Hofferber v. Utilities

• Decision Date: 09 September 2011
• Docket Number: No. S–10–894.,S–10–894.
• Citation: 282 Neb. 215,803 N.W.2d 1
• Parties: Chad A. HOFFERBER, appellee and cross-appellant,v.HASTINGS UTILITIES and EMC Insurance, appellants and cross-appellees.
• Court: Nebraska Supreme Court

282 Neb. 215

803 N.W.2d 1

Chad A. HOFFERBER, appellee and cross-appellant,

v.HASTINGS UTILITIES and EMC Insurance, appellants and cross-appellees.

No. S–10–894.

Supreme Court of Nebraska.

Sept. 9, 2011.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

3. Jurisdiction: Venue: Words and Phrases. Jurisdiction and venue are not synonymous and interchangeable functions in litigation.

4. Jurisdiction: Words and Phrases. Jurisdiction is the inherent power or authority to decide a case.

5. Venue: Words and Phrases. Venue is the place of trial of an action—the site where the power to adjudicate is to be exercised.

6. Venue. Venue is ordinarily not jurisdictional.

7. Venue: Waiver. Unlike jurisdiction, venue is a personal privilege which, if not raised by a party, is waived unless prohibited by law.

8. Jurisdiction. Litigants cannot confer jurisdiction on a judicial tribunal by acquiescence or consent.

9. Workers' Compensation: Jurisdiction: Venue. Neb.Rev.Stat. § 48–177 (Reissue 2010) is not jurisdictional; it simply specifies the venue for hearing the cause.

10. Workers' Compensation: Jurisdiction: Statutes. The Workers' Compensation Court, as a statutorily created court, has only such authority as has been conferred upon it by statute, and its power cannot extend beyond that expressed in the statute.

11. Workers' Compensation: Intent. Neb.Rev.Stat. § 48–162.01(7) (Reissue 2010) is intended to prevent an employee's refusal to improve his or her medical condition or earning capacity from causing an employer to pay more workers' compensation benefits than it should.

12. Workers' Compensation: Proof. Neb.Rev.Stat. § 48–162.01(7) (Reissue 2010) only authorizes the complete termination of a claimant's right to benefits under the Nebraska Workers' Compensation Act if evidence is presented to support a finding that had the employee availed himself or herself of the benefits offered, the employee would no longer be disabled.

13. Workers' Compensation. Neb.Rev.Stat. § 48–162.01(7) (Reissue 2010) cannot be used solely to punish or coerce an injured worker. There must be evidence to support a finding that the worker's disability would have been reduced had the worker cooperated with medical treatment or vocational rehabilitation.

14. Trial: Judges: Presumptions. It is presumed in a bench trial that the judge was familiar with and applied the proper rules of law unless it clearly appears otherwise.

15. Workers' Compensation. Neb.Rev.Stat. § 48–162.01(7) (Reissue 2010) is intended to permit the compensation court to modify rehabilitation plans in response to changed circumstances following the entry of the initial plan. It does not apply to situations in which a worker has refused to cooperate with treatment or rehabilitation.

Dallas D. Jones, Amanda A. Dutton, and Andrea A. Ordonez, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellants.Dirk V. Block and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., Omaha, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.GERRARD, J.

Hastings Utilities and its workers' compensation insurance carrier, EMC Insurance (collectively EMC), appeal from a decision of the Workers' Compensation Court refusing to dismiss Chad A. Hofferber's petition for benefits under the Nebraska Workers' Compensation Act (the Act).¹ The primary issues presented in this appeal relate to the scope of the Workers' Compensation Court's authority to modify, suspend, or terminate a claimant's right to benefits as punishment for the claimant's uncooperative or contemptuous conduct.

I. BACKGROUND

On October 3, 2000, Hofferber was injured in an accident in Adams County, Nebraska, arising out of and in the course of his employment with Hastings Utilities. On March 7, 2002, Hofferber filed a petition in the Workers' Compensation Court alleging that he had stepped on a manhole cover and sustained injuries to “his left foot and left side and urological injuries; abdominal injuries and severe and profound emotional injuries.” ² On April 17, 2003, the parties filed a stipulation and joint motion to dismiss, in which they agreed that Hofferber had sustained compensable injuries and was entitled to temporary total disability benefits and reasonable and necessary medical expenses. The court dismissed the cause without prejudice.

