Fenster v. Clark Bros. Sanitation, 89-865

• Decision Date: 11 May 1990
• Docket Number: No. 89-865,89-865
• Citation: 235 Neb. 336,455 N.W.2d 169
• Parties: Curtis A. FENSTER, Appellant and Cross-Appellee, v. CLARK BROTHERS SANITATION, et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 169

455 N.W.2d 169

235 Neb. 336

Curtis A. FENSTER, Appellant and Cross-Appellee, v. CLARK BROTHERS SANITATION, et al., Appellees and Cross-Appellants.

No. 89-865.

Supreme Court of Nebraska.

May 11, 1990.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. The findings of fact made by the compensation court after rehearing shall have the same effect as a jury verdict in a civil case and will not be set aside unless clearly wrong.

2. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party.

3. Workers' Compensation. The statutory scheme found in Neb.Rev.Stat. § 48-121 (Reissue 1988) compensates impairments of the body as a whole in terms of employability and loss of earning capacity, but compensates impairments of the scheduled members on the basis of loss of physical function.

4. Workers' Compensation. An employee suffering a schedule injury is entitled only to the compensation provided for in Neb.Rev.Stat. § 48-121(3) (Reissue 1988), unless some unusual or extraordinary condition as to the other members or parts of the body develops as a result of the injury.

5. Workers' Compensation. When an employee suffers a schedule injury, the presence or absence of industrial disability (loss of earning capacity) is immaterial.

6. Workers' Compensation. Whether an injury results in an unusual or extraordinary condition affecting other parts of the body ordinarily presents a question of fact.

7. Workers' Compensation. The test for determining whether a disability is to a scheduled member or the body as a whole is not the situs of the injury, but, rather, the location of the residual impairment.

8. Workers' Compensation: Proof. In order to be entitled to compensation benefits, an employee must show by competent medical testimony a causal connection between the alleged injury, the employment, and the disability.

9. Workers' Compensation. An injured worker is not entitled to an award based on loss of earning power when the injury confined to a scheduled member renders the worker unable to engage in work for which he or she has prior training and experience.

10. Workers' Compensation: Limitations of Actions. Generally, a payment for compensation benefits made by an employer's insurance carrier for an accident which predated its coverage tolls the statute of limitations and binds the employer.

John A. Wagoner, Grand Island, for appellant and cross-appellee.

Cathleen H. Snell, of Luebs, Dowding, Beltzer, Leininger, Smith & Busick, Grand Island, for appellees and cross-appellants.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

The plaintiff appeals from an award of the Workers' Compensation Court finding that he suffered a compensable schedule injury, i.e., a 20-percent permanent partial disability to his right arm, see Neb.Rev.Stat. § 48-121(3) (Reissue 1988), rather than an injury to his body as a whole, see § 48-121(2), which would entitle him to an award based on his loss of earning power. The defendants, Clark Brothers Sanitation and Alliance Insurance Company, cross-appeal the compensation court's finding that the statute of limitations did not bar plaintiff's claim. We reverse and remand for further proceedings, noting plain error, but affirm as to the cross-appeal.

The findings of fact made by the compensation court after rehearing shall have the same effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. Brazee v. City of Lincoln, 234 Neb. 680, 452 N.W.2d 529 (1990); Neb.Rev.Stat. § 48-185 (Reissue 1988).

On September 30, 1981, plaintiff was employed by Clark Brothers Sanitation as a garbage hauler and suffered a rotator cuff tear to his right shoulder while lifting a full 60-gallon trash barrel.

Plaintiff incurred medical and hospital expenses and was temporarily totally disabled from September 30, 1981, to and including February 15, 1982; from June 8, 1982, to and including August 5, 1982; from January 4, 1983, to and including March 30, 1983; and from August 27, 1986, to and including March 9, 1987.

At the time of this accident, Clark Brothers' insurer was Alliance. Alliance paid plaintiff's medical and hospital bills and disability compensation up to September 14, 1984. In the fall of 1984, Aetna Life & Casualty Company became Clark Brothers' insurer. Thereafter, plaintiff began filing all of his claims, even those relating to his right shoulder injury of September 30, 1981, with Aetna.

