Maxey v. Fremont Dept. of Utilities, 84-606

• Decision Date: 02 August 1985
• Docket Number: No. 84-606,84-606
• Citation: 371 N.W.2d 294,220 Neb. 627
• Parties: Timothy J. MAXEY, Appellant, v. FREMONT DEPARTMENT of UTILITIES, Appellee.
• Court: Nebraska Supreme Court

Page 294

371 N.W.2d 294

220 Neb. 627

Timothy J. MAXEY, Appellant, v. FREMONT DEPARTMENT of UTILITIES, Appellee.

No. 84-606.

Supreme Court of Nebraska.

Aug. 2, 1985.

Syllabus by the Court

1. Workmen's Compensation: Appeal and Error. Findings of fact made by the Nebraska Workmen's Compensation Court on rehearing have the same effect as a jury verdict in a civil case, and an order disposing of a case, whether it be to enter an award or cause a dismissal of the claim, may not be set aside where the findings are supported by the evidence. The facts are not reweighed on appeal.

2. Workmen's Compensation: Words and Phrases. Payment of medical and hospital expenses when made with reference to a compensable claim constitutes payment of compensation within the meaning of the workmen's compensation laws.

3. Workmen's Compensation: Words and Phrases. Payments for lost time made in lieu of compensation benefits for an undisputed job-related injury constitute payment of compensation.

4. Workmen's Compensation: Limitations of Actions. A mistake of law does not excuse a late filing for workmen's compensation benefits so as to toll the statute of limitations.

5. Workmen's Compensation: Limitations of Actions. Payment of wages or reimbursement of medical expense by an employer under an employee benefit plan or group health insurance agreement does not constitute remuneration in lieu of workmen's compensation benefits so as to toll the statute of limitations, unless, by the conduct of the employer, it may reasonably be inferred that such payments were made with an intent that payment constitute compensation and a conscious recognition of liability for compensation benefits on the part of the employer.

6. Workmen's Compensation: Limitations of Actions. Where an injury is latent and progressive, the statute of limitations is tolled until it becomes reasonably apparent, or should have become apparent to the employee, that a compensable disability is present, and the burden of proving the latent and progressive nature of the injury is on the employee.

7. Workmen's Compensation: Limitations of Actions. Knowledge that there is a compensable disability, and not awareness of the full extent thereof, is the factor which controls in determining when the statute of limitations begins to run.

8. Workmen's Compensation: Limitations of Actions. The mere fact that an employee did not know the full extent of his injury from a medical standpoint does not make it latent, particularly where the medical facts were reasonably discoverable.

Thomas A. Grennan and John W. Iliff of Gross, Welch, Vinardi, Kauffman & Day, P.C., Omaha, for appellant.

Dennis R. Riekenberg of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Plaintiff has appealed from an order of the Nebraska Workmen's Compensation Court on rehearing which dismissed his claim for benefits allegedly arising out of an accident on May 15, 1980, because of the running of the 2-year statute of limitations.

Plaintiff assigns as errors: (1) The holding that the claim was barred by the statute of limitations; (2) The failure to hold that payment of medical expenses by the defendant-employer's health insurance carrier did not constitute payment of workmen's compensation benefits; (3) The holding that plaintiff's injury was not latent and progressive; and (4) The holding that defendant was not estopped to interpose the statute of limitations as an affirmative defense.

Plaintiff was the only witness to testify as to the accident. He claimed that on May 15, 1980, while employed by the Fremont Department of Utilities, he was shutting an overhead door in a building owned by the defendant when the door came off the rails and struck his lower leg. He was taken to Dodge County Memorial Hospital and eventually, that same day, was examined by a Dr. Dillow. Plaintiff was off work all day Friday, May 16, as well as Monday, May 19, and returned to light duty on the 20th. It is his contention that two of his supervisors, Irv Hoerath and Bob Realph, urged him to return to work on May 20. Both of them deny this.

According to the deposition of Dr. Dillow, the complaints by plaintiff and the medical treatment did not include the knee because the "injury in question according to these notes was well below the knee." Dr. Dillow examined plaintiff but one time, and a claim was filed for his services with the workmen's compensation insurance carrier.

