Dawes v. Wittrock Sandblasting & Painting

Decision Date01 August 2003
Docket NumberNo. S-02-889.,S-02-889.
Citation266 Neb. 526,667 N.W.2d 167
PartiesJimmy M. DAWES, Appellant and Cross-Appellee, v. WITTROCK SANDBLASTING & PAINTING, INC., and Continental Western Group, doing business as Union Insurance Company, its workers' compensation insurer, Appellees and Cross-Appellants.
CourtNebraska Supreme Court

Jeffry D. Patterson, of Bartle & Geier Law Firm, for appellant.

Dallas D. Jones and Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellees.



The appellant, Jimmy M. Dawes, was awarded benefits by a single judge of the Nebraska Workers' Compensation Court, but that award failed to address some of the issues presented by Dawes' petition. A review panel of the compensation court affirmed some aspects of Dawes' award, but ordered that other issues be remanded to the single judge for further consideration. Dawes appeals from the order of the review panel. Dawes filed a petition to bypass review by the Nebraska Court of Appeals, which was supported by the other parties to the appeal. We granted the petition in order to address whether the single judge's award, because it did not expressly dispose of all the issues before the court, was a final, appealable order.


The claimant, Dawes, injured his back in January 1996, while performing duties for his employer, Wittrock Sandblasting & Painting, Inc. (Wittrock). In August 1996, Dawes stopped work and sought medical attention for his injury. Dawes underwent surgery to correct a herniated lumbar disk at L4-5. Dawes returned to work in October 1996.

At the time of the 1996 injury, Dawes was covered by his wife's health insurance. The record contains two letters, dated September 20, 1996, to Dawes from Union Insurance (Union), Wittrock's workers' compensation insurance carrier. One letter, memorializing a telephone call, stated that Dawes' claim for workers' compensation benefits had been denied. The second letter, referencing the same telephone call as the first, stated that "in the spirit of compromise," Union would provide Dawes with lost-time benefits, as well as reimbursement for any out-of-pocket expenses.

The purpose of the first letter, according to Union's claims representative, was for Dawes to show the letter of "denial" to his wife's health insurance carrier, so that his medical expenses would be covered by his wife's insurance. In actuality, however, Union paid Dawes benefits for temporary total disability and temporary partial disability pursuant to the terms of the agreement expressed in the second letter. The last such payment resulting from the 1996 injury was made on February 10, 1998. Dawes sought medical care for back pain on a few occasions in early 1997 and had an isolated snow-shoveling incident in March 1998. Dawes also began to seek medical treatment for back pain in the summer of 1999. Dawes seriously injured his back in October 1999 and stopped work to seek medical treatment. Dawes underwent an anterior lumbar interbody fusion at L4-5 and L5-S1, performed by Dr. Tim Watt. In February 2000, Union refused Dawes' claim for workers' compensation coverage for the 1999 injury.


Dawes filed a petition in the Workers' Compensation Court in March 2000, and an operative amended petition in September. On December 4, 2001, the single judge of the compensation court entered an award providing workers' compensation benefits to Dawes for disability resulting from the 1999 injury. Specifically, the single judge determined that "the heavy labor that [Dawes] performed over the years with [Wittrock] resulted in a repetitive trauma injury to his low back and specifically a new injury on October 25, 1999."

The single judge determined that Dawes was entitled to temporary total disability benefits for the period between October 25, 1999, and June 20, 2000, and permanent partial disability benefits thereafter based on a 40-percent loss of earning capacity. The single judge based this determination on a letter dated June 20, 2000, releasing Dawes to return to work with a 15-pound lifting restriction. The letter was signed by Dr. Watt's nurse practitioner, "dictating for" Dr. Watt. The single judge also ordered payment of certain medical expenses incurred after the October 1999 injury. The single judge found that Dawes' health insurance carrier was entitled to reimbursement for any expenses it may have paid.

The single judge also determined that the 1996 injury was the result of a work-related accident. However, since the last payment made as a result of that accident occurred in February 1998, and Dawes' first petition was filed in March 2000, the single judge determined that any claim relating to the 1996 injury was time barred by Neb.Rev.Stat. § 48-137 (Reissue 1998). The single judge therefore found it unnecessary to determine if the "compromise" between Dawes and Union was, in fact, payment of benefits within the meaning of § 48-137. The single judge eliminated all medical expenses incurred prior to the October 1999 injury. However, the single judge determined that since Dawes returned to work without restrictions in 1996, all of Dawes' disability following the 1999 injury was attributable to the 1999 injury.


The review panel affirmed the single judge's finding that the 1999 injury was work related and that Dawes' temporary total disability began on October 25, 1999. However, the review panel ordered that the case be remanded for "further consideration" by the single judge of the date on which Dawes' period of temporary total disability ended. The review panel did not conclude, however, that the single judge was clearly wrong on the evidence or that the decision was contrary to law. Dawes had argued to the review panel that the June 20, 2000, letter was not prepared by Dr. Watt and that Dawes was unable to return to his prior employment within the restrictions imposed by the letter. The review panel directed the single judge to "consider" Dawes' argument on remand.

The review panel also remanded the case for reconsideration of Dawes' loss of earning capacity. The single judge had determined that the opinion of the court-appointed vocational rehabilitation counselor had not been rebutted by the expert tendered by the defense. The review panel stated that the single judge had erred by continuing to accord the court-appointed counselor's opinion the statutory rebuttable presumption of correctness after contrary evidence had been submitted, as such presumption "`disappears'" on the introduction of contrary evidence.

The review panel also remanded the case for specific determinations on certain medical expenses to which the single judge's award did not speak. The review panel directed the single judge to consider, on remand, the amount of reimbursement to which Dawes' health insurance carrier might be entitled. The review panel also concluded, despite the lack of an express finding in this regard by the single judge, that there was a reasonable controversy which precluded an award of waiting-time penalties and attorney fees.


Dawes assigns, restated, that the review panel erred in (1) finding no evidence that Dawes' condition was the result of an occupational disease, (2) concluding that Dawes' claim for benefits regarding his 1996 injury was barred by § 48-137, (3) remanding the issue of Dawes' loss of earning capacity to the single judge for reconsideration based on the conclusion that the rebuttable presumption of correctness "disappears" upon receipt of contrary evidence, (4) remanding the issue of Dawes' temporary total disability when the evidence shows that Dawes did not reach maximum medical improvement until August 2000, (5) failing to award reimbursement of all medical expenses for treatment of Dawes' back injury after the October 1999 accident when those expenses were uncontested, (6) directing the single judge to determine the subrogation interest of Dawes' health insurance carrier, (7) finding that there was a reasonable controversy, and (8) failing to award attorney fees on review when Wittrock did not obtain a reduction in the amount of the award.

On cross-appeal, Wittrock assigns, restated, that the review panel erred in (1) affirming the finding of the single judge that Dawes suffered a compensable accident in October 1999 and (2) remanding the issue of the period of temporary total disability to the single judge.


An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (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 did not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Schwan's Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).


Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case. Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999). This case presents a jurisdictional issue with respect to the finality of the award of the single...

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