Boring v. Zoetis LLC

• Decision Date: 21 May 2021
• Docket Number: No. S-20-275.,S-20-275.
• Citation: 959 N.W.2d 795,309 Neb. 270
• Parties: Martin BORING, appellee, v. ZOETIS LLC, appellant.
• Court: Nebraska Supreme Court

309 Neb. 270

959 N.W.2d 795

Martin BORING, appellee,

v.ZOETIS LLC, appellant.

No. S-20-275.

Supreme Court of Nebraska.

Filed May 21, 2021

Eric T. Lanham, Sarah N. Boston, and A. Francesca Romano, of McAnany, Van Cleave & Phillips, P.A., for appellant.

Ryan C. Holsten, Lincoln, and Nolan J. Niehus, Senior Certified Law Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel Law Firm, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

Martin Boring filed a petition in the Nebraska Workers’ Compensation Court (WCC) against Zoetis LLC, in which he claimed a compensable injury arising from his employment with Zoetis. The WCC awarded Boring, inter alia, temporary and permanent benefits, and it ordered Zoetis to pay Boring penalties and attorney fees pursuant to Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016). Zoetis appealed to the Nebraska Court of Appeals, which affirmed the award of benefits but reversed and vacated the award of penalties and attorney fees.

We granted Boring's petition for further review in which he assigned error to the Court of Appeals’ decision that reversed and vacated the award of penalties and attorney fees. We determine that the WCC erred when it found that there was no reasonable controversy based solely on its reliance on the judicial admission in Zoetis’ answer, the effect of which Zoetis had later been relieved. Because the case was tried without reliance on a judicial admission, the WCC should have made its finding as to whether there was a reasonable controversy based on the evidence actually presented at trial. On appeal, the Court of Appeals reversed the award of penalties and attorney fees. On further review, although we articulate the rationale slightly differently, we affirm.

STATEMENT OF FACTS

Boring was employed by Zoetis from June 2004 to September 2017. In October 2018, Boring filed a petition with the WCC in which he generally claimed a compensable injury arising from his employment with Zoetis. In paragraph 3 of the petition, Boring alleged that on February 7, 2017, he "sustained a work accident and injuries to his right upper extremity arising out of and in the course of his employment with" Zoetis. In paragraph 5, Boring alleged that "the matter or matters in dispute include the compensability of past, present, and future medical expenses, temporary disability and waiting time, interest and attorney's fees and, to the extent [Boring] has reached maximum medical improvement at the time of trial, permanent impairment benefits." Finally, in paragraph 6, Boring alleged that

no reasonable controversy exists concerning the compensability of [Boring's] claim, and yet, despite more than thirty (30) day [sic] notice of [Boring's] accident and injuries, [Zoetis] has failed and refused to make payment to [Boring] of compensable medical and mileage expenses and indemnity benefits, and [Boring] is therefore entitled to interest, costs, waiting time and attorney's fees in accord with ... § 48-125.

In its answer, Zoetis admitted portions of Boring's petition, including, inter alia, the allegations set forth in paragraph 3, in which Boring alleged that he had sustained a work-related accident and injury to his right upper extremity on February 7, 2017. With regard to both paragraphs 5 and 6, regarding the extent of compensation and penalties respectively, Zoetis stated that it was "without knowledge to form a belief as to the allegations contained in" each of the paragraphs and that it therefore denied paragraphs 5 and 6.

A trial was held on October 29, 2019. Without objection, the WCC received into evidence a stipulation signed by both parties. They stipulated to, inter alia, the award to which Boring would be entitled "[s]hould the [WCC] find [Boring] suffered a compensable accident and injury." Boring testified at trial, and Zoetis presented testimony by a nurse practitioner who operated Zoetis’ occupational health clinic and treated Boring after he reported an injury in 2017. Without going into details here, the record at trial showed that Boring's condition had been evaluated by a variety of health professionals, in addition to the foregoing nurse practitioner. These individuals included Dr. George Hansen, Dr. Patrick Hurlbut, a physical therapist, Dr. Kirk Hutton, and Dr. Michael Morrison. There were widely differing views about causation and the extent of Boring's injury. In addition, there was a debate among the professionals as to whether Boring tripped in the autumn of 2017 and, if so, the consequences of such incident.

