Madlock v. Square D Co.
| Decision Date | 22 April 2005 |
| Docket Number | No. S-04-758.,S-04-758. |
| Citation | 269 Neb. 675,695 N.W.2d 412 |
| Parties | Amanda MADLOCK, appellant, v. SQUARE D COMPANY, appellee. |
| Court | Nebraska Supreme Court |
Timothy S. Dowd, of Dowd, Dowd & Howard, Omaha, for appellant.
Brenda S. Spilker and Tracy L. Stoehr, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.
Amanda Madlock appeals from the judgment of a Workers' Compensation Court review panel that reversed, in part, an award entered by the trial court. The review panel found that because Madlock's foot injury (a scheduled member injury) was taken into consideration in determining her loss of earning capacity, the trial court's award of separate benefits for the member injury constituted an impermissible double recovery of benefits.
With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).
On September 7, 1999, while employed by the Square D Company (Square D), Madlock was carrying a 60- to 70-pound box of circuit breakers, when the handles on the box broke and the box landed on her right foot. The parties stipulated that Madlock's injury resulted from an accident arising out of and in the course of her employment; that she suffered an injury to her right foot resulting in a permanent partial impairment of 22 percent; that she was earning an average weekly wage of $694.08 at the time of the accident; and that all benefits owed to her as a result of the foot injury, including disability and medical benefits, had been paid by Square D. The parties disagreed concerning whether back problems Madlock experienced were causally related to the accident. Madlock claimed that her gait was altered because of the foot injury, resulting in a low-back condition.
Dr. John McClellan of the Nebraska Spine Center opined that Madlock had persistent lumbar back pain caused by the residual effects of the injury to her right foot. Dr. Denise Vosik stated that the residual effects of the foot injury resulted in an injury to the body as a whole and that the chronic and recurrent sacroiliac dysfunction experienced by Madlock was caused, or at least significantly aggravated, by the work accident. Square D offered the report of Dr. Christopher Anderson, which report stated that it was "medically possible that [Madlock's] right foot injury may have caused some secondary gait deviations, which altered the ... biomechanics through her back, yet not to a severe degree that would cause multilevel lumbar degenerative disc disease and annular tears." Anderson opined that those conditions were "more than likely" preexistent to the foot injury, noting that Madlock was hospitalized in April 1986 for similar low-back pain.
In determining Madlock's loss of earning capacity, the trial court considered the impact of the member injury and concluded that a fair and accurate assessment of Madlock's loss of earning capacity could not be made absent the inclusion of the limitations flowing from the member injury. The trial court noted: "The impact and adverse effect of the scheduled injury upon the plaintiff's whole body injury is evident as one considers the fact that even the medical experts could not segregate the two."
The trial court found that the medical evidence documented the existence of an altered gait due to the right foot injury, that Madlock had met and carried her burden of proof on the issue of causation, and that Madlock had suffered a 10- percent loss of earning capacity. The trial court awarded her $46.26 per week for each week from and after the date of the accident for the statutorily mandated period of entitlement less those weeks during which she received or was entitled to temporary total and temporary partial disability benefits.
The trial court found that the member injury continued to operate as an independent source of restriction and limitation, noting that "`[w]hile sitting to do her work, [Madlock] noticed that the swelling would become worse and as a result,'" she would have to elevate her leg. The trial court stated:
The award entered by the trial court included $462.72 per week for 24 1/7 weeks for temporary total disability due to the member injury; $4,248.65 for varying periods of temporary partial disability; $462.72 for 47.3 weeks for a 22-percent permanent impairment to Madlock's right foot; $462.72 per week for 8 weeks for temporary total disability due to the low-back injury; and $46.27 per week for a 10-percent loss of earning capacity for a period of 238 5/7 weeks.
Square D sought review by a three-judge panel, asserting that the trial court erred in awarding benefits for a 22-percent permanent partial impairment of the right foot in addition to awarding benefits for a 10-percent loss of earning capacity, because the impact of the member injury was already considered in calculating the loss of earning capacity award.
The review panel affirmed the trial court's order except that it reversed the finding that Madlock was entitled to benefits for a member injury in addition to benefits for a loss of earning capacity when the member impairment was considered in assessing the loss of earning capacity. The review panel concluded that Madlock had sustained a member injury which ultimately led to a back injury and that the back injury was an extraordinary or unusual result which entitled her to an award for loss of earning capacity. The review panel determined that the trial court had properly considered the impact of the member injury in awarding loss of earning capacity, but that it was error to award weekly benefits for a 22-percent member impairment. It concluded that this award resulted in a double recovery for the member injury, in that Madlock would receive both scheduled member benefits and an increase in loss of earning capacity. The review panel reversed that portion of the award providing Madlock with benefits for a member injury in addition to a loss of earning capacity. Madlock appeals.
Madlock asserts that the three-judge review panel erred in reversing that portion of the trial court's award of benefits for a 22-percent permanent partial impairment of the right foot.
The issue is whether a worker may recover benefits for both a scheduled member injury and a whole body injury resulting in loss of earning capacity when the member injury was taken into consideration in determining the loss of earning capacity. The issue presents a question of law rather than one of fact. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).
In this case, the review panel stated:
We believe [the trial court's] award of scheduled member benefits after specifically including the limitations imposed upon the plaintiff by her member injury in assessing loss of earning capacity to be in error.... In this instance, the plaintiff sustained a member injury which ultimately lead [sic] to a back injury, an extraordinary or unusual result, entitling her to an award for loss of earning capacity. We believe that [the trial court] properly considered the impact of the member injury in making his award of loss of earning capacity, but find that it was error for him to award in addition the weekly indemnity benefits for a 22 percent member impairment. Such result leads to a double recovery of benefits for the member injury. Not only does the plaintiff receive an increase in loss of earning capacity but then also receives the scheduled member benefits as well.
The panel reversed that portion of the award which provided Madlock $462.72 per week for 47.3 weeks for a 22-percent permanent impairment to her right foot.
Neb.Rev.Stat. § 48-121 (Reissue 2004) provides for compensation for three categories of job-related disabilities: (1) total disability, (2) partial...
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