Ashland-Greenwood Public Schools v. Thorell
| Decision Date | 17 October 2006 |
| Docket Number | No. A-05-1446.,A-05-1446. |
| Citation | 15 Neb. App. 114,723 N.W.2d 506 |
| Parties | ASHLAND-GREENWOOD PUBLIC SCHOOLS, appellant, v. DeWayne L. THORELL and Nebraska Workers' Compensation Trust Fund, appellees. |
| Court | Nebraska Court of Appeals |
Joseph W. Grant, of Hotz, Weaver, Flood, Breitkreutz & Grant, Omaha, for appellant.
Jon Bruning, Attorney General, Lisa Martin-Price, and Chris Seifert, Senior Certified Law Student, for appellee Nebraska Workers' Compensation Trust Fund.
DeWayne L. Thorell's former employer, Ashland-Greenwood Public Schools (Ashland-Greenwood), has filed this action seeking to shift part of the burden of paying Thorell's weekly permanent total disability benefits to Nebraska's Workers' Compensation Trust Fund (Trust Fund), formerly known as the Second Injury Fund. Ashland-Greenwood asserts that because it retained Thorell in its employment after having knowledge of his preexisting permanent disability, the Trust Fund bears part of the responsibility for such permanent total disability payments under Neb.Rev.Stat. § 48-128 (Reissue 2004). The Nebraska Workers' Compensation Court trial judge found that although the basic requirements of § 48-128 for such contribution by the Trust Fund were satisfied, the provision of such statute that "the employer must establish by written records that [it] had knowledge of the preexisting permanent partial disability . . . at the time the employee was retained in employment" was not proved. Ashland-Greenwood now appeals to this court the affirmance of the trial judge's decision by the Workers' Compensation Court review panel. We hold that the trial judge erred as a matter of law in rejecting Ashland-Greenwood's claim for contribution from the Trust Fund by imposing upon Ashland-Greenwood a requirement of current possession of the written records and by failing to consider the import of the 1987 "[J]oint Application for Approval of Final Lump Sum Settlement" and the order of the district court of Douglas County approving such settlement between Thorell and Ashland-Greenwood. We reverse the decision of the review panel and direct the review panel to remand the matter to the trial judge with directions to determine the nature and extent of the Trust Fund's contribution to Thorell's permanent total disability payments.
Although we are presented with a record containing voluminous exhibits concerning Thorell's medical history over an extended period of time, as well as numerous evaluations of his resulting disability by various counselors, we largely dispense with recitation thereof, because the core facts necessary to resolve this appeal were largely stipulated to by the parties or there is no meaningful dispute about them. Additionally, the decision of the trial judge was detailed, comprehensive, and well organized, and thus provides a convenient backdrop for our review and analysis.
Thorell worked as a teacher for Ashland-Greenwood from 1972 until early in 1998. He suffered a serious back injury arising out of and in the course of such employment in 1979, after which he ultimately underwent three lumbar spine operations. Although he returned to work, he continued to experience residual pain and cramping, and he received intermittent temporary total disability payments for 50 2/7 weeks at the rate of $153.02 per week, together with nearly $32,000 in medical expenses from the 1979 accident and injury.
On November 2, 1987, a "[J]oint Application for Approval of Final Lump Sum Settlement" was filed and approved by the then presiding judge of the Nebraska Workers' Compensation Court. The settlement application named Ashland-Greenwood and its insurer as defendants and Thorell as plaintiff. The settlement provided for a lump-sum payment of $9,554.07, calculated on the basis of "permanent partial disability of 25% to the body as a whole," together with "[a]dditional consideration" of $9,500, for a total settlement of $19,054.07. The record shows that such settlement was also filed in the district court for Douglas County and approved by a judge of that court.
Thereafter, on January 5, 1995, Thorell suffered another injury arising out of and in the course of his employment with Ashland-Greenwood, when he tripped over a student's bookbag, which injury resulted in lumbar spine surgery in March 1998 and cervical spine surgery in October 1998. Thorell has not worked since early 1998 and testified that his condition prevents him from ever returning to work. The January 1995 accident and injury is the subject of this litigation.
