McBee v. Goodyear Tire and Rubber Co., Inc.

• Decision Date: 08 January 1999
• Docket Number: No. S-97-1140,S-97-1140
• Citation: 587 N.W.2d 687,255 Neb. 903
• Parties: Robert K. McBEE, appellant and cross-appellee, v. GOODYEAR TIRE AND RUBBER COMPANY, INC., appellee and cross-appellant.
• Court: Nebraska Supreme Court

Page 687

587 N.W.2d 687

255 Neb. 903

Robert K. McBEE, appellant and cross-appellee, v. GOODYEAR TIRE AND RUBBER COMPANY, INC., appellee and cross-appellant.

No. S-97-1140.

Supreme Court of Nebraska.

Jan. 8, 1999.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. Under the provisions of Neb.Rev.Stat. § 48-185 (Reissue 1993), an appellate court may modify, reverse, or set aside a Nebraska 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.

2. Workers' Compensation: Appeal and Error. The findings of fact made by a workers' compensation court trial judge are not to be disturbed upon appeal to a workers' compensation court review panel unless they are clearly wrong on the evidence or the decision was contrary to law.

3. Workers' Compensation: Appeal and Error. Findings of fact made by the Nebraska Workers' Compensation Court after review have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly erroneous.

4. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party.

5. Workers' Compensation: Evidence: Appeal and Error. If the record contains evidence to substantiate the factual conclusions reached by the Nebraska Workers' Compensation Court, an appellate court is precluded from substituting its view of the facts for that of the compensation court.

6. Workers' Compensation: Attorney Fees: Penalties and Forfeitures: Time. Neb.Rev.Stat. § 48-125 (Reissue 1993) authorizes a 50-percent penalty payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation.

7. Workers' Compensation: Attorney Fees. Whether a reasonable controversy exists pertinent to Neb.Rev.Stat. § 48-125 (Reissue 1993) is a question of fact.

8. Workers' Compensation: Attorney Fees: Words and Phrases. A reasonable controversy may exist (1) if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part.

9. Workers' Compensation: Testimony. Under the test in Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987), when there is some conflict in the medical testimony adduced at trial, reasonable but opposite conclusions could be reached by the Nebraska Workers' Compensation Court. As such, this indicates the presence of a reasonable controversy.

10. Workers' Compensation: Proof. A workers' compensation claimant bears the burden to establish a causal relationship between the alleged injury and the employment.

11. Workers' Compensation: Proof. Until an employee presents the employer with competent medical evidence that he or she is entitled to workers' compensation benefits, a reasonable controversy may exist regarding the employer's liability notwithstanding the fact that the employer has voluntarily paid benefits to the employee.

12. Workers' Compensation: Liability. Voluntary payments of workers' compensation benefits do not constitute an admission of liability by an employer.

13. Workers' Compensation: Penalties and Forfeitures. The fact that an employer voluntarily pays workers' compensation benefits does not in all cases permit the employer to cease payment of benefits without being subject to penalties if the cessation of benefits was not justified.

Gordon Peterson, of Orton, Thomas, Peterson & O'Connell, Lincoln, for appellant.

Anne E. Winner, of Keating, O'Gara, Davis & Nedved, P.C., Lincoln, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Robert K. McBee, appellant, was injured in an accident arising out of and in the course of his employment on September 30, 1992, and claimed certain benefits under the Nebraska workers' compensation laws. Up through August 1995, all of McBee's benefits were paid to him voluntarily by his employer, Goodyear Tire and Rubber Company, Inc., appellee. After August 1995, Goodyear refused to pay McBee any further temporary total disability benefits, based on McBee's medical records and specifically on an entry concerning a basketball injury. McBee brought this claim before the Nebraska Workers' Compensation Court. The trial court held that Goodyear was not justified in refusing to pay McBee further benefits, because there was no reasonable controversy on medical causation. It also found that Goodyear had a duty to inquire and to investigate the compensability of McBee's claim. The trial court ordered Goodyear to pay a 50-percent penalty payment, attorney fees, interest, and costs. Goodyear filed an application for review, and the review panel found there was a reasonable controversy regarding medical causation and reversed the award of the 50-percent penalty payment, attorney fees, interest, and costs. The review panel further found that Goodyear did not have a duty to inquire and to investigate McBee's claim. On our own motion, we removed the matter to this court under our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. We affirm.

BACKGROUND

McBee was injured in an accident arising out of and in the course of his employment with Goodyear when he struck his right elbow. Soon after the injury, McBee sought medical care and was referred to Dr. William Garvin, whom McBee saw for the first time in October 1993. The original diagnosis was lateral epicondylitis of the right elbow. Garvin continued to be McBee's main treating orthopedic physician through the time of trial. McBee and Goodyear agreed that McBee was entitled to temporary total disability from November 26, 1993, through April 4, 1994, and from August 29 through September 14, 1994, which Goodyear voluntarily paid. The parties have stipulated that all temporary total disability benefits due prior to August 9, 1995, have been paid.

On June 6, 1995, McBee went to see Garvin and mentioned in this visit that he had jammed his right elbow while playing basketball. Up to and including this visit, Garvin's diagnosis of McBee's condition continued to be chronic lateral epicondylitis. However, at this visit, McBee was also diagnosed with ulnar nerve irritation on the right elbow. In August or September 1995, Tom Booth, who supervises workers' compensation cases for Goodyear; Burt Metzger, of Travelers Insurance Company, which administers Goodyear's self-insured plan; and Anne Winner, Goodyear's attorney in this case, met to discuss several pending workers' compensation McBee filed a petition in the compensation court. Goodyear filed an answer in the form of a general denial. In September 1996, McBee's attorney took the deposition of Garvin for use at trial. In his deposition, Garvin stated that the lateral epicondylitis was caused by McBee's original work injury on September 30, 1992. On direct examination, Garvin related the ulnar nerve irritation to the 1992 injury, but on cross-examination, indicated the injury to the ulnar nerve might be from the basketball incident. Sometime after Garvin's deposition was taken, the parties stipulated that Goodyear owed McBee past temporary total disability benefits for the dates August 10, August 24, and August 25, 1995, and from August 29, 1995, up to and including August 19, 1996, a period of 360 days or 516/7 weeks, at the maximum temporary total disability rate of $265 per week. The parties further stipulated that Goodyear tendered checks to McBee on October 18 and November 25, 1996, in payment of the past due temporary total disability benefits. McBee does not claim a penalty payment based on untimely payments after the date of Garvin's deposition.

cases, including McBee's. Based on the medical records from Garvin, especially the entry concerning the basketball incident, and on the recommendation of Winner, Goodyear decided not to pay any further temporary total disability benefits to McBee.

The trial court concluded there was no reasonable controversy regarding the causation of McBee's injury from and after June 6, 1995, and awarded McBee past temporary total disability (which Goodyear had already paid) and a 50-percent penalty payment for the previously unpaid benefits for the period between August 10, 1995, and August 19, 1996; attorney fees; interest; and costs. The trial court also found that Goodyear had a duty to inquire and to investigate the compensability of McBee's claim, which it failed to do.

Goodyear appealed. The review panel reversed the trial court's decision on the issue of whether or not there was a reasonable controversy, concluding there was a reasonable controversy on medical causation. It also reversed the trial court's award of a 50-percent penalty payment, attorney fees, interest, and costs. The review panel further reversed the trial court's finding that Goodyear had a duty to affirmatively inquire and to investigate the compensability of McBee's claim.

ASSIGNMENTS OF ERROR

McBee assigns that the review panel erred in (1) finding that the trial court was clearly wrong when it found there was no reasonable...