Eichorn v. Eichorn Trucking, Inc.
| Decision Date | 30 May 1995 |
| Docket Number | No. A-94-783,A-94-783 |
| Citation | 3 Neb.App. 795,532 N.W.2d 345 |
| Parties | Jeanette M. EICHORN, Appellant and Cross-Appellee, v. EICHORN TRUCKING, INC., and Great West Casualty Company, Appellees and Cross-Appellants, and State of Nebraska, Second Injury Fund, Appellee and Cross-Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. A decision by the Workers' Compensation Court after rehearing has the same force and effect as a jury verdict, and findings of fact will not be set aside unless, after reviewing the record in the light most favorable to the successful party, an appellate court determines that those findings are clearly erroneous.
2. Workers' Compensation: Appeal and Error. Pursuant to Neb.Rev.Stat. § 48-185 (Supp.1991), 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 do not support the order or award.
3. Appeal and Error. With respect to questions of law, an appellate court is obligated to make its own determination.
4. Workers' Compensation: Second Injury Fund. Neb.Rev.Stat. § 48-128 (Reissue 1988) clearly requires, as a condition to entitlement to compensation from the Second Injury Fund, that the employee be entitled to receive compensation on the basis of the combined disabilities.
5. Workers' Compensation: Second Injury Fund. Neb.Rev.Stat. § 48-128 (Reissue 1988) does not exist to increase or to create rights to compensation benefits beyond those to which an employee is otherwise entitled. Rather, § 48-128 merely provides a means to shift and apportion benefits between the employer and the Second Injury Fund.
6. Workers' Compensation: Second Injury Fund. Second injury funds were created to encourage employers to hire the handicapped and to therefore be secure in knowing that if a work-related accident occurs, the employer and its insurance carrier are liable only for those injuries which would have resulted had there been no preexisting disability.
7. Workers' Compensation: Second Injury Fund: Proof. It is the employer's burden to prove apportionment between the portion of the injury for which the Second Injury Fund is liable and the portion for which the employer is liable.
John F. Simmons, of Simmons, Olsen, Ediger & Selzer, P.C., Scottsbluff, for appellant.
Don Stenberg, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee Second Injury Fund.
Raymond P. Atwood, Jr., of Healey & Wieland Law Firm, Lincoln, for appellees Eichorn Trucking and Great West Cas. Co.
Jeannette M. Eichorn appeals an order of a rehearing panel of the Nebraska Workers'
Compensation Court finding that she was entitled to workers' compensation benefits based upon a 5-percent permanent impairment to her right hand and dismissing the Nebraska Second Injury Fund. Eichorn does not challenge the award against her employer and its insurer. Rather, she claims entitlement to additional benefits from the fund based upon her being permanently and totally disabled. For the following reasons, we affirm the judgment of the Workers' Compensation Court rehearing panel.
Eichorn had worked as a manager, waitress, and cook for various restaurants for 15 to 20 years when, in 1978, she first experienced numbness and a tingling pain in her right hand. She sought medical attention for the problem in September 1981. Carpal tunnel surgery was performed on Eichorn's right hand in January 1982. Eichorn returned to work and subsequently began having problems with her left hand. Carpal tunnel surgery was performed on Eichorn's left hand in November 1982. Once again, Eichorn returned to work, but soon thereafter her right hand began troubling her again. A second carpal tunnel surgery was performed on her right hand in April 1983. After this surgery, Eichorn did not return to work.
In February 1984, Dr. Robert L. Horner, a hand surgeon, concluded that Eichorn had a "moderate permanent impairment of both hands" that "probably amounts to approximately 10 percent bilaterally." Eichorn's claim based on 10 percent of the scheduled compensation resulted in a lump-sum settlement which was approved in May 1985. No loss of earning power was then determined.
Eichorn assumed part-time secretarial duties for her family's business, Eichorn Trucking, Inc., in 1985 and switched to full time in 1986. The pain in her hands increased in frequency and intensity until she finally quit working in July 1990. In August 1990, a third carpal tunnel surgery was performed on her right hand.