On July 23, 2003, Ashland-Greenwood filed its petition in the Workers' Compensation Court against Thorell and the Trust Fund. Ashland-Greenwood alleged that Thorell had suffered injuries to his back in the course of his employment as a result of an accident on January 5, 1995, and that prior to such accident, Thorell had sustained "a significant back injury which resulted in a 25% permanent partial disability to the body as a whole." Ashland-Greenwood further alleged in its petition that it had "specific knowledge of said prior injury throughout the term [of Thorell's] employment, and retained . . . Thorell in [its] employ with full knowledge of the preexisting back injury," and that it retained written records documenting the prior injury. Ashland-Greenwood then alleged the statutory prerequisites of § 48-128, which provides for a shifting of a portion of the liability for the workers' compensation benefits from the employer to the Trust Fund. We summarize § 48-128 as follows: If an employee has a preexisting permanent partial disability, which is likely to be a hindrance or an obstacle to his or her obtaining employment and which was known to the employer prior to the occurrence of any subsequent compensable injury, and such employee receives a subsequent compensable injury resulting in additional permanent partial disability or permanent total disability so that the degree or percentage of disability caused by the combined injuries is substantially greater than that which would have resulted from the last injury considered alone, then the employer at the time of the last injury shall be liable only for the degree or percentage of disability that had resulted from the last injury, and the additional disability shall be compensated out of the Trust Fund.
Thorell's answer to the petition alleged that he is permanently and totally disabled, and we note that § 48-128 does not affect Thorell's payments other than who pays what portion of the benefits. The Trust Fund filed a general denial and prayed that Thorell be awarded benefits from the Trust Fund "only after due proof of all elements set forth in Neb.Rev.Stat. § 48-128 (1993)." Additional facts from the trial evidence will be discussed either in our summary of the trial judge's decision or in our analysis of the issues presented on appeal.
The trial judge's decision began by noting that the parties initially stipulated that Thorell was employed by Ashland-Greenwood on January 5, 1995, at which time he sustained an injury in an accident arising out of and in the course of his employment, and that he gave proper notice of the accident and injury to Ashland-Greenwood. The trial judge found that on January 5, Thorell was earning an average weekly wage of $525 and that he had incurred periods of temporary partial disability and temporary total disability thereafter.
The trial judge first decided the question of the nature and extent of Thorell's injury and its causal nexus to the accident, which the parties had stipulated Thorell suffered. The judge found that Thorell had proved the nature and extent of his injury, as well as the necessary causal connection to his employment. The trial judge then turned to the matter of disability, finding that "the legitimacy of the defendant Thorell's assertion that he was rendered permanently and totally disabled as a result of the stipulated accident does not appear to be in serious contention." Even so, the judge, after referring to specific medical and vocational rehabilitation opinions, which we do not detail, concluded that Thorell was in fact rendered permanently and totally disabled as a result of the January 5, 1995, accident. The judge also found that Thorell was temporarily totally disabled from February 5, 1998, through November 1, 1999, entitling him to temporary total disability payments for such period in the amount of $350 per week and a like amount for permanent and total disability from and after November 1, 1999. Although the trial judge made specific findings and an award with respect to medical benefits, such are not an issue in this appeal, and we discuss that matter no further. The judge made no provision for vocational rehabilitation, citing Thorell's injuries, limitations, and age.
The trial judge then turned to the seminal issue in the case, which he described as "whether or not [Ashland-Greenwood] has sufficiently proven or otherwise established its entitlement to shift liability for the payment of certain [permanent total disability] benefits to the defendant Thorell to the . . . Trust Fund." In the trial judge's discussion of the key issue, he concluded that under § 48-128(1)(b), Ashland-Greenwood must establish by written records that it had knowledge of Thorell's preexisting permanent partial disability at the time Thorell was retained in employment. The trial judge noted the Trust Fund's strenuous objection that "no written records have been produced" by Ashland-Greenwood. The trial judge concluded that "the evidence submitted does indicate that no such written record is to be found." The trial judge found that Ashland-Greenwood "essentially concedes that it lacks the necessary `written record' but argues that it had actual knowledge of [Thorell's] disability." The judge further found that at one...
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