Cummings v. Omaha Public Schools
| Decision Date | 10 February 1998 |
| Docket Number | No. A-97-782,A-97-782 |
| Citation | 6 Neb.App. 478,574 N.W.2d 533 |
| Parties | Edward CUMMINGS, Appellant, v. OMAHA PUBLIC SCHOOLS and ITT Hartford Insurance Co., its Workers' Compensation Insurance Carrier, Appellees. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Workers' Compensation. A determination as to an injured worker's loss of earning capacity is a question of fact to be determined by the Workers' Compensation Court.
2. Workers' Compensation: Expert Witnesses. The Workers' Compensation Court is not bound by the opinions of medical experts.
3. Workers' Compensation: Appeal and Error. An appellate court is precluded from substituting its view of the facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the court.
4. Workers' Compensation. To be apportionable, an impairment must have been independently producing some degree of disability before an accident and must be continuing to operate as a source of disability after the accident.
5. Workers' Compensation: Words and Phrases. In terms of the test for determining when apportionment is appropriate, the term "disability" contemplates impairment of earning capacity, not functional disability.
6. Workers' Compensation: Proof. Psychological injuries are compensable, under certain circumstances, in Nebraska workers' compensation cases, but the burden to prove that a psychological disability is the result of a work-related accident is on the claimant.
7. Workers' Compensation: Appeal and Error. Findings of fact made by the Workers' Compensation Court after review have the same force and effect as a jury verdict and will not be set aside unless they are clearly wrong.
8. Evidence: Appeal and Error. When testing the sufficiency of the evidence in the record to support the findings of fact made by the court, the evidence must be considered in the light most favorable to the successful party.
James E. Harris and Britany S. Shotkoski, of Harris, Feldman Law Offices, Omaha, for appellant.
Joseph W. Grant and Lisa M. Meyer, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellees.
Edward Cummings appeals from an order of the Workers' Compensation Court review panel (panel) which affirmed an order of a trial judge of the Workers' Compensation Court (compensation court) on remand from this court's opinion in Cummings v. Omaha Public Schools, 5 Neb.App. 391, 558 N.W.2d 601 (1997). The compensation court awarded Cummings compensation for a 5-percent disability resulting from a series of work-related accidents in 1992 and 1993 which exacerbated Cummings' back injury from a prior, compensated, work-related accident in 1984. The compensation court further denied Cummings' claim for psychological injuries resulting from the 1992 and 1993 accidents. Cummings appealed to the panel, alleging that the compensation court was clearly wrong in relying on particular medical evidence in assessing his disability; that his disability should not have been apportioned between the prior, compensated injury and the new injuries; and that the court was clearly wrong in denying compensation for the alleged psychological injuries. The panel affirmed the judgment of the compensation court.
Because we find that the compensation court was not clearly wrong in assessing Cummings' disability from the 1992 and 1993 series of accidents at 5 percent or in denying compensation for the alleged psychological injuries, and because we find that the compensation court did not err in apportioning Cummings' disability between the prior, compensated accident and the new accidents, we affirm the judgment of the panel affirming the order of the compensation court.
Cummings is, and was at all times relevant to these proceedings, employed by Omaha Public Schools. In August 1984, Cummings injured his back in a work-related accident. As a result of that accident, Cummings received a lump-sum settlement award based upon a 25-percent disability to his body as a whole. Subsequent to the settlement, Cummings returned to work at a salary equal to or greater than his salary prior to the accident.
On June 1, 1992, Cummings was injured at work when ceiling tiles fell onto him, causing injury to his back and exacerbating his prior back condition. On November 10, Cummings suffered another injury at work when a chair rolled out from under him, causing additional injury to his back and additional exacerbation of his back condition. On March 1, 1993, Cummings fell on ice in the parking lot at work, causing additional injury to his back and additional exacerbation of his back condition. On April 30, Cummings was involved in an altercation at work between a student and a security guard, causing additional injury to his back and additional exacerbation of his back condition. Finally, on November 23, Cummings suffered a back spasm at work which caused him to fall to his knees, additionally exacerbating his back condition.
