Guico v. Excel Corp.

• Decision Date: 17 November 2000
• Docket Number: No. S-99-1406.,S-99-1406.
• Citation: 619 N.W.2d 470,260 Neb. 712
• Parties: Manuel GUICO, Appellee, v. EXCEL CORPORATION, Appellant.
• Court: Nebraska Supreme Court

619 N.W.2d 470

260 Neb. 712

Manuel GUICO, Appellee, v. EXCEL CORPORATION, Appellant.

No. S-99-1406.

Supreme Court of Nebraska.

November 17, 2000.

Darin J. Lang, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellant.

Roger Moore, of Rehm Law Firm, Lincoln, for appellee.

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

PER CURIAM.

Excel Corporation appeals from a judgment of the Nebraska Workers' Compensation Court awarding temporary total and permanent partial disability benefits, waiting-time penalties, and attorney fees to Manuel Guico as the result of an injury occurring on December 9, 1997. The principal issue at trial and on appeal is whether Guico's injury resulted from his own willful negligence and was therefore not compensable under Neb. Rev.Stat. § 48-101 (Reissue 1998).

FACTS

Guico was employed by Excel from 1995 until his termination on December 10, 1997, the day following his injury. At the commencement of his employment, Guico attended an orientation session where he was informed of the importance of wearing protective clothing and using the proper safety equipment. Guico was specifically told that he was required to wear steel-mesh gloves and a mesh apron whenever performing tasks involving the use of a knife.

Guico was assigned to various tasks during his employment by Excel. He described his initial work assignment as "trimming the legs of ... cows," which necessitated the use of a knife. Guico testified that his supervisor on this job explained the importance of wearing the steel-mesh gloves when using a knife. Guico was subsequently reassigned to the task of "deboning the hands" which also required the use of a knife and, accordingly, the wearing of steel-mesh gloves and a mesh apron. Guico understood that he was required to use the mesh safety equipment while deboning because the work involved the use of a knife. Guico testified that when he was assigned to the tasks of trimming legs and deboning, his supervisor talked to him "[a]ll the time" about the importance of using the proper steel-mesh safety equipment so that no one would get cut.

At various times during his employment with Excel, Guico also performed a task described as "rib splitting." Excel's supervisor in charge of rib splitting was Reynaldo Marquez. Marquez testified that when rib splitting, the worker inserts a 14-inch knife into a beef carcass at the fifth rib and pulls it back toward the worker's chest. He testified that due to the high risk of injury, the rib-splitter position requires the use of more mesh safety equipment than any other job on the floor at Excel. Guico understood that safety equipment was required while rib splitting "[s]o that one would not get cut."

On the day of his injury, Guico was assigned to operate a bone saw. Because that job did not involve the use of a knife, the only required items of safety equipment were cloth gloves and goggles. Guico began his shift at 2:30 p.m. After operating the bone saw for approximately 11/2 hours, he decided to switch jobs with a coworker who had been rib splitting. At the time Guico switched jobs, he was wearing three pairs of cloth gloves on his hands. Guico knew he was required to wear mesh safety equipment to split ribs, but testified that he did not have time to put on the equipment because of the speed at which beef carcasses were coming down the continuous chain line. When Guico inserted the knife into the carcass, it slipped and lacerated his right thumb and index finger, resulting in an 11-percent permanent partial disability to his right hand. He admitted it was a mistake not to wear the steel gloves, but stated that he did not intentionally cut himself and "never imagined" that he would be injured. Guico stated that he switched jobs on the day of the injury without donning the steel-mesh safety equipment because he "never thought about" getting cut.

Guico testified at trial that he had performed the rib-splitter job on previous occasions with the knowledge and consent of Marquez and that he did not recall anyone telling him that he could not perform this task. In Guico's deposition, which was received in evidence at trial, he stated that Marquez told him 1 week before the accident that he could switch to the rib-splitter job whenever he wished. He further stated that Marquez did not mention at that time that he needed to wear the correct safety equipment if he switched jobs, although he admitted that he knew this to be a requirement. Guico stated that he switched from operating the bone saw to rib splitting "many times."