Generally, plaintiff's reasoning for not having filed claims with the workmen's compensation carrier for time he was off work and, later, for medical expenses was because both Irv Hoerath and Bob Realph told him he had to be off work 7 days before he would be entitled to pay under workmen's compensation. Such statements were denied by both of them.

However, according to the plaintiff's testimony, from the day he returned to work on May 20, 1980, until the end of 1982, he said he thought he was not qualified for workmen's compensation benefits even though the defendant never denied the claim.

Plaintiff testified that his knee continued to bother him throughout the months following the accident, and particularly after a day's work it would get worse and would swell. He had problems with his knee from May of 1980 through November of 1982, when he first consulted with an orthopedic surgeon, Dr. Brantigan, on November 8, 1982.

According to a diary which plaintiff prepared from his employment records, exhibit 26, he was off work in excess of 20 days from May 15, 1980, to May 15, 1982, all because of his knee. He either took sick leave or vacation time and did not make claim for workmen's compensation benefits. During this same period of time, he was consulting with a Dr. Eaton and a chiropractor, Dr. Beach, on innumerable occasions, complaining, among other things, about his knee. Specifically, he first consulted with Dr. Beach on March 15, 1982, with a history of having fallen on an icy porch some 8 weeks earlier, injuring his back and knee. On October 31, 1981, he was examined by Dr. Eaton because of a bruise on the left knee.

According to the original history recited in Dr. Brantigan's report of November 8, 1982, plaintiff had had four surgical procedures on this particular knee in 1978 and 1979, including a partial arthroscopic meniscectomy, an open medial meniscectomy, and a patellar shaving procedure. Significant is the physician's statement that plaintiff suffered an accident 1 1/2 years earlier, causing extensive ecchymosis to the leg, but "does not think that this caused any damage to the knee itself."

Sometime the following summer, plaintiff wrote to Dr. Brantigan, advising him that he always did think his knee problem arose out of the accident, and Dr. Brantigan changed his report accordingly. Dr. Brantigan diagnosed plaintiff's problem as a probable cartilaginous loose body in the knee and did an arthroscopic examination which revealed a large tear in the lateral meniscus of the knee. It was his further diagnosis that plaintiff possessed an insufficiency of the anterior cruciate ligament that caused the knee joint to have rotary laxity, allowing the tear of the lateral meniscus to occur just prior to the time that plaintiff came to see Dr. Brantigan.

Following the bills for the initial treatment the day of the accident, all of the medical bills through August of 1983, totaling nearly $10,000, were turned in by the plaintiff on forms of the group health insurance carrier, on which he had indicated each time "not a work-related injury." He seems to justify this position on the original disputed statements of his superiors that he had to be off work more than 7 days to qualify for compensation benefits. In the same manner, and presumably for the same reason, when plaintiff would call in to report that he would not be at work, he would designate whether sick leave or vacation leave should apply.

The only "live" witness other than the plaintiff to testify was Jan Marie Rice, administrative secretary for the Fremont Department of Utilities. It was her testimony generally that the department would rely on the information provided by the employee as to whether to process an injury claim as workmen's compensation or health and accident.

In our review of this case we are guided by the principle that findings of fact made by the Nebraska Workmen's Compensation Court on rehearing have the same effect as a jury verdict in a civil case, and an order disposing of a case, whether it be to enter an award or cause a dismissal of the claim, may not be set aside where the findings are supported by the evidence. The facts are not reweighed on appeal. Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211 (1984).

As previously stated, the accident in question occurred on May 15, 1980. Plaintiff's petition was filed in the compensation court on November 7, 1983. The final payment made by the workmen's compensation carrier, Aetna Insurance Company, was made on June 15, 1980. All other payments for medical services were made by defendant's health insurance carrier.

Neb.Rev.Stat. § 48-137 (Reissue 1984) provides that all claims for workmen's compensation benefits shall be forever barred unless a petition shall have been filed within 2 years of the accident or 2 years of the last payment of compensation benefits.

Therefore, unless the payments for medical services made by the health insurance carrier can be considered as payments of compensation benefits, or unless the injury was latent and progressive so as to toll the running of the statute of limitations, this claim is barred because of not having been filed within 2 years of June 15, 1980.

Plaintiff admits, by way of argument, that this court has not directly addressed the issue of medical payments under a health and accident plan as constituting payment of compensation, but argues...