Lewis v. MBC Constr. Co.

• Decision Date: 16 July 2021
• Docket Number: No. S-20-728.,S-20-728.
• Citation: 309 Neb. 726,962 N.W.2d 359
• Parties: Allen Michael LEWIS, appellee and cross-appellant, v. MBC CONSTRUCTION CO., INC., and Carolina Casualty Ins. Co., appellants and cross-appellees.
• Court: Nebraska Supreme Court

309 Neb. 726

962 N.W.2d 359

Allen Michael LEWIS, appellee and cross-appellant,

v.MBC CONSTRUCTION CO., INC., and Carolina Casualty Ins. Co., appellants and cross-appellees.

No. S-20-728.

Supreme Court of Nebraska.

Filed July 16, 2021

Daniel P. Lenaghan, Omaha, and Christine E. Westberg Dorn, of Sodoro, Mooney & Lenaghan, L.L.C., for appellants.

Justin High and Erin N. Fox, of High & Younes, L.L.C., Omaha, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

Allen Michael Lewis was injured in the course of his employment with MBC Construction Co., which injury ultimately resulted in the amputation of his left leg. This case arises from Lewis’ request for MBC Construction Co. and Carolina Casualty Ins. Co. (collectively MBC) to build accessible housing for him. The compensation court rejected Lewis’ proposal for a four-bedroom, three-garage accessible house, but found certain accessibility features reasonable, necessary, and required due to the nature of Lewis’ injury. It ordered MBC to modify an existing home or potentially build a unit to meet Lewis’ accessibility requirements. MBC appeals, and Lewis cross-appeals. Because of ambiguity in its order, we conclude that the compensation court's order did not provide a meaningful basis for appellate review of its order regarding alternative accessible housing, and accordingly, we vacate the order and remand the cause with directions to enter an order in compliance with Workers’ Comp. Ct. R. of Proc. 11 (2021). In view of our disposition of the appeal, we do not consider Lewis’ cross-appeal.

STATEMENT OF FACTS

On May 1, 2015, while Lewis was working for MBC Construction Co., an autopaving machine rolled on Lewis and crushed his leg. The leg was ultimately amputated above the knee

. Neither party disputes that the amputation was a consequence of Lewis’ original injury. Lewis now uses a wheelchair, scooter, and crutches. One of Lewis’ treating physicians, Dr. Toby Free, testified to Lewis’ challenges using a prosthesis, including edema, vascular damage, and other issues that affected the healing and fit at the amputation site.

Before and after the injury, Lewis lived with friends, with family, or in rental homes. The compensation court noted that most recently, he lived in a two-bedroom apartment with his sister.

Because of his restrictions, Lewis sought modification of his rental property from MBC and retained a physician assistant to evaluate his residence and vehicle for medically necessary modifications to accommodate his injury. Based on this report from the physician assistant, Dr. Free agreed that Lewis should have an accessible home. However, before an accessibility solution was implemented, Lewis was evicted from that rental property.

Lewis sought an estimate from a home builder for an accessible house with four bedrooms—one for himself and each of his children. The estimate was nearly $400,000. Lewis filed a motion to compel that would direct MBC to build the accessible house for his use. Lewis submitted evidence that a four-bedroom accessible house is difficult to find.

Dr. Free opined that "Lewis will need a fully handicap accessible home with a bathroom on the main floor. His home needs to be fully wheelchair accessible. He sometimes needs to use the wheelchair now and I expect he will need to use it more in the future as he ages." He opined that Lewis’ "current living situation is untenable."

Although MBC claimed it was willing to make modifications to an existing home, it was not willing to purchase or construct a home for Lewis. It submitted an affidavit of Scott Vogt, the chief operating officer of a real estate company, which affidavit discussed homes in the Omaha, Nebraska, area meeting Lewis’ requirements. Vogt analyzed the Omaha rental market and found at least 105 available rental units that would meet Dr. Free's requirements, ranging from $515 to $1,100 per month.

The compensation court found that Lewis’ proposed four-bedroom, three-car-garage house was not reasonable and necessary. However, it also found that Lewis’ injuries limited his ability to get around his home and take care of activities of daily living. It noted that the doors in his living quarters are not wide enough, the cabinets are not at the correct height, and the ground presents tripping hazards documented in the exhibits.

