Cum.Supp.2014), an employer must pay a 50–percent waiting-time penalty if (1) the employer fails to pay compensation within 30 days of the employee's notice of disability and (2) no reasonable controversy existed regarding the employee's claim for benefits.
12. Workers' Compensation: Appeal and Error.For the purpose of Neb.Rev.Stat. § 48–125 (Cum.Supp.2014), a reasonable controversy exists if (1) there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee's claim, which conclusions affect allowance or rejection of an employee's claim, in whole or in part.
13. Workers' Compensation: Attorney Fees: Penalties and Forfeitures: Words and Phrases.Whether a reasonable controversy exists under Neb.Rev.Stat. § 48–125 (Cum.Supp.2014) is a question of fact.
14. Workers' Compensation: Evidence: Time.Evidence showing a reasonable controversy does not have to be known to the employer at the time it refuses benefits.
15. Statutes: Judicial Construction: Legislature: Presumptions: Intent.Ordinarily, when an appellate court judicially construes a statute and that construction does
not evoke an amendment, the court presumes that the Legislature acquiesced in the court's determination of the Legislature's intent.
16. Workers' Compensation.Because an employer is liable under Neb.Rev.Stat. § 48–120 (Reissue 2010) for reasonable medical and hospital services, the employer must also pay the cost of travel incident to and reasonably necessary for obtaining these services.
Terry J. Armstrong was injured while working as a nurse in the employ of the State of Nebraska. The Workers' Compensation Court found that Armstrong was permanently partially disabled and suffered a 75–percent loss of earning power. On appeal, Armstrong argues that a worker who is permanently restricted to part-time work is, as a matter of law, totally disabled. Armstrong also argues that evidence produced by an employer at trial—but unknown at the time benefits are denied—cannot create a reasonable controversy for purposes of the employee's entitlement to a waiting-time penalty. We disagree on both points, but remand the cause so that the court may decide if the State is liable for certain mileage expenses.
On May 22, 2010, Armstrong injured her left shoulder while working as a staff nurse at the Eastern Nebraska Veterans' Home. Armstrong and her employer stipulated that Armstrong
suffered a rotator cuff tear in her left shoulder for which she was “entitled to compensation.” The State paid Armstrong temporary total disability (TTD) benefits from May 22, 2010, until April 23, 2012, when it concluded that Armstrong had reached maximum medical improvement.
As one physician noted, Armstrong's “medical history is indeed complicated.” Armstrong underwent surgery to repair the rotator cuff tear in August 2010. Her surgeon stated in September 2011 that Armstrong had reached maximum medical improvement as to her rotator cuff injury.
But multiple physicians opined that Armstrong developed complex regional pain syndrome (CRPS) after the surgery. CRPS is a chronic pain condition that usually affects a limb after an injury to that limb.
At the request of Armstrong's attorney, Dr. D.M. Gammel reviewed the “countless medical records” and examined Armstrong on October 8, 2013. Gammel concluded that Armstrong's rotator cuff injury caused her CRPS and that her CRPS had reached maximum medical improvement. Gammel opined that Armstrong was permanently limited to working 4–hour days.
Two physicians who examined Armstrong and the medical records at the State's request reached different conclusions. One found “minimal objective evidence” of CRPS and opined that Armstrong was malingering. The other stated that Armstrong's “bilateral upper extremity hypersensitivity” was not caused by the May 2010 accident.
In January 2013, Armstrong filed a petition in Workers' Compensation Court alleging that she suffered from CRPS and had sustained injuries to both her left and right upper limbs because of the May 2010 accident. Armstrong also alleged that she suffered from bipolar, anxiety, and adjustment disorders because of the accident. Armstrong requested TTD benefits from May 22, 2010, to October 8, 2013—the date Gammel opined that she reached maximum medical improvement as to her CRPS—and permanent total disability benefits starting on October 8, 2013.
The court appointed a vocational rehabilitation counselor to provide a loss of earning capacity analysis. Karen Stricklett, the appointed counselor, authored a report that gave different estimates based on the opinions of various physicians. Because of Gammel's opinion that Armstrong could work only 4 hours per day, Stricklett estimated that Armstrong would have a 75–percent loss of earning capacity.
The compensation court entered an award finding that Armstrong was entitled to TTD and permanent partial disability benefits. In addition to the rotator cuff tear, the court found that Armstrong suffered from CRPS because of the accident. The court also found that Armstrong's preexisting anxiety had worsened because of the May 2010 accident. But it concluded that any changes in Armstrong's depression or cognition were unrelated to the workplace injury.
The court awarded Armstrong TTD benefits from April 24, 2012, to October 8, 2013. After that date, the court awarded her permanent partial disability benefits measured by her lost earning power. The court stated that Armstrong met her burden of proving a permanent impairment “through the medical report of Dr. Gammel, who opined that [Armstrong] could work four hours per day in the light demand category.”
For Armstrong's lost earning power, the court found that she “suffered a 75 percent loss of earning capacity as opined by ... Stricklett.” The court said that it “simply believes that [Armstrong] is capable of doing more than she led her doctors to believe.” In particular, the court noted reports from emergency room doctors who said that Armstrong showed no signs of stress while using her cell phone but “ ‘cries out in pain with any motion that we do.’ ” The court also said that it observed Armstrong during trial and noticed that she manipulated papers and moved her limbs without apparent difficulty.
Finally, the court denied Armstrong a waiting-time penalty, attorney fees, and interest under Neb.Rev.Stat. § 48–125 (Cum.Supp.2014), because a reasonable controversy existed. Armstrong argued that the State did not have evidence of a reasonable controversy when it stopped making TTD payments in April 2012. The court agreed, but found that the State had presented such evidence at trial.
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