Bassinger v. Nebraska Heart Hosp.
| Decision Date | 09 December 2011 |
| Docket Number | No. S–10–653.,S–10–653. |
| Citation | 282 Neb. 835,806 N.W.2d 395 |
| Parties | Jennifer BASSINGER, appellee and cross-appellant, v. NEBRASKA HEART HOSPITAL, appellant and cross-appellee. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. On appellate review of a workers' compensation award, the trial judge's factual findings have the effect of a jury verdict and will not be disturbed unless clearly wrong.
2. Courts: Appeal and Error. An appellate court independently decides questions of law.
3. Statutes. Statutory interpretation presents a question of law.
4. Judgments. The interpretation and meaning of a prior opinion present a question of law.
5. Courts: Appeal and Error. Generally, when a party raises an issue for the first time in an appellate court, the court will disregard it because a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.
6. Courts: Appeal and Error. A party is not required to ask a lower court not to follow a controlling decision from an appellate court to preserve for appeal an issue that the party claims the appellate court incorrectly decided.
7. Workers' Compensation: Statutes: Intent: Appeal and Error. The intent of the Nebraska Workers' Compensation Act is to provide benefits for employees who are injured on the job, and an appellate court will broadly construe the act to accomplish this beneficent purpose.
8. Statutes: Legislature: Public Policy. It is the Legislature's function through the enactment of statutes to declare what is the law and public policy.
9. Workers' Compensation: Courts: Jurisdiction. Because the Workers' Compensation Court does not have equity jurisdiction, it cannot apply remedies of rescission and estoppel that are not statutorily authorized.
10. Workers' Compensation: Case Overruled. The Nebraska Supreme Court's decision in Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281 N.W.2d 399 (1979), adopting an equitable misrepresentation defense, was clearly erroneous and is overruled.
Tiernan T. Siems and Sara A. Lamme, of Erickson & Sederstrom, P.C., Omaha, for appellant.
Brody J. Ockander, of Rehm, Bennett & Moore, P.C., L.L.O., for appellee.
The Workers' Compensation trial judge found that the appellee, Jennifer Bassinger, had misrepresented her history of work-related injuries on a preemployment questionnaire and dismissed her petition for benefits. The three-judge review panel reversed, and remanded for further proceedings on whether a causal relationship existed between Bassinger's misrepresentation and her later injury.
In her cross-appeal, Bassinger argues that the review panel exceeded its authority in permitting an employer to deny benefits based on an affirmative misrepresentation defense. Summed up, she claims that the misrepresentation defense that we adopted in Hilt Truck Lines, Inc. v. Jones 1 is a limitation on benefits that is not authorized by the Nebraska Workers' Compensation Act (the Act).2 We agree.
In 1996, Bassinger started work as a certified nurse aide (CNA) at a nursing home in Syracuse, Nebraska. In 2000, she strained her lower back muscles while moving a patient, an injury that was treated with physical therapy. Workers' compensation benefits covered the treatment, and she fully recovered.
Beginning in 2001, she worked as a CNA for BryanLGH Medical Center, a hospital in Lincoln, Nebraska. In October, while lifting a patient, she developed right low-back pain. She was treated for chronic sacroiliac joint dysfunction. Later, her physician noted disk problems in addition to the joint problem, but he did not recommend treatment. He did not give Bassinger a permanent impairment rating because her pain was under control. But he noted that she had agreed with his recommendation that she should perform only light-duty work. In November 2003, she agreed to a lump-sum settlement of $5,000 for her injury at BryanLGH Medical Center.
In March 2006, Bassinger began work as a CNA at Nebraska Heart Hospital (the hospital). The hospital's preemployment questionnaire asked Bassinger to respond to questions about her history of work-related injuries and her physical condition. She reported only her injury at the Syracuse nursing home. She did not report her 2001 injury at BryanLGH Medical Center.
