Davis v. Crete Carrier Corp.

Decision Date12 December 2006
Docket NumberNo. A-05-1328.,A-05-1328.
Citation725 N.W.2d 562,15 Neb. App. 241
PartiesJohn DAVIS, Appellee and Cross-Appellant, v. CRETE CARRIER CORPORATION AND TRANSPORTATION CLAIMS, INC., its Workers' Compensation Insurer, Appellants and Cross-Appellees.
CourtNebraska Court of Appeals

Jill Gradwohl Schroeder, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellants.

Raymond P. Atwood, Jr., and Eric B. Brown, of Atwood, Holsten & Brown, P.C., L.L.O., Lincoln, for appellee.

IRWIN, MOORE, and CASSEL, Judges.

MOORE, Judge.

INTRODUCTION

John Davis filed a motion in the Nebraska Workers' Compensation Court against Crete Carrier Corporation and its workers' compensation insurer, Transportation Claims, Inc. (collectively the Appellants), seeking to assess waiting-time penalties, interest, and attorney fees pursuant to Neb.Rev.Stat. § 48-125 (Reissue 2004). Davis alleged that the Appellants unilaterally stopped paying temporary total disability benefits which he was awarded under a February 2, 1993, award on rehearing. Davis asserted entitlement to ongoing temporary total disability benefits from October 1994, when his indemnity benefits for temporary total disability stopped, until the hearing on the motion, or at least October 2, 2003, when he filed the motion. Davis also claimed there was no reasonable controversy regarding the Appellants' liability. The trial judge denied Davis' motion. Davis appealed and the Appellants cross-appealed to a Nebraska Workers' Compensation Court three-judge review panel. The Appellants have appealed to this court from the review panel's order of reversal and remand on review, and Davis has cross-appealed. For the reasons set forth herein, we affirm in part, and in part reverse.

BACKGROUND

Davis sustained a compensable back injury on March 26, 1989, while employed by Crete Carrier Corporation. On February 2, 1993, after other proceedings not relevant to the present appeal, the compensation court entered an award on rehearing. With regard to disability, the court determined, in paragraph III of the award, as follows:

At the time of said accident and injury [Davis] was receiving an average weekly wage of $501.52 being sufficient to entitle him to benefits of $245.00 per week for a period of 105-1/7 weeks for temporary total disability compensation and thereafter and in addition thereto the sum of $117.02 per week for 10 weeks of permanent partial disability compensation and thereafter and in addition thereto the sum of $245.00 per week from and including June 15, 1991 to and including the date of this rehearing on September 28, 1992 for total disability compensation and thereafter and in addition thereto the sum of $245.00 per week for so long in the future as [Davis] shall remain totally disabled as a result of said accident and injury. When [Davis'] total disability ceases, he shall be entitled to the statutory amounts of compensation for any residual permanent partial disability due to this accident and injury.

The court awarded certain medical and hospital expenses, including future medical and hospital services and such treatment "as may be reasonably necessary as a result of said accident and injury." In paragraph IX of the award, the court stated, "[Davis] is still entitled to vocational rehabilitation services at such time as he is able to participate in said services. If the parties are unable to eventually agree on the nature and/or extent of said vocational rehabilitation services, either party may request a hearing on this issue." In paragraph XII of the award, the court stated, "When [Davis'] total disability ceases if thereafter the parties cannot agree on the extent of [Davis'] disability, if any, then a further hearing may be had herein on the application of either party."

In November 1993, the compensation court entered an order, stating that "[p]ursuant to the stipulation of [Davis] and [the Appellants], received November 18, 1993 [the Appellants are] hereby ordered to pay to [Davis] temporary disability compensation while [Davis] is undergoing vocational rehabilitation and maintaining satisfactory progress in the plan of which the stipulation is a part." The order is dated November 23, 1993, but is file stamped November 18. The record shows that Davis participated in a training program at a motorcycle mechanics' institute in Phoenix, Arizona, from December 13, 1993, through October 28, 1994.

The Appellants began paying Davis permanent partial disability benefits on October 29, 1994. On December 29, the Appellants stopped all disability payments to Davis after they had paid 300 weeks of benefits.

