Foreman v. State
| Decision Date | 15 May 1992 |
| Docket Number | No. S-91-608,S-91-608 |
| Citation | 240 Neb. 716,483 N.W.2d 752 |
| Parties | Daniel FOREMAN, Appellant, v. STATE of Nebraska, University of Nebraska-Lincoln, and the Nebraska Second Injury Fund, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation. Findings of fact made by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case.
2. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party.
3. Workers' Compensation: Appeal and Error. Factual determinations by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous.
4. Workers' Compensation. A claimant who has achieved maximum medical healing is no longer entitled to compensation for temporary total disability.
5. Workers' Compensation. Generally, whether a worker has reached maximum medical improvement is a question of fact.
6. Workers' Compensation: Second Injury Fund. For a condition to constitute a preexisting permanent partial disability for which compensation can be recovered from the Second Injury Fund, the worker must have sustained at least a 25-percent loss of earning capacity.
Rod Rehm, P.C., Lincoln, for appellant.
Don Stenberg, Atty. Gen., and Lisa D. Martin-Price, Lincoln, for appellee State.
Jill Gradwohl Schroeder, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee Second Injury Fund.
The plaintiff, Daniel Foreman, sustained a low back injury on December 16, 1985, while he was employed as a sheet metal worker for the defendant University of Nebraska-Lincoln. The injury occurred when the plaintiff was lifting some large fittings for an exhaust system.
The record shows that on January 29, 1986, Dr. Louis Gogela performed a laminectomy at the L4 level of the plaintiff's spine. On August 1, 1986, Dr. Gogela released the plaintiff to return to full-time employment without restriction.
On August 16, 1986, during the course of his employment by the university, the plaintiff bent over to replace a screen in a window, and as he twisted, he felt something pop in his back. The plaintiff returned to Dr. Gogela for treatment of this injury.
On March 23, 1987, Dr. Gogela performed additional surgery to remove disk material at the L4 level of the plaintiff's spine. Dr. Gogela released the plaintiff to work in the summer of 1987, restricting him to light duties initially and eventually allowing the plaintiff to return to full-time duties without restrictions.
In a report dated July 21, 1987, Dr. Gogela stated that the plaintiff had sustained a 10-percent permanent partial impairment of the body as a whole. Thereafter, the university made a voluntary award of permanent partial disability at a rate of 10 percent and paid the plaintiff $30.58 per week.
On October 24, 1988, the plaintiff again injured his lower back while working for the university. Following this injury, the plaintiff sought medical treatment from Dr. Ronald Schwab.
On March 1, 1989, Dr. Schwab performed a "lumbar spinal decompression with posterolateral spinal fusion L4 to sacrum, Steffe plate internal fixation L4 -5 level."
After the accident of October 24, 1988, the plaintiff did not return to employment at the university. He received temporary total disability payments from November 1, 1988, to November 15, 1990, and he continued to receive permanent partial disability payments of $30.58 a week through January 26, 1989.
On October 30, 1989, Dr. Schwab completed a functional capacity form on which he indicated that the plaintiff could participate in certain restricted work activities. On November 14, 1989, Dr. Schwab wrote to Jim Weiss, a vocational rehabilitation counselor employed by the university, which stated that he believed the plaintiff could return to his former work activities if he did not lift in excess of 50 pounds. Additionally, Dr. Schwab completed an estimated functional capacity form which set forth the plaintiff's work restrictions. On December 29, 1989, Dr. Schwab estimated that the plaintiff could return to work on approximately March 1, 1990.
In a report dated March 15, 1990, Dr. Frederick Hathaway stated that the plaintiff's spinal fusion was solid and that the plaintiff could work with certain restrictions. In a supplemental report dated October 18, 1990, Dr. Hathaway expressed the opinion that the plaintiff had reached maximum medical improvement and he could have returned to work as of April 1, 1990. According to Dr. Hathaway, the plaintiff had sustained a 40-percent permanent partial impairment of the body as a whole.
This action was commenced on February 20, 1990. The petition alleged injuries occurring on December 16, 1985, August 18, 1986, and October 24, 1988. At the first hearing in this matter, the plaintiff testified that although he had not returned to work at the university, he was working approximately 30 hours a week in various farming activities on his farm.
On October 15, 1990, Dr. Schwab reported that he estimated that the plaintiff had sustained a 30-percent disability to the body as a whole and stated that the plaintiff could return to work subject to certain restrictions.
Various vocational rehabilitation professionals interviewed the plaintiff, reviewed his medical and occupational history, and presented opinions concerning the plaintiff's loss of earning capacity.
On rehearing, the compensation court found that the statute of limitations barred the plaintiff from recovering additional compensation for the accident of December 16, 1985, and that the plaintiff was not entitled to further benefits from the accident and injury of August 16, 1986, due to the plaintiff's failure to establish by expert medical evidence that the accident caused the need for surgery in March 1987 or resulted in any permanent impairment. The compensation court concluded that the accident and injury of October 24, 1988, were compensable and that as a result thereof, the plaintiff was temporarily totally disabled from October 25, 1988, through March 31, 1990, and that he thereafter sustained a 30-percent permanent loss of earning capacity. The plaintiff was awarded compensation for 74 5/7 weeks for temporary total disability at the rate of $245 per week, compensation for 225 2/7 weeks of permanent partial disability for a 30-percent loss of earning power at $95.41 per week, mileage reimbursement for medical care, reimbursement for direct payment of medications, and vocational rehabilitation benefits if applied for in a timely fashion. The Second Injury Fund was found to have no liability and was dismissed as a party.
The plaintiff has appealed from the award on rehearing.
The plaintiff assigns as error the compensation court's findings (1) that he was no longer entitled to temporary total disability benefits from the accident and injury of October 24, 1988, (2) that the plaintiff was no longer entitled to 10 percent permanent partial disability benefits for the accident and injury of August 16, 1986, (3) that the plaintiff failed to establish causation entitling him to benefits for the accident and injury of August 16, 1986, (4) that the plaintiff sustained a 30-percent loss of earning capacity as a result of the accident and injury of October 24, 1988, and (5) that the Second Injury Fund was not liable for any portion of benefits due the defendant.
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