Carr v. Ganz

• Decision Date: 12 June 2018
• Docket Number: No. A-17-161.,A-17-161.
• Citation: 26 Neb.App. 14,916 N.W.2d 437
• Court: Nebraska Court of Appeals
• Parties: Richard CARR, appellant, v. Gordon GANZ, doing business as G & H Farms, appellee.

26 Neb.App. 14

916 N.W.2d 437

Richard CARR, appellant,

v.Gordon GANZ, doing business as G & H Farms, appellee.

No. A-17-161.

Court of Appeals of Nebraska.

Filed June 12, 2018.

Ryan C. Holsten and Brynne Holsten Puhl, of Atwood, Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., Lincoln, for appellant.

John W. Iliff and Adam J. Wachal, of Gross & Welch, P.C., L.L.O., Omaha, for appellee.

Moore, Chief Judge, and Inbody and Bishop, Judges.

Inbody, Judge.

INTRODUCTION

Richard Carr appeals the Nebraska Workers’ Compensation Court’s denial of his motion to compel Gordon Ganz, doing business as G & H Farms, to pay for Carr’s coronary artery bypass procedure. Specifically, Carr appeals the compensation court’s orders on December 23 and 30, 2016, and January 19, 2017. Because we conclude the December 30, 2016, order modified the December 23 order to reserve disposition of some of the issues, the December 23 order was not final and appealable until the January 19, 2017, order. Thus, we find Carr’s February 7 notice of appeal was timely filed and we have jurisdiction to consider the appeal. For the reasons set forth below, we reverse the compensation court’s order pertaining to the compensability of Carr’s coronary artery bypass procedure and remand the cause for further proceedings.

FACTUAL BACKGROUND

In January 2012, while employed by Ganz, Carr was "bucked off" a horse and injured in the course of his employment. Specifically, Carr received the following injuries due to the accident: symphysis pubis and sacral fractures, hernia, urinary incontinence, and erectile dysfunction. Following a petition filed with the Nebraska Workers’ Compensation Court, the parties entered into a stipulation in April 2014, and the court entered an award pursuant to this stipulation wherein Carr was awarded temporary total disability benefits to be paid by Ganz until Carr reached maximum medical improvement for his injuries. The court stated "[Ganz] is to pay for [Carr’s] future medical care all as required by [Neb. Rev. Stat.] § 48-120 [ (Cum. Supp. 2016) ]."

In February 2015, Carr filed a petition for further award in which he alleged that his doctors felt a "penile prosthesis [was] required" before he would reach maximum medical improvement and that such surgery could not be performed without him first undergoing a heart catherization that Ganz refused to authorize. After the petition was filed, Ganz agreed to pay for the heart catherization and Carr subsequently submitted a notice of dismissal of the petition without prejudice. A dismissal was ordered by the court in July 2015.

Due to the results of the heart catherization, Carr underwent a coronary artery bypass procedure to address issues prior to his penile prosthesis. In May 2016, Carr filed a motion to compel Ganz to pay for the coronary artery bypass procedure. Carr supported his motion by stating that "[p]rior to undergoing the penile prosthesis surgery, [Carr] was required to undergo cardiac treatment [for which Ganz] refused to pay," and Carr asked that "a hearing be held before the Nebraska Workers’ Compensation Court and an Order entered compelling payment of outstanding medical bills." In a hearing on the motion, Carr offered various exhibits pertaining to his health expenses, including expenses for the coronary artery bypass procedure, other expenses related to treatment for his injuries, mileage, and attorney fees. Ganz objected to these exhibits and specifically as to any information they contained which documented expenses unrelated to the coronary artery bypass procedure, arguing that they went beyond the scope of Carr’s motion. In making this objection, Ganz’ counsel stated:

We’re here for a motion to compel on one issue alone, and I believe the stipulated award indicates concisely what the injuries consisted of. And [these offered exhibits and their outlining of other medical expenses, mileage, and attorney fees] really [have] no bearing on this particular motion and also [are] duplicative and not necessary.

The court overruled Ganz’ objection.

