Hagelstein v. Swift-Eckrich Div. of ConAgra, No. S-00-625.

• Court: Supreme Court of Nebraska
• Writing for the Court: WRIGHT, J.
• Citation: 622 N.W.2d 663,261 Neb. 305
• Parties: Dale E. HAGELSTEIN, Appellant, v. SWIFT-ECKRICH DIVISION OF CONAGRA, Appellee.
• Docket Number: No. S-00-625.
• Decision Date: 23 February 2001

622 N.W.2d 663
261 Neb. 305

Dale E. HAGELSTEIN, Appellant,
v.
SWIFT-ECKRICH DIVISION OF CONAGRA, Appellee

No. S-00-625.

Supreme Court of Nebraska.

February 23, 2001.

622 N.W.2d 666

James F. Fenlon, P.C., Omaha, for appellant

Theodore J. Stouffer, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

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

WRIGHT, J.

NATURE OF CASE

Dale E. Hagelstein appeals from an order entered by a review panel of the Workers' Compensation Court. The review panel's order affirmed in part and reversed in part the trial judge's order, which modified a running award of total disability benefits to permanent partial disability benefits. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals.

SCOPE OF REVIEW

Pursuant to Neb.Rev.Stat. § 48-185 (Cum.Supp.2000), 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. Hollandsworth v. Nebraska Partners, 260 Neb. 756, 619 N.W.2d 579 (2000).

Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).

FACTS

Hagelstein filed a petition in the Workers' Compensation Court against his employer, Swift-Eckrich Division of ConAgra (Swift-Eckrich), for a lower back injury sustained while working as a maintenance mechanic on January 28, 1991. After a hearing on December 17, the trial judge found that Hagelstein was totally disabled and was entitled to benefits in the amount of $255 per week for an indefinite period.

In a second petition filed March 6, 1996, Hagelstein alleged that Swift-Eckrich had ceased paying total disability benefits and had begun paying permanent partial disability benefits on June 19, 1995. Swift-Eckrich answered on March 26, 1996. After a hearing, the trial judge modified the award, finding that Hagelstein had reached maximum medical improvement on April 24, 1995, and was thereafter partially disabled. The trial judge further found that Hagelstein had suffered a 35-percent permanent loss of earning power

622 N.W.2d 667

but did not need vocational rehabilitation training. The trial judge ordered Swift-Eckrich to pay reduced benefits effective April 24, 1995

A review panel affirmed the trial judge's modification of the award. However, the order was signed by only two of the three judges who heard arguments, as the third judge had died in the interim. We dismissed Hagelstein's subsequent appeal after determining that the order was void due to the absence of the statutorily required quorum. See Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999). On remand, the review panel affirmed in part and reversed in part. It reversed the portion of the order requiring payment of permanent partial disability benefits beginning on April 24, 1995, and ordered that payment commence on March 6, 1996, the day on which Hagelstein's second petition was filed, relying upon Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998) (holding that modification of workers' compensation award cannot be applied retroactively beyond date of application). Hagelstein timely appealed.

ASSIGNMENTS OF ERROR

Hagelstein assigns as error that the trial judge erred in finding (1) that he reached maximum medical improvement on April 24, 1995; (2) that he ceased being totally disabled on or about April 24, 1995; (3) that he suffered a 35-percent permanent loss of earning power after April 24, 1995; and (4) that he is not entitled to vocational rehabilitation benefits. Hagelstein also assigns as error that the review panel erred in failing to award him attorney fees.

ANALYSIS

To obtain a modification, an applicant must prove, by a preponderance of evidence, that the increase or decrease in incapacity was due solely to the injury resulting from the original accident. Id. The applicant must prove there exists a material and substantial change for the better or worse in the condition—a change in circumstances that justifies a modification, distinct and different from the condition for which the adjudication had previously been made. Id.

Here, we treat Swift-Eckrich as the applicant for a modification, with the date of the "application" being the date its answer was filed. Swift-Eckrich unilaterally stopped payment of Hagelstein's total disability benefits without filing an application with the compensation court. Hagelstein then petitioned the compensation court for a determination of total disability, and Swift-Eckrich's answer set out its claim requesting modification of the award of temporary total disability. We have previously stated that the employer's unilateral cessation of benefits is not to be the basis for the modification of an award of...