On October 2, 2003, Davis filed a motion seeking an order to assess waiting-time penalties, interest, and attorney fees pursuant to § 48-125. Davis alleged that on February 2, 1993, he received a running award of temporary total disability benefits, and that in 1994, the Appellants unilaterally stopped paying such benefits to Davis. Davis alleged that the Appellants were in arrears and liable to him for such delinquent benefits from the date of termination of payment to the date of the hearing on his motion. Davis further alleged that there was no reasonable controversy regarding the Appellants' liability to him and that the Appellants were thus also liable to him for waiting time, interest, and attorney fees for all delinquent payments due. Davis asked the court to sustain his motion, determine the delinquencies of the Appellants, and order the Appellants to pay waiting-time penalties, interest, and attorney fees.

The Appellants filed a motion for summary judgment on August 31, 2004. The Appellants alleged that there was no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. The Appellants alleged that they paid to Davis the benefits ordered by the court on February 2 and November 23, 1993, and that the November 23 order superseded or modified the February 2 award on rehearing. The Appellants also asserted that Davis' claim for further benefits was barred by the statute of limitations set forth in Neb.Rev.Stat. § 48-137 (Reissue 2004), the law-of-the-case doctrine, the doctrine of res judicata, the doctrine of issue preclusion, the doctrine of laches, and the doctrine of unclean hands. The Appellants asserted that the compensation court had jurisdiction pursuant to Neb.Rev.Stat. § 48-161 (Reissue 2004) to decide any issue ancillary to the resolution of Davis' right to compensation benefits, including the issues raised by the Appellants in their motion for summary judgment.

Following an evidentiary hearing, the compensation court entered an order overruling the Appellants' motion for summary judgment on September 29, 2004. The court concluded that the 2-year statute of limitations does not apply to a case where a petition has been filed and an award entered. The court found that the doctrines of issue preclusion, res judicata, and the law of the case did not act to bar Davis' claim. The court observed that it was not a court of equity and had no equitable powers, thus concluding that it was unable to apply the equitable doctrines of laches and unclean hands. Finally, with regard to whether there was a reasonable controversy concerning Davis' right to relief, the court found that it must make a factual determination.

The compensation court heard Davis' motion for waiting-time penalties, interest, and attorney fees on September 30, 2004. In addition to receiving various exhibits offered by the parties, the court heard testimony from Davis. Davis testified that he received certain benefits from the Appellants due to a work-related injury he sustained in 1989 and that those benefits ceased around the end of November 1994. Davis testified that from the end of November 1994 until September 2003, he neither received nor requested any further benefits from the Appellants. Davis testified that he did not contact any representative of the Appellants during that time because he was told by his attorney in approximately 1993 or 1994 that he had "X number of weeks of benefits and that would be it." When he stopped receiving indemnity checks, Davis assumed, based on what his attorney had told him, that that was "the end of the number of weeks that [he was] entitled to" receive.

Davis testified that he sought employment in the field of motorcycle mechanics after completing his vocational rehabilitation training but was unable to locate employment with a motorcycle dealership. The record shows that after December 1994, Davis was employed as a taxi driver by, or leased a vehicle to, various cab companies for certain periods between approximately 1995 and 2000. Under the lease agreements, Davis had other individuals available to drive the cabs and only drove occasionally himself because of his back injury. At the time of the hearing on Davis' motion, Davis was not employed or operating under any type of lease agreement with any cab company. Davis testified that he lost money in his endeavors as a cabdriver/lessor, eventually filing for bankruptcy in September 2000. Davis testified that he did not disclose all of the information regarding the cab company leases in certain interrogatories from the Appellants because he thought the questions were asking whether he was actually employed by someone.

One exhibit received by the court was a letter, dated November 23, 1993, from Dr. William Fulcher, one of Davis' treating physicians, to a rehabilitation services professional. In the letter, Dr. Fulcher stated that Davis had reached maximum medical improvement and had a 25-percent medical impairment rating of the body as a whole.

The compensation court entered an order on May 5, 2005, overruling Davis' motion. The court outlined Davis' claim and found the evidence uncontradicted that the Appellants stopped all payments to Davis on December 29, 1994, after...

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