On December 23, 2016, the compensation court denied Carr’s request to compel Ganz to pay medical expenses for the coronary artery bypass procedure. In reaching this determination, the court stated:

Section 48-120(1)(a) requires an employer to pay for medical services which are required by the nature of the injury and which will relieve pain or promote and hasten the employee’s restoration to health and employment. There is no question that the [coronary artery bypass procedure] would relieve pain or promote and hasten [Carr’s] restoration to health and employment because [the procedure] is necessary to enable [Carr] to undergo the [penile prosthesis surgery ] which will enable [Carr] to reach maximum medical improvement, relieve pain, and allow [Carr] to return to employment. The real issue is whether or not the coronary artery bypass[procedure] was required by the nature of the injury.

The court went on to provide a test for determining when a medical procedure is required by the nature of the injury, and explained:

The test is whether or not there is a reasonable relationship between the accident at work and the medical condition found after the accident. In this case, the coronary blockage is not part of the nature of the injury and has no reasonable relationship to the injuries suffered in the accident.

This order further contained reference to a lump-sum settlement and mentioned such a settlement could impact the imposition of benefits, but the order was otherwise silent as to the other medical expenses, mileage, and attorney fees discussed at the hearing.

On December 30, 2016, the court entered an "Order Nunc Pro Tunc" wherein the court stated that it had been "notified" by counsel of certain minor errors in the December 23 order, including that no such lump-sum settlement occurred and that the court had neglected to address issues of medical expenses, mileage, and attorney fees. Specifically, the court stated:

The Court finds counsel are correct, and, as a result, the Order entered December 23, 2016 is not a final order. A further hearing must be held to correct the order and address medical expenses, mileage, attorney fees, and to correct the portion of the Order on lump sum settlement and erectile dysfunction surgery.

The December 30 order set a further hearing on those issues for January 2017, and the court again denied Carr’s request to compel Ganz to pay for the medical expenses for the coronary artery bypass procedure.

On January 19, 2017, the court entered an order requiring Ganz to pay $324 associated with other medical expenses, $500 in attorney fees, and calculated mileage amounts. The court added that "[t]he case is now final." Carr appealed on February 7, which is timely from the January 19 order but not from the December 23, 2016, order.

ASSIGNMENT OF ERROR

Carr assigns, restated, that the Nebraska Workers’ Compensation Court erred as a matter of law in determining his coronary artery bypass procedure was not compensable under Neb. Rev. Stat. § 48-120 (Cum. Supp. 2016).

STANDARD OF REVIEW

A judgment, order, or award of the Workers’ 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. Damme v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014). We independently review questions of law decided by a lower court. Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).

ANALYSIS

JURISDICTION

Carr appeals the compensation court’s denial of his request that Ganz be ordered to pay for the coronary artery bypass procedure. Although an initial order denied the request on December 23, 2016, Carr argues it was not a final, appealable order because the December 30 order reserved issues for later determination which were finally determined in the January 19, 2017, order. Because the December 23, 2016, order was not a final, appealable order until the January 19, 2017, order was entered, Carr asserts his filing of a notice of appeal on February 7 was within the 30-day requirement of Neb. Rev. Stat. § 48-182 (Cum. Supp. 2016).

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002) ; Waite v. City of Omaha, 263 Neb. 589, 641 N.W.2d 351 (2002). For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Larsen v. D B Feedyards, supra. When an appellate court is without jurisdiction to act, the appeal must be dismissed. Id.

Once a final order is entered, § 48-182 and Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016) provide the procedure for a party to appeal that order. Within §§ 48-182 and 48-185 is the requirement that once a final order is entered, the parties have 30 days to file a notice of appeal with the compensation court. Any appeal in which notice is not filed within the 30-day period must be dismissed for lack of jurisdiction. See id.

In the instant case, Carr filed a motion seeking to compel Ganz for the "payment of outstanding medical bills," including for the coronary artery bypass procedure. In the hearing on the motion, Carr offered various exhibits pertaining to his health expenses, including for the coronary artery bypass procedure, other expenses related to treatment for his injuries, mileage, and attorney fees. Ganz objected to these exhibits as to any information they contained which documented expenses unrelated to the coronary artery...