Plaintiff underwent surgery for carpal tunnel syndrome in his right wrist on December 4, 1984, and for lateral epicondylitis in his left elbow on November 14, 1985. All medical and hospital expenses as well as compensation benefits for temporary total disability were paid by Aetna.

In 1986, plaintiff returned to Dr. John Albers because he was experiencing recurring problems with his right shoulder. Dr. Albers is the orthopedic surgeon who had performed surgery and cared for plaintiff for the rotator cuff tear, the carpal tunnel syndrome, and the lateral epicondylitis. On October 16, 1986, a staple which had been put in plaintiff's right shoulder in 1983 was surgically removed. Aetna paid medical and hospital expenses for the procedure as well as compensation for temporary total disability from August 28, 1986, to November 12, 1986. On February 12, 1987, on the advice of Dr. Albers, plaintiff visited the Mayo Clinic in Rochester, Minnesota, for an orthopedic examination of his right shoulder. Aetna paid medical and hospital expenses relating to the visit as well as compensation for temporary total disability from February 12 to March 9, 1987.

Plaintiff visited the Mayo Clinic for another examination of his right shoulder on March 31, 1988. None of his expenses relating to this visit have been reimbursed.

On October 16, 1987, plaintiff filed a petition in the Workers' Compensation Court alleging that on or about November 13, 1984, in loading refuse on the truck he was operating, he injured his right shoulder and right arm, which resulted in a permanent and total impairment in the use of his right upper extremity, including the shoulder. Named as defendants were Clark Brothers and Aetna. The compensation court, after a hearing, found that the evidence disclosed the occurrence of only one accident and injury arising out of and in the course of plaintiff's employment with Clark Brothers, which occurred in the latter part of September 1981. According to the court, there was no medical evidence of a causal connection between plaintiff's claimed disability and any accident and injury subsequent to September 1981.

Plaintiff filed another petition in the compensation court on June 7, 1988, alleging an injury to his right shoulder and arm arising in the course of his employment as the result of an accident occurring on or about October 1, 1981. Named as defendants were Clark Brothers and Alliance. In their answer, the defendants alleged that the last compensation benefit or medical expense paid to plaintiff was accomplished on September 14, 1984, and, therefore, more than 2 years having expired from the date of the last payment of compensation on the claim, plaintiff's claim was barred by Neb.Rev.Stat. § 48-137 (Reissue 1988).

An award on rehearing was entered July 27, 1989, following a consolidated hearing on the claim involving Aetna and the claim involving Alliance. The court found that all compensation benefits for the carpal tunnel syndrome and lateral epicondylitis had been paid and that those conditions had no causal connection with the injury of October 1, 1981.

The court further found that as a result of the injury of October 1, 1981, in lifting the 60-gallon trash barrel, plaintiff was temporarily totally disabled for those periods of time previously detailed, totaling 60 5/7 weeks, beginning October 30, 1981, and ending on March 9, 1987, and was suffering from a 20-percent permanent partial disability of his right arm. This contrasts with an original award entered by one judge of the compensation court which found plaintiff to have suffered a 50-percent temporary loss of earning power through July 20, 1988, and to be suffering from the same continuing temporary loss of earning power for an additional indefinite period of time.

The compensation court then addressed the defense of the statute of limitations. The court set forth the various details of treatment and payments previously mentioned. It found that Aetna had paid the various hospital and medical expenses associated with the removal of the staple from plaintiff's shoulder in October 1986 and that those payments were made within 2 years of the filing of the consolidated actions then pending in the compensation court. The court went on to find that although those payments were mistakenly made in that they were made for treatment of an injury that predated the period of its coverage, nevertheless, Aetna having been one of Clark Brothers' workers' compensation carriers, the payments were in effect made by the employer and operated to toll the running of the statute of limitations.

The court went on to order payment by Alliance of certain hospital and medical expenses, to award credit to Alliance for certain disability compensation payments previously made, and further to find plaintiff to be suffering from a 20-percent permanent partial disability of the right arm for which compensation benefits were awarded. Finally, the compensation court found that because the defendants had secured a reduction in the amount of the award initially entered, there would be no award of attorney fees.

Plaintiff was examined by Dr. John Yost, an orthopedic surgeon, on September 27 1988. In his report of the examination, Dr. Yost stated that he...