Lenz v. Cent. Parking Sys. of Neb., Inc.

Decision Date27 June 2014
Docket NumberNo. S–13–930,S–13–930
Citation848 N.W.2d 623,288 Neb. 453
CourtNebraska Supreme Court
PartiesGary M. Lenz, appellee, v. Central Parking System of Nebraska, Inc., and New Hampshire Insurance Company, appellants.

OPINION TEXT STARTS HERE

Appeal from the Workers' Compensation Court: Thomas E. Stine, Judge. Affirmed.

Tiernan T. Siems and Karen M. Keeler, of Erickson & Sederstrom, P.C., for appellants.

Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
Syllabus by the Court

1. Workers' Compensation: Appeal and Error. Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own decisions.

2. Statutes. Statutory interpretation presents a question of law.

3. Workers' Compensation: Limitations of Actions. Determining when the statute of limitations starts under Neb.Rev.Stat. § 48–137 (Reissue 2010) presents a question of law.

4. Workers' Compensation: Appeal and Error. A judgment, order, or award of the 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.

5. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.

6. Workers' Compensation. Disability as a basis for compensation under Neb.Rev.Stat. § 48–121(3) (Reissue 2010) is determined by the loss of use of a body member, not loss of earning power.

7. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

Wright, J.

NATURE OF CASE

Gary M. Lenz was injured in an accident arising out of and in the course of his employment as an outdoor parking lot attendant. More than 2 years after the last voluntary payment of benefits by Central Parking System of Nebraska, Inc., and New Hampshire Insurance Company (collectively Central) but within 2 years of the partial amputation of the fifth metatarsal in Lenz' right foot, he sought additional benefits for his work-related injury. The question presented is whether the partial amputation was a material change in condition and substantial increase in disability that would permit Lenz to seek benefits more than 2 years after Central's last voluntary payment. We affirm the judgment of the Workers' Compensation Court that awarded benefits.

SCOPE OF REVIEW

Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own decisions. Deleon v. Reinke Mfg. Co., 287 Neb. 419, 843 N.W.2d 601 (2014). Statutory interpretation presents a question of law. Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013). The interpretation and meaning of a prior opinion present a question of law. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011). “Determining when the statute of limitations starts under [Neb.Rev.Stat.] § 48–137 [ (Reissue 2010) ] presents a question of law.” Obermiller v. Peak Interest, 277 Neb. 656, 658, 764 N.W.2d 410, 412 (2009).

A judgment, order, or award of the 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. Neb.Rev.Stat. § 48–185 (Cum.Supp.2012). See, also, Hynes v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013).

FACTS

On December 20, 2008, Lenz developed frostbite on his right foot while performing his duties as an outdoor parking lot attendant. It was not disputed that the accident and resulting injury arose out of and in the course of Lenz' employment with Central. The parties agreed that Lenz was earning an average weekly wage of $194.25 for purposes of temporary disability benefits and $310 for purposes of permanent disability benefits.

Until mid–2009, Central voluntarily paid for the medical treatment of Lenz' frostbite injury, including two surgeries. Central paid temporary total disability benefits of $86.33 from December 21, 2008, through June 21, 2009, for a total of $2,256.91. The record does not indicate that the parties entered into a written agreement regarding Lenz' compensation.

In April 2009, Lenz moved to Colorado, where he continued treatment for the frostbite injury. He submitted his medical bills to a Colorado indigent care program and not to Central's workers' compensation insurance carrier.

Lenz returned to Nebraska in February 2012. Because the ulcers caused by the frostbite injury had not healed, he continued to receive medical treatment. In September, he was hospitalized for an infection in the ulcers. The infection spread to the fifth metatarsal in Lenz' right foot, and on October 31, a partial amputation of the fifth metatarsal was performed.

In January 2013, Lenz filed a petition with the Workers' Compensation Court, seeking temporary total and permanent partial disability benefits, reimbursement of medical expenses, and vocational rehabilitation benefits. He requested temporary total disability benefits of $129.50 from the date of the accident through May 2009 and permanent partial disability benefits of $206.67 for 30 weeks based upon a 20–percent disability of his right foot. Central affirmatively alleged that his petition was barred by the statute of limitationsin Neb.Rev.Stat. § 48–137 (Reissue 2010).

The relevant issues considered at trial before the Workers' Compensation Court were whether Lenz' petition was time barred by the applicable statute of limitations, whether he was entitled to benefits, and if so, what benefits he should be awarded. It was not disputed that Lenz' petition was filed more than 2 years after Central's last payment of benefits.

Lenz asserted that his petition was not barred by § 48–137, because the action was commenced within 2 years of a substantial and material worsening of his condition. He asked the Workers' Compensation Court to apply the exception to § 48–137 recognized in White v. Sears, Roebuck & Co., 230 Neb. 369, 431 N.W.2d 641 (1988).

Central claimed that pursuant to recent case law, the exception in White was unenforceable. And in the event that the Workers' Compensation Court concluded the exception did apply, Central claimed that there had not been a substantial change in Lenz' condition to justify application of the exception and that Lenz could have filed his petition much earlier than January 2013.

Lenz testified that in late 2012, the injury to his right foot “changed and worsened” and ultimately required a partial amputation of the fifth metatarsal in his right foot. According to Lenz, after the partial amputation, the ulcers resulting from the frostbite injury fully healed. Although his condition had improved, he still experienced pain in his right foot. He admitted that he could have filed his petition for workers' compensation benefits sooner, but stated that in May 2009, his claims representative told him that [his] workman's comp case [was] pretty well finished.”

Lenz offered the deposition of Dr. Steven Black, the medical director of the Nebraska Medical Center's Center for Wound Healing. Black explained that prior to the partial amputation, Lenz was “subject to frequent and near continuous episodes of recurrence of the ulcers.” After reviewing Lenz' medical records, Black opined that Lenz' condition got “significantly worse” in 2012 due to the bone infection and that Lenz had not reached maximum medical improvement until at least 6 months after the partial amputation. He concluded that Lenz had a permanent partial disability to the right foot of 20 percent, [b]ased on the fact that [Lenz] cannot carry out a job on his feet or in cold weather without ulceration....”

The Workers' Compensation Court determined that “part of the relief requested by [Lenz was] time barred pursuant to § 48–137,” but that Lenz was “entitled to additional benefits related to the amputation of his fifth metatarsal.” The court found that Lenz' injury was not latent and progressive, but that the infection of the bone, diagnosed on October 28, 2012, and the resulting partial amputation constituted a “material and substantial increase in disability resulting from the original work injury.” Because Lenz had filed his petition within 2 years of that material and substantial change, the court held that the petition was timely under White.

The Workers' Compensation Court concluded that Lenz had “sustained [a] 20 [-]percent permanent impairment to his right foot as a direct result of the material and substantial increase in incapacity related to the October 28, 2012 [,] worsening of [his] condition.” The court awarded 30 weeks of permanent partial disability in the amount of $206.67 per week, to begin April 28, 2013. It awarded reimbursement for medical expenses and mileage incurred on and after October 28, 2012.

Central timely appeals. Pursuant to our statutory authority to regulate the dockets of the appellate courts of this state, we moved the case to our docket. See Neb.Rev.Stat. § 24–1106(3) (Reissue 2008).

ASSIGNMENTS OF ERROR

Central assigns, restated and reordered, that the Workers' Compensation Court erred in (1) finding that Lenz' claim was not barred by the statute of limitations, (2) finding that Lenz suffered a material and...

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