Fay v. Dowding, Dowding & Dowding

• Citation: 623 N.W.2d 287,261 Neb. 216
• Decision Date: 09 February 2001
• Docket Number: No. S-00-123.,S-00-123.
• Parties: Rosalie FAY, Appellant and Cross-Appellee, v. DOWDING, DOWDING & DOWDING and United Fire & Casualty Company, its workers' compensation insurance carrier, Appellees and Cross-Appellants.
• Court: Supreme Court of Nebraska

623 N.W.2d 287

261 Neb. 216

Rosalie FAY, Appellant and Cross-Appellee, v. DOWDING, DOWDING & DOWDING and United Fire & Casualty Company, its workers' compensation insurance carrier, Appellees and Cross-Appellants.

No. S-00-123.

Supreme Court of Nebraska.

February 9, 2001.

Raymond P. Atwood, Jr., and Ryan C. Holsten, of Atwood & Associates Law Firm, P.C., L.L.O., for appellant.

Darin L. Lang and Walter E. Zink II, of Baylor, Evnen, Curtiss, Grimit & Witt, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Rosalie Fay appeals from a nunc pro tunc order of reversal on review entered by a three-judge review panel of the Nebraska Workers' Compensation Court. In the nunc pro tunc order, the review panel (1) withdrew an order of affirmance on review which had been entered earlier by the same review panel and which had affirmed an award to Fay and (2) in lieu of the order of affirmance, reversed the decision of a single Workers' Compensation Court judge awarding benefits to Fay. Dowding, Dowding & Dowding (Dowding), a law firm and Fay's employer, and United Fire & Casualty Company (United), Dowding's workers' compensation insurance carrier, cross-appeal from the order of affirmance. For the reasons stated below, we vacate the nunc pro tunc order and consider and affirm the order of affirmance. Because we affirm the order of affirmance, we reject Dowding and United's cross-appeal. Fay is awarded $3,000 in attorney fees in connection with this appeal.

STATEMENT OF FACTS

In this workers' compensation action, Fay alleges that she sustained a cumulative trauma injury to her neck and upper left shoulder, which injury arose out of and in the course of her employment with Dowding. Fay alleges that her injury was caused by the repeated turning of her head from side to side and tilting her head up and down in the performance of her work-related duties. On December 2, 1997, Fay filed a petition with the Nebraska Workers' Compensation Court seeking workers' compensation benefits as a result of her alleged injury. On December 23, Dowding and United filed an answer, generally denying that Fay had sustained a work-related injury. On January 26, 1999, Fay's petition came on for trial before a single judge of the Nebraska Workers' Compensation Court.

The evidence offered at trial established the following: Fay has worked as a law office secretary, office manager, or bookkeeper, at least on a part-time basis, since 1977. In 1990, she began working for Dowding in Grand Island, Nebraska, where she was employed at the time of the hearing before the single judge. Since 1990, Fay has performed essentially the same duties for Dowding. Fay's daily tasks may include organizing the mail, posting checks, taking dictation, making telephone calls, writing the office checks, meeting with sales representatives, handling the office accounts, organizing files, supervising staff, assisting with any minor computer problems that may develop, and performing bookkeeping duties for certain Dowding corporate clients. Approximately 85 to 90 percent of her workday is spent at her desk.

Beginning in December 1995, Fay began to notice numbness and tingling in her left hand and arm, together with pain in her left shoulder. Later, the pain spread to her neck. In her deposition testimony, Fay stated that there were occasions when the pain was so severe that she could not get out of bed in the morning to report to work. As a result of her pain, Fay missed several half-days from work in December 1995 and January 1996.

Fay also testified that she voluntarily took 4 days off from work, from March 19 to 22, 1996, to see if her symptoms improved when she was not at the office. She testified that it was taking this time off that led her to conclude that her injury was work-related because during those 4 days, her symptoms abated.

Fay initially sought medical treatment for her injury on January 4, 1996, with her family physician, Dr. D.R. Cronk. Dr. Cronk diagnosed Fay as having multiple bone spur formations at the C3-7 levels, together with a narrowing of the disks. In letters which are in evidence, Dr. Cronk opined that Fay's work "aggravates" her symptoms and that the repetitive nature of Fay's work, in which she turns her head from side to side and tilts her head up and down, "can result in the type of pain and symptoms that have resulted in her present condition." Dr. Douglas Long, whom Fay apparently saw for a second opinion, stated in a report dated August 2, 1996, that Fay's symptoms of neck and left shoulder pain "appear to be aggravated by work."

