Koterzina v. Copple Chevrolet, Inc.
| Decision Date | 06 July 1993 |
| Docket Number | No. A-92-821,A-92-821 |
| Parties | Frank KOTERZINA, Appellee, v. COPPLE CHEVROLET, INC., a Nebraska Corporation, Defendant and Third-Party Plaintiff, Appellant, and State of Nebraska, Nebraska Second Injury Fund, Third-Party Defendant, Appellee. |
| Court | Nebraska Court of Appeals |
Thomas J. Culhane and Ruth W. Beyerhelm, of Erickson & Sederstrom, P.C., Omaha, for appellant.
Michael G. Goodman, of Cannon, Goodman, O'Brien & Grant, P.C., Omaha, for appellee Koterzina.
Jill Gradwohl Schroeder, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee Second Injury Fund.
Copple Chevrolet, Inc., appeals the order of the Workers' Compensation Court awarding Frank Koterzina, the plaintiff-appellee, workers' compensation benefits. Copple does not dispute that Koterzina is totally disabled and entitled to disability benefits. Copple claims, however, that portions of the compensation court's award were in error. Specifically, Copple asserts that the compensation court's award of benefits to pay for the home health care services provided to Koterzina by his wife, Mary Lou Koterzina, are excessive and not supported by the evidence. Copple also objects to Koterzina's recovery of certain construction costs in his new home as "appliances" or "supplies," pursuant to Neb.Rev.Stat. § 48-120 (Reissue 1988). Regarding the remainder of Koterzina's award, Copple asserts that the Second Injury Fund should be found liable for medical and hospital expenses, and Copple believes that the court erred in not requiring the Second Injury Fund to pay for the entire weekly permanent total disability benefit. For the reasons recited below, we affirm the award as modified.
A decision by the Workers' Compensation Court after rehearing has the same force and effect as a jury verdict, and findings of fact will not be set aside unless, after reviewing the record in the light most favorable to the successful party, this court determines that those findings are clearly erroneous. Hernandez v. Hawkins Constr. Co., 240 Neb. 129, 480 N.W.2d 424 (1992); Wiese v. Becton-Dickinson Co., 239 Neb. 1033, 480 N.W.2d 156 (1992); Miller v. Goodyear Tire & Rubber Co., 239 Neb. 1014, 480 N.W.2d 162 (1992); Anthony v. Pre-Fab Transit Co., 239 Neb. 404, 476 N.W.2d 559 (1991); Omaha Processors v. Bloomquist, 237 Neb. 223, 465 N.W.2d 731 (1991). Pursuant to Neb.Rev.Stat. § 48-185 (Cum.Supp.1992), this 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. Kraft v. Paul Reed Constr. & Supply, 239 Neb. 257, 475 N.W.2d 513 (1991).
The record reveals that Koterzina was injured in 1959 when a ditch caved in on him while he was doing construction work. He apparently injured his cervical spine at that time, but the injury did not produce lasting symptoms until 1960 when Koterzina was swimming and performed a horizontal dive across the water. At that time, it was discovered that he had a fracture of the fifth cervical vertebra and a cervical myelopathy, or injury to the spinal cord itself. He sustained a spastic paraparesis of the right arm and lower extremities, and a mildly spastic bladder. In other words, the spinal cord was injured so severely that he lost the ability to walk without a limp and to use his right hand.
Copple hired Koterzina to be a salesman, fully aware of his prior injury. On January 28, 1989, while working for Copple, Koterzina was injured when the car he was driving hydroplaned and slid into a bridge abutment. He hit the roof of the car with his forehead, but was not knocked unconscious. He did not have a seatbelt on, and he sustained five rib fractures, a scalp contusion, a lip laceration, and a left distal fibular fracture. Most notably, he sustained a fifth cervical vertebral body burst fracture with cervical myelopathy. Koterzina was hospitalized and went through rehabilitation at Immanuel Medical Center in Omaha. The physicians testified by deposition that as of May 1990, Koterzina had reached maximum medical improvement, and one ranked his physical impairment at a 65-percent impairment of the body as a whole.