Over the next 2 years, Eichorn was examined numerous times by several doctors. The consensus of the doctors was that she had suffered an additional 5-percent impairment to her right hand due to her secretarial work at Eichorn Trucking, resulting in a 15-percent impairment to the right hand. Although one of the doctors who examined her reported that "[f]rom purely an objective standpoint, I feel that she should be encouraged to resume all usual activities," the consensus of the doctors who found disability in the right hand was that Eichorn could not resume her secretarial duties at Eichorn Trucking. In a report dated January 13, 1992, Gary Phillips, Ph.D., a rehabilitation consultant, concluded that Eichorn suffered from a vocational disability of 92 percent, but in the Scottsbluff area, it amounted to a 100-percent disability. In a letter dated March 16, 1992, Phillips concluded, after reviewing Eichorn's earlier medical records, that as of February 20, 1984, Eichorn had suffered a 43-percent loss in earning power.
Eichorn filed a petition in the Workers' Compensation Court on August 28, 1991, seeking disability benefits from Eichorn Trucking and its insurer, Great West Casualty Company. The court granted the defendants' cross-petition to join the Second Injury Fund as a defendant.
In its judgment of December 22, 1992, affirming the findings and order of the single-judge, a three-judge rehearing panel found that Eichorn was entitled to disability benefits from Eichorn Trucking and Great West, but that the disability payments already made to her exceeded the benefits to which she was entitled and therefore eliminated a further award to her. The court further determined that Eichorn had a preexisting permanent partial disability of 10 percent to each hand, but because that preexisting disability did not result in compensation payable for a period of 90 weeks or more, the Second Injury Fund should be dismissed as a party defendant.
Eichorn then appealed to this court, asserting several assignments of error, including dismissal of the fund. In a memorandum opinion dated November 12, 1993 The liability of the Fund is not an issue in this case until there has been a finding that because of a prior injury combined with the injury sustained during her employment at Eichorn Trucking, the claimant is entitled to disability compensation in excess of that already provided by Eichorn Trucking and Great West. If such a finding is made, then the responsibility rests with Eichorn Trucking and Great West to prove that the Fund is liable for the amount of disability compensation resulting from injury sustained by the claimant prior to her employment at Eichorn Trucking....
we noted plain error and remanded the cause. We stated:
This case was put on the wrong track when the Workers' Compensation Court prematurely injected into the case the issue of the potential liability of the Fund. The court acknowledged that there was evidence in the record to support the claimant's contention that she had suffered a significant loss of earning power prior to her employment at Eichorn Trucking. Nonetheless, because the court was not convinced that the claimant's previous condition would activate the liability of the Fund under § 48-128, the court apparently refused to consider evidence of prior impairment in determining the extent of the claimant's current disability.
The potential liability of the Fund was irrelevant to the issue of the extent of the claimant's current disability. Our opinion recognized that Eichorn should only have been "arguing about the accuracy of that comprehensive determination of disability and compensation" and that it "should be left to Eichorn Trucking, Great West, and the Fund to litigate the issue of the degree to which the Fund may be liable for [Eichorn's] disability compensation."
The cause was remanded with directions for the Workers' Compensation Court to determine the extent of Eichorn's disability and the compensation to which she was entitled by considering evidence of her prior disability in combination with the disability sustained at Eichorn Trucking.
Pursuant to our mandate, the rehearing panel found that Eichorn did have a preexisting permanent partial disability as a result of the two 10-percent member impairments to her hands; that Eichorn Trucking knew of this before the last injury occurred; and that as a result of the injuries to her right hand from the Eichorn Trucking employment, Eichorn had sustained an additional 5-percent permanent partial impairment to her right hand. In specific response to the directions by this court to consider evidence of prior impairment in combination with the impairment sustained at Eichorn Trucking and to make a comprehensive determination of the extent of Eichorn's disability, the rehearing panel found that "the 5 percent impairment suffered by the plaintiff on July 26, 1990 combined with her preexisting disability to render the plaintiff totally disabled." The rehearing panel also concluded that the...
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