In her preemployment physical, the hospital's nurse reported that Bassinger could perform the physical tests without pain. But in April 2008, while lifting a patient, she injured her back and experienced instant pain in her lower back and down her leg. She testified that the piercing pain she experienced was different from what she had experienced in 2001. Physical therapy and medications did not alleviate her symptoms from the 2008 injury.
She continued to perform light-duty work at the hospital until she was discharged in July 2008. The hospital discharged her because she could not work during the day, the only time that the hospital offered her light-duty work. In October, she elected to undergo a spinal fusion surgery with a different physician, which successfully alleviated her symptoms.
In July 2008, Bassinger petitioned for workers' compensation benefits. In August 2009, the trial judge dismissed her petition. The judge found that Bassinger had willfully misrepresented her work-related injury history when she failed to disclose any information about her 2001 injury. In concluding that the hospital could deny benefits because of Bassinger's misrepresentation, the judge relied on the rule we adopted in Hilt Truck Lines, Inc.3 He concluded that the hospital satisfied the causation component of the rule because the hospital would not have hired her had she truthfully reported her previous injury: “It is clear that [Bassinger's] misrepresentations allowed her to pass through the [hospital's] efforts to screen out people who are physically limited in some way that would make them either incapable of performing the tasks required or somehow be put in danger of reinjury.”
Bassinger appealed to the review panel. The review panel addressed only her assignment that the trial judge erred in finding a causal connection between her misrepresentation and her 2008 injury. It concluded that Hilt Truck Lines, Inc. required the hospital to show a direct causal relationship between the 2001 injury that Bassinger concealed and her 2008 injury. It reversed the trial judge's order and remanded the case for further findings on causation under its corrected standard.
The hospital assigns that the review panel erred in determining that the trial judge applied the wrong causation standard.
On cross-appeal, Bassinger assigns that the trial judge and review panel improperly applied a misrepresentation defense that the Act does not authorize.
On appellate review of a workers' compensation award, the trial judge's factual findings have the effect of a jury verdict and will not be disturbed unless clearly wrong. But we independently decide questions of law.4 Statutory interpretation presents a question of law. 5 The interpretation and meaning of a prior opinion present a question of law.6
The hospital contends that the trial judge applied the correct causation standard. It argues that the review panel incorrectly interpreted Hilt Truck Lines, Inc. to require a direct causal relationship between Bassinger's misrepresentation and her work injury. Bassinger contends that the review panel's direct causation requirement was correct—assuming that Hilt Truck Lines, Inc. adopted an affirmative defense for misrepresentation under the Act.
But in her cross-appeal, Bassinger contends that Hilt Truck Lines, Inc. created a limitation on workers' compensation benefits that the Act does not authorize. Because we conclude that our decision in Hilt Truck Lines, Inc. was clearly erroneous, we do not analyze whether the lower courts correctly applied the causation factor of the misrepresentation defense.7
Bassinger contends that the trial court and review panel exceeded their authority by applying a misrepresentation defense because the Act does not authorize such a defense. She argues that because this court's limitation on compensation benefits from Hilt Truck Lines, Inc. is not supported by the Act, the trial court's reliance on that decision and the review panel's acceptance of its application were contrary to law.
The hospital responds that Bassinger has waived this argument by not presenting it to the review panel. It alternatively argues that even if she has not waived it, it is without merit because the lower court had no alternative but to follow this court's precedent. The hospital's second argument succinctly sums up why Bassinger has not waived her argument.
It is generally true that when a party raises an issue for the first time in an appellate court, the court will disregard it because a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.8 Alternatively, the rule rests upon the principle that a party may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.9 Neither of these rationales applies here.
The crux of Bassinger's cross-appeal is that our decision in Hilt Truck Lines, Inc. was wrong. The hospital cites no authority holding that a party must ask a lower court not to follow a controlling decision from this court to preserve for appeal an issue that the party claims we incorrectly decided. Requiring parties to ask a lower court to ignore our decision would obviously be inconsistent with the doctrine of stare decisis, which compels...
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