The Workers' Compensation Court found, and the parties do not dispute, that as a result of his 1959 and 1960 injuries, Koterzina sustained a partial permanent disability Copple appeals, and its assignments of error may be distilled into the assertion that the compensation court erred in (1) ordering Copple to pay for Mary Lou Koterzina's services; (2) ordering Copple to pay for the home improvements; (3) failing to require the Second Injury Fund to pay for medical expenses; (4) finding that standing alone, the second injury produced a 70-percent loss of earning capacity; and (5) apportioning 70 percent of Koterzina's permanent total disability benefits to Copple.
which would qualify him for benefits under the Second Injury Fund, should the disability from a second injury be substantially greater than that which would have resulted from the prior injury alone. The record reveals that the court also found that Koterzina was 100-percent disabled since the car accident and stated specifically that the accident of January 28, 1989, "standing alone and of itself, produced a 70 percent loss of earning power." The compensation court ordered Copple to pay all medical and hospital services, which at the time of the rehearing exceeded $262,000. Copple was also ordered to pay Koterzina $140 per week for home health care provided by Koterzina's wife, $18,376 for construction costs to Koterzina's new home to make it handicapped-accessible, the whole of Koterzina's temporary total disability benefits, and 70 percent of the weekly permanent total disability payments. The Second Injury Fund was ordered to pay 30 percent of the weekly permanent total disability payments
The Nebraska Supreme Court has held that a claimant is entitled to recover his or her cost of home health care if three requirements are met: First, the employer must be aware of the compensable disability and the employee's need for the home care; second, the care provided by the spouse or health care worker must be beyond normal household duties; and third, there must be a reasonable means of determining the value of such services. Quinn v. Archbishop Bergan Mercy Hosp., 232 Neb. 92, 439 N.W.2d 507 (1989). See, also, Kidd v. Winchell's Donut House, 237 Neb. 176, 465 N.W.2d 442 (1991); Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978). Copple asserts that the care provided by Mary Lou Koterzina never rose above the level of normal household duties, and even if it did, there was insufficient evidence to determine the value of these services.
Case law states that examples of compensable services include serving meals in bed, bathing, laying out clothes and assisting in dressing, administering medication, and assisting with toilet regimes. See, Kidd, supra; Quinn, supra; Currier v. Roman L. Hruska U.S. Meat Animal Res. Ctr., 228 Neb. 38, 421 N.W.2d 25 (1988).
A review of the record in a light most favorable to the successful party reveals that Mary Lou Koterzina is required to assist Koterzina with his bedside urinal and that she cleans him after encopresis, inserts rectal suppositories every other day, assists in bathing him, assists in dressing him, does all the extra laundry associated with the care of an incontinent patient, and assists with transfers from his scooter to a chair or car. Testimony by Cindy Brennfoerder, a home health care provider, indicated that the services Mary Lou Koterzina provides are comparable to those provided by a home health care aide, except for the suppository placement, which could only be provided by a licensed practical nurse or registered nurse. Brennfoerder testified that she charges $11.50 per hour for the services of home health aides and $42 for a nurse to visit and insert a suppository. She also testified that no health care provider would be likely to respond in the night to clean up an accident unless that worker was a 24-hour live-in aide. Testimony by both Mary Lou Koterzina and Brennfoerder supports the compensation court's finding that Mary Lou Koterzina provides a minimum of 14 hours a week in extraordinary services for her husband, entitling her to $140 a week in compensation. The compensation court did not err in determining that the services were compensable, and said portion of its order is affirmed.
The Workers' Compensation Act provides that the employer "shall be liable It is clear from the record that the improvements to Koterzina's home make the home handicapped-accessible. Koterzina is essentially bound to a scooter or wheelchair, and without a ramp, these vehicles are rendered useless. He cannot turn a doorknob. He cannot raise his foot high enough to enter the shower, or lower himself safely onto a toilet. He cannot negotiate stairs. He cannot reach upper pantries. The modifications to his home are necessary as a result of his incapacity and are "required by the nature of [his] injury." Without these improvements and appliances, Koterzina cannot traverse from room to room, transfer safely to his car in the garage, or have a safe place to hide should a tornado pass through, an occurrence not uncommon in this part of the country. The issue then becomes, Do these improvements "relieve pain or promote and hasten the employee's restoration to health and employment"? See § 48-120.
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