Hofferber had been evaluated at the Mayo Clinic in Minnesota after his accident, where it had been recommended that he see a particular surgical specialist in Boston, Massachusetts. The surgeon concluded, after examining Hofferber, that he was a candidate for revascularization surgery. Hofferber had the surgery in December 2003, and it was successful, but Hofferber still suffered from chronic pain, which the surgeon diagnosed as neuropathic. The surgeon treated the condition with steroids and recommended that Hofferber follow up with a pain management program closer to home.

Hofferber asked that he be sent back to the Mayo Clinic for pain management. A program at the University of Nebraska Medical Center had also been considered, but Hofferber reported having had a bad experience there shortly after his accident. After some missed appointments due to illness, Hofferber was reevaluated at the Mayo Clinic on March 14, 2005. After several different treatment options were discussed, including a pelvic CT scan, Hofferber's physician at the Mayo Clinic ultimately recommended another steroid injection and approved Hofferber to begin a 3–week Mayo Clinic pain rehabilitation program.

But Hofferber failed to schedule the injection, expressing concern about getting an injection from the Mayo Clinic instead of his surgeon. Hofferber's surgeon had apparently suggested that another physician might not be comfortable performing an injection in close proximity to the site of the revascularization surgery. When an appointment at the Mayo Clinic was scheduled for Hofferber in October 2005, he notified his medical case manager that he could not keep the appointment because of an infection. Hofferber also expressed his concern about the injection and asked what had happened to the recommendation of a CT scan.

At this point, concerned about Hofferber's periodic difficulty in keeping appointments at the Mayo Clinic and with his surgeon, EMC requested a signed medical release form to obtain medical records substantiating Hofferber's reasons for not keeping his Mayo Clinic appointment. EMC stopped Hofferber's weekly benefit payments until the signed release was provided. The evidence also suggests that Hofferber had stopped his psychiatric treatment in 2003, although it is not clear whether EMC might have stopped funding it.

In addition to the recommended Mayo Clinic treatment, Hofferber's surgeon wanted to see Hofferber for an annual followup appointment, which EMC authorized. Hofferber did not pursue either opportunity, although EMC encouraged him to do so despite Hofferber's continuing refusal to provide EMC with a release.

On December 20, 2006, Hofferber filed a pro se petition in the Workers' Compensation Court, alleging that he was owed past-due benefits and penalties, unpaid medical and legal expenses, vocational rehabilitation, and future medical treatment. EMC propounded interrogatories and requests for production, seeking, as relevant, information about Hofferber's medical treatment and any outstanding medical bills. But in a telephone conversation on February 7, 2007, Hofferber told EMC's counsel that he would not answer those discovery requests. According to EMC's counsel, Hofferber also said he would not submit to a deposition. Hofferber did not reply to EMC's discovery requests and called EMC's counsel and left a profane voicemail message.

During the same time period, Hofferber's medical case manager repeatedly contacted Hofferber on EMC's behalf, offering to assist Hofferber in arranging resumption of medical treatment. In response, Hofferber left profane voicemail messages for his case manager.

On March 20, 2007, EMC filed a motion to compel Hofferber to respond to its interrogatories and requests for production, appear for a scheduled deposition, and avail himself of the medical treatment furnished by EMC. A hearing was held before a trial court of the Workers' Compensation Court, at which Hofferber appeared and complained about EMC's refusal to pay his benefits. Hofferber also suggested that EMC had refused to pay medical bills. It appears from the statements of counsel that there may have been disagreement about whether some medical expenses, such as those relating to illnesses and infections, were causally related to Hofferber's compensable injury, although it is unclear because the disputed bills are not in the record.

EMC's counsel explained that EMC was willing to pay for any expenses that were the result of the accident, but that part of the reason for its discovery requests was to obtain information about those expenses. And Hofferber was told that if he resumed his recommended medical treatment, his disability benefits would be resumed.

The trial court directed Hofferber from the bench to comply with EMC's discovery requests. The court also entered an April 2, 2007, written order directing Hofferber to avail himself of the medical treatment being offered. On April 26,...