Marquez testified that employees under his supervision were allowed to switch jobs only after receiving his permission so that he could be certain that they were using the proper safety equipment. He testified that Guico did not have his permission to switch jobs on the date of the accident. Marquez testified that on the day before the injury, he discovered Guico had switched jobs and was rib splitting instead of performing his assigned task of operating the bone saw. Marquez noted that Guico was not wearing the steel-mesh safety equipment. He verbally reprimanded Guico and told him to go back to the task of operating the saw. Marquez did not write Guico up at that time, but on December 22, 1997, subsequent to Guico's termination, he prepared a handwritten statement describing this incident. When asked on cross-examination about the incident described by Marquez, Guico replied that he did not remember it.

Upon the court's inquiry, Marquez testified that accidents happen even though employees are using the proper safety equipment. He further testified, however, that a person wearing the steel-mesh gloves would not be cut by a knife, because the knife cannot cut through the mesh.

John Thiem, Excel's assistant human resources manager, testified that the work environment at Excel can be dangerous if the proper safety precautions are not followed. Thiem testified that Excel requires all employees using knives to wear steel-mesh gloves and mesh aprons. He testified that violation of a safety rule could result in a verbal warning, a written suspension, or termination, depending upon the severity of the violation. He stated that a minor violation would be wearing equipment improperly or running in the hall. Thiem testified that complete failure to use required safety equipment was a major violation which could result in termination. Thiem testified that he considered the rule requiring the wearing of steel-mesh gloves and mesh aprons when using a knife to be a reasonable rule because it was in place to protect the "life and limb" of an employee.

Thiem testified that during a meeting on the day after the accident, Guico admitted that he was not wearing the required safety equipment at the time of the injury. Thiem informed Guico at this meeting that in view of the fact that Guico had been warned regarding the same behavior on the day before the injury, Thiem had decided to terminate his employment for failure to obey safety rules. However, Thiem also told Guico that Excel would pay his workers' compensation and medical bills. Upon the court's inquiry, Thiem stated that Excel does not write up all violations, but instead gives verbal warnings at times. He stated that failure to use an apron or gloves should result in a written violation, although he was not aware of a writeup for Guico's December 8, 1997, violation.

Janet Dostal, Excel's workers' compensation coordinator, testified that when Excel employees are injured, they are placed in the light-duty program, which can accommodate almost any type of work restriction. According to Dostal, had Guico not been terminated on December 10, 1997, he would have been able to participate in the light-duty program up through the time he reached maximum medical improvement. Because of his termination, Guico was not offered light duty. Excel did, however, pay his medical bills based upon the representation made to Guico by Thiem at the time he was terminated. Upon the court's inquiry, Dostal testified that the only written disciplinary action in Guico's file unrelated to the accident was a January 31, 1997, disciplinary action for wearing jewelry while on the production floor.

FINDINGS AND DECISION OF WORKERS' COMPENSATION COURT

On April 28, 1999, the trial judge entered an order finding that Guico was entitled to benefits under the Nebraska Workers' Compensation Act. In its order, the court specifically noted that no Nebraska case addresses whether the failure to follow a safety rule is "willful negligence" as a matter of law. Applying analytical principles discussed in 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 33 (2000), the trial judge determined that Excel failed to meet its burden of proving willful negligence on the part of Guico.

The trial judge also found that the evidence did not establish that Guico was terminated for reasons other than his injury. Finally, the trial judge determined there was no reasonable controversy with respect to the compensability of Guico's claim and thus awarded him waiting-time penalties and attorney fees. The final award granted Guico $310.76 per week for 142/7 weeks of temporary total disability, an additional $310.76 per week for 19.25 weeks for an 11-percent permanent partial disability to the right hand, all medical and hospital expenses incurred as a result of the accident, a 50-percent penalty on all outstanding compensation due and owing, and an attorney fee of $2,000.

Excel appealed the decision to a three-judge review panel of the Workers' Compensation Court. The panel issued an order of affirmance on November 3, 1999, in which it found that the trial judge's findings of fact were not clearly wrong, that there was no error of law, and that a detailed opinion would have no precedential value. The review panel also assessed a $2,000 attorney fee against Excel based...