At the time of the hearing, Lewis resided with family in their apartment. The court found that modifications to Lewis’ home are necessary and that "[h]ad it not been for the accident and injury sustained while employed by MBC Construction [Co.], [Lewis] would not now need accessible housing." However, the compensation court explained that such modifications could not be completed on the apartment where Lewis was staying. It analyzed the case law and concluded, "[i]f modifications cannot be done to an existing property, the [court] reads the statute broadly ... that would require defendants to obtain new living quarters for plaintiff that are accessible." It ordered MBC to find new living quarters within 45 days that are accessible.

The compensation court directed MBC to find "an existing home ... to which modifications need to be made." As an alternative, it directed MBC to provide housing for Lewis by "either building or purchasing an accessible home for" him. The order provided that regardless of the eventuality, the potential housing should include at least 11 specified features to make it "accessible for [Lewis’] condition":

1. At least three bedrooms;

2. 36-inch wide doorways throughout the home and at all entry points and exit points;

3. Either zero entry or a ramp for all entry and exit points into the structure; 4. Zero entry for the shower;

5. Reinforced shower bench and grab bars sufficient for his weight;

6. Cut-outs under the sinks in his home so the wheelchair can fit underneath;

7. 60 inches between the cabinets so he can move in and out while opening the cabinets;

8. Reinforced grab bars around the toilets and in the laundry room for safety; 9. Nonslip flooring in the bathroom, laundry room, and kitchen;

10. An oversized commode; and

11. Electrical outlets in the garage, if there is one, for charging his scooter and in the bedroom for charging his prosthetic leg.

MBC appeals, and Lewis cross-appeals.

ASSIGNMENTS OF ERROR

As its sole assignment of error, MBC claims that the compensation court erred when it directed MBC "to purchase real property for the benefit of ... Lewis."

On cross-appeal, Lewis claims that the Workers’ Compensation Court erred when it found his proposed new construction home was unreasonable and unnecessary. He also claims it was clearly wrong for the compensation court not to require garage space in its list of required features in its adaptive housing award. In view of our disposition of the appeal, we do not reach the cross-appeal.

STANDARD OF REVIEW

Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), 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. See Boring v. Zoetis LLC, 309 Neb. 270, 959 N.W.2d 795 (2021).

On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).

ANALYSIS

Both the appeal and cross-appeal taken in this case pertain to an employer's responsibility for an injured worker's home to be made accessible for the worker's work-related injuries. As an initial matter, we set forth our statutory and case law on Neb. Rev. Stat. § 48-120 (Cum. Supp. 2020) as it applies to housing accommodations. Section 48-120(1)(a) provides:

The employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery

or reconstructive surgery but not cosmetic surgery when the injury has caused disfigurement, appliances, supplies, prosthetic devices, and medicines as and when needed, which are required by the nature of the injury and which will relieve pain or promote and hasten the employee's restoration to health and employment, and includes damage to or destruction of artificial members, dental appliances, teeth, hearing instruments, and eyeglasses, but, in the case of dental appliances, hearing instruments, or eyeglasses, only if such damage or destruction resulted from an accident which also caused personal injury entitling the employee to compensation therefor for disability or treatment, subject to the

approval of and regulation by the Nebraska Workers’ Compensation Court, not to exceed the regular charge made for such service in similar cases.

Nebraska courts have previously held that modifications to an injured employee's home can be medical expenses under the appliances or supplies categories of § 48-120(1)(a) when the modifications are "required by the nature of the injury" and if the modifications "relieve pain or promote and hasten the employee's restoration to health and employment." See, Miller v. E.M.C. Ins. Cos. , 259 Neb. 433, 610 N.W.2d 398 (2000) ; Koterzina v. Copple Chevrolet , 1 Neb. App. 1000, 510 N.W.2d 467 (1993). We note that the first sentence of § 48-120 provides a list of examples of reasonable services and items preceded by the word "including." We have previously stated that the word "include," as used in a statute, connotes that the provided list of components is not exhaustive and that there are other items includable that are not specifically enumerated. In re Interest of Seth C. , 307 Neb. 862, 951 N.W.2d 135 (2020) ; See, also, Antonin...