Dr. D.M. Gammel examined Fay on May 15, 1998, for the purpose of assigning Fay an impairment rating and in a report dated that same day, stated, "It is my opinion that Ms. Fay's work duties have aggravated her degenerative condition and caused the cumulative trauma injury to musculature of her cervical spine with radiation to the left shoulder area." On the basis of this diagnosis, Dr. Gammel assigned Fay a whole-body impairment rating of 5 percent.

Also received into evidence by the single judge were reports by two vocational rehabilitation counselors. In a report dated August 20, 1998, Robert Anderson, the court-appointed vocational rehabilitation counselor, opined that as a result of her injury, Fay had a 0-percent loss of earning capacity, because there were no jobs for which Fay had training, experience, and the physical capability to perform prior to her injury that she could not perform after her injury. In a rebuttal report dated October 16, 1998, vocational rehabilitation counselor Paulette Freeman wrote that Fay had sustained an 8- to 12-percent loss of earning capacity, primarily because of Fay's loss of access to other jobs in the labor market.

On August 2, 1999, the single judge entered an award in which the judge determined that on or about January 4, 1996, Fay suffered an injury to her cervical spine as a result of an accident arising out of and in the course of her employment with Dowding. The award stated that Fay's repetitive turning of her neck from side to side, tilting of her head up and down, and bending and flexing her upper back, neck, and shoulders, all during her performance of work-related activities, had caused her injury. The award stated that causation for Fay's injury was found in Dr. Cronk's medical reports. The single judge found that Fay had reached maximum medical improvement on June 25, 1996, the last day she was treated by Dr. Cronk for her neck injury. The single judge declined to award Fay any temporary total disability payments, finding that there was no evidence that the 4 days Fay missed work in March 1996 had been prescribed by any physician. Nevertheless, the single judge awarded Fay $34.85 per week for 300 weeks in permanent partial disability payments, representing a 10-percent loss of earning capacity.

On August 13, 1999, Dowding and United filed an application for review, seeking review of the single judge's award by a three-judge panel of the Nebraska Workers' Compensation Court. Their appeal came on for hearing on December 14.

The review panel affirmed the single judge's award in the order of affirmance dated and filed on December 23, 1999. However, 6 days later, on December 29, the same review panel entered an order styled "nunc pro tunc" withdrawing the order of affirmance and, instead, reversing the award.

In this nunc pro tunc or second order, the review panel explained its rationale for the issuance of the nunc pro tunc order and stated:

[Following the December 14, 1999, hearing the] review panel discussed [Dowding and United's] appeal among its members and an order of affirmance on review was prepared and signed by all the members of the review panel. The file, to include the order of affirmance on review, was transported by courier from Omaha, Nebraska, to the Workers' Compensation Court at the State Capitol Building in Lincoln on December 21, 1999. On that same date, the Court received the opinion of Jordan v. Morrill County, 258 Neb. 380 , a decision of the Nebraska Supreme Court rendered on December 17, 1999. After discussion among the review panel members, there was unanimous agreement that the Jordan case required that the order of affirmance on review be withdrawn and an order of reversal substituted in its place. And this is where the clerical error arose. In communicating to the office in Lincoln that this file should be held so that the new opinion could be substituted, there was reference to the Dowding file. On December 14, 1999, there was also argued a case in which the employee's name was Phyllis Dowding. Inadvertently, the order of affirmance on this cause was sent out and the opinion was held in the Phyllis Dowding file. We believe that this is the kind of clerical error that is correctable by a nunc pro tunc order.

In its nunc pro tunc order, the review panel withdrew the order of affirmance and substituted a three-paragraph opinion in which it concluded, on the basis of this court's decision in Jordan v. Morrill County, 258 Neb. 380, 603 N.W.2d 411 (1999), that the single judge's award should be reversed. In Jordan, this court held that in order for an injured worker claiming a cumulative or repetitive trauma injury as a result of an accident to be entitled, as a matter of law, to receive benefits under Nebraska's workers' compensation statutes, "[t]he injury must require the employee to discontinue employment and seek medical treatment.... The injury must result in a disability, and the disability must be such that the employee can no longer perform the work required." Id. at 389, 603 N.W.2d at 419.

The review panel determined in its second order that it was

unable to say [the single judge] was clearly wrong in finding that [Fay] suffered no temporary total disability [because the single judge found] that the plaintiff was still physically able to

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