After the trial, on January 30, 2020, the WCC filed an order in which it found that on February 7, 2017, Boring injured his right shoulder in an accident arising out of and in the scope of his employment, and that such injury led to surgery on his shoulder. The WCC dedicated nearly six pages of its order to assessing the competing medical evidence. The WCC awarded Boring temporary and permanent benefits, payment for future medical care, a vocational evaluation and vocational rehabilitation services, and medical bills and mileage.

The WCC also addressed Boring's request for penalties and attorney fees. The WCC rejected Zoetis’ argument in which it contended that there was a reasonable controversy and that therefore, Boring was not entitled to penalties and attorney fees under § 48-125. Notwithstanding the trial record and the WCC's extensive weighing of the evidence that led it to find a compensable injury, the WCC proceeded in the remainder of its analysis as though injury had not been an issue. In its order, the WCC stated that Zoetis "admitted in its Answer that on February 7, 2017 [Boring] sustained a work accident and injuries to his right upper extremity arising out of and in the course of his employment with [Zoetis]." The WCC cited precedent to the effect that an admission in a pleading is a judicial admission, which is a substitute for evidence.

The WCC reasoned that Zoetis’ judicial admission relieved Boring of the burden to produce evidence that he injured his right shoulder on February 7, 2017, and that as a result of such admission Zoetis was "liable for treatment and medical care of [Boring's] right shoulder and the payment of weekly benefits." The WCC further reasoned that Zoetis’ admission of "the accident and injury entitles [Boring] to a penalty and attorney's fees for nonpayment of medical expenses and nonpayment of weekly benefits." After a subsequent hearing, the WCC ordered Zoetis to pay a penalty of $408.50 per week for late payment of temporary benefits that were due April 18, 2018, through July 1, 2019, and a penalty of $408.50 per week for 33.75 weeks for late payment of permanent benefits. The WCC also ordered that Boring was entitled to a reasonable attorney fee of $15,333.

Zoetis appealed the WCC's award to the Court of Appeals. Zoetis claimed that the WCC erred when it found that Boring's injury arose out of and in the course of his employment and that he was entitled to temporary and permanent benefits, payment for past and future medical expenses and mileage, and a vocational evaluation and vocational rehabilitation services. Zoetis also claimed that the WCC erred when it awarded penalties and attorney fees. The Court of Appeals generally affirmed the award but reversed the portion of the order in which the WCC awarded penalties and attorney fees pursuant to § 48-125.

In a memorandum opinion, the Court of Appeals first addressed the WCC's finding that Boring's injury arose out of and in the course of his employment. See Boring v. Zoetis LLC , No. A-20-275, 2020 WL 7227304 (Neb. App. Dec. 8, 2020) (selected for posting to court website). The Court of Appeals began its analysis by rejecting Boring's argument that by admitting paragraph 3 of Boring's petition, Zoetis made a judicial admission that constituted a waiver of its right to challenge the finding that Boring's shoulder injury arose out of and in the course of his employment with Zoetis. The Court of Appeals reasoned that Zoetis’ admission to paragraph 3 constituted only an admission to "some work-related accident and injury suffered by Boring on February 7, 2017," but that Zoetis’ denial of paragraph 6 of Boring's petition made it "equally clear that Zoetis disputed the nature and extent of that injury and the benefits attributable thereto." Id. at *7. The Court of Appeals characterized Zoetis’ position as being that "although Boring may have suffered a minor strain on February 7, 2017, that injury eventually healed and Boring was treated for a different shoulder injury by 2018 which required two surgeries," and that therefore, "Boring's injury on February 7, 2017, was, at best, a mild strain and did not support the stipulated benefits which were the result of a different injury." Id. The Court of Appeals concluded that "Zoetis did not admit to the full extent of injury claimed by Boring." Id.

The Court of Appeals proceeded to consider whether Boring presented sufficient evidence to support the WCC's finding that the injury which required surgery arose out of and in the course of Boring's employment with Zoetis. After reviewing the evidence, the Court of Appeals determined that there was sufficient evidence and it therefore affirmed the finding. The Court of Appeals further considered Zoetis’ claims that the evidence did not support the WCC's awards of temporary and permanent benefits, and medical expenses and mileage, the amount of which awards was stipulated by the parties. The Court of Appeals concluded that because the record supported the finding that the injury requiring surgery arose out of and in the course of Boring's employment with Zoetis, the WCC did not err when it awarded the stipulated benefits. The Court of Appeals therefore affirmed the awards, and it further affirmed the award relating to a vocational evaluation and vocational rehabilitation services.

Finally, the Court of Appeals...