On June 13, 1994, Cummings filed a petition in the Workers' Compensation Court, seeking compensation for the series of accidents. Cummings alleged temporary total disability, emotional and psychological injuries, and loss of earning capacity. On June 27, Omaha Public Schools and its workers' compensation insurance carrier filed an answer.
On October 17, 1994, a hearing was held before the compensation court. At trial, the parties stipulated that Cummings was injured in a series of work-related accidents, that there was no controversy regarding payment of temporary total disability benefits, and that the only issues remaining at trial concerned Cummings' loss of earning capacity. At trial, Cummings offered evidence, including a medical report and a vocational rehabilitation report, concerning his injuries and loss of earning capacity. Omaha Public Schools and its insurer objected to the admissibility of the two reports, arguing that they had not been timely disclosed and that the medical report was not properly characterized as a rebuttal report. The compensation court sustained the objections to the two exhibits.
The compensation court received other evidence and heard testimony from Cummings and two employees of Omaha Public Schools. Included in the admitted evidence was a medical report from Dr. Lonnie Mercier, who examined Cummings in August 1993. Mercier's examination occurred prior to the back spasm incident in November 1993. The evidence also indicated that an MRI was performed on Cummings sometime after the November 1993 incident and that the MRI was not considered in Mercier's report or conclusions.
On November 8, 1994, the compensation court entered an award in favor of Cummings. The compensation court found that the series of injuries occurred in the course and during the scope of Cummings' employment with Omaha Public Schools and that Cummings was entitled to workers' compensation benefits. The compensation court awarded 10 weeks of temporary total disability benefits. The compensation court further determined that Cummings had suffered a 5-percent loss of earning capacity from the series of injuries and the exacerbation of his prior back condition. The compensation court specifically noted that the determination concerning Cummings' loss of earning capacity was based heavily on Mercier's report. Additionally, the compensation court found that Cummings failed to satisfy his burden of proof regarding the alleged psychological injuries and denied compensation for them. Finally, the compensation court declined to award vocational rehabilitation benefits.
On November 14, 1994, Cummings filed an application for review of the compensation court's award by the panel. Cummings assigned as error the compensation court's reliance on Mercier's report rather than the objective MRI results; the compensation court's acceptance of particular vocational rehabilitation opinions; the compensation court's refusal to accept the two proffered reports into evidence; the compensation court's apportionment of Cummings' disability between his prior, compensated injury and the new series of injuries; the compensation court's denial of any compensation for alleged psychological injuries; and the compensation court's specific finding that Cummings could obtain the same or a similar salary from a different employer if his employment with Omaha Public Schools was for some reason ended.
On March 21, 1995, the panel affirmed the compensation court's award in all respects except concerning the compensation court's ruling on the admissibility of the two reports offered by Cummings. The panel ruled that the exhibits should not have been excluded on the basis upon which the compensation court excluded them, and the panel remanded the case on the limited issue of loss of earning capacity.
On May 5, 1995, the compensation court entered an order on remand. The compensation court noted that the exhibits had been received and that all of the evidence had been reconsidered. The compensation court once again concluded that Cummings' loss of earning capacity from the series of accidents was 5 percent.
On May 19, 1995, Cummings filed another application for review of the compensation court's opinion. Cummings assigned the same six errors as in his first application for review, except with regard to the previous assignment concerning the admissibility of the exhibits. In place of that assigned error, Cummings assigned as error that the compensation court's ruling was contrary to the evidence.
On April 24, 1995, the panel entered an order. The panel held that the assignments of error which had been previously rejected on the first review were not reviewable a second time, because of the law-of-the-case doctrine. With regard to the new assignment of error, the panel affirmed the compensation court's findings. Cummings timely appealed from that...
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