Miller v. Commercial Contractors Equipment
| Decision Date | 28 March 2006 |
| Docket Number | No. A-05-873.,A-05-873. |
| Citation | 711 N.W.2d 893,14 Neb. App. 606 |
| Parties | David J. MILLER, appellee, cross-appellant, and cross-appellee, v. COMMERCIAL CONTRACTORS EQUIPMENT, INC., and Zurich American Insurance Co., its workers' compensation insurer, appellees, cross-appellants, and cross-appellees, and Travelers Indemnity Insurance Company, intervenor-appellant. |
| Court | Nebraska Court of Appeals |
Patrick B. Donahue and Dennis R Riekenberg, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for intervenor-appellant.
Jeffry D. Patterson, of Bartle & Geier Law Firm, Lincoln, for appellee David J. Miller.
Jerald L. Rauterkus and Jason R. Yungtum, of Erickson & Sederstrom, P.C., Omaha, for appellees Commercial Contractors Equipment, Inc., and Zurich American Insurance Co.
David J. Miller filed an action for workers' compensation benefits, alleging that he suffered compensable work accidents on April 9, 1999, and April 15, 2002, in the course of his employment with Commercial Contractors Equipment, Inc. (Commercial Contractors). On April 9, 1999, Zurich American Insurance Co. (Zurich) was Commercial Contractors' workers' compensation insurer, and on April 15, 2002, Travelers Indemnity Insurance Company (Travelers) was Commercial Contractors' workers' compensation insurer. Travelers was dismissed from the case before trial via a stipulation. The trial judge found that Miller had sustained an accident on April 15, 2002, thereby exposing Commercial Contractors to a claim for compensation under Travelers' coverage. Commercial Contractors and Zurich perfected an appeal to a three-judge review panel of the Workers' Compensation Court, and Travelers by motion sought leave to intervene in the appeal, which intervention the review panel allowed. After an unfavorable result from the review panel, Travelers has appealed to this court. We find that the review panel committed plain error by allowing Travelers to intervene in the case after trial and during the appeal process.
On April 9, 1999, Miller suffered a back injury in an accident arising out of and in the course of his employment with Commercial Contractors. At the time of the accident, Miller was employed as a "master mechanic," which required him to "push around heavy stuff" and "carry heavy stuff," including tools weighing 100 pounds. He testified that the labor required of a master mechanic was very physical and that he did a lot of bending, twisting, stretching, and climbing. At the time of trial, Miller had been employed as a master mechanic with Commercial Contractors from 1993 until his second surgery in December 2002.
On September 21, 1999, Dr. Andrew Messer performed an interdiskal electrothermal (IDET) procedure on Miller at the L4-5 level of his spine and an anterior lumbar interbody fusion at the L5-S1 level. Dr. Messer stated in his followup evaluation of Miller that 6½ weeks after that surgery, Miller appeared "very comfortable" and was "essentially free of any back pain" and "doing very well." On January 24, 2000, Miller was allowed to return to work with restrictions of no lifting below knee level and a lifting limit of 35 pounds. On April 10, Dr. Messer released Miller with no restrictions and recommended a "final visit" in 6 months.
Miller testified that he returned to work with Commercial Contractors as a master mechanic in April 2000 and that he did all the same jobs he was required to do before the surgery, but that he had to figure out how to do some things differently, such as heavy lifting. In February 2002, Miller had an "onset of pain that [he] had experienced before." Miller testified that he did not have an accident that gave rise to this onset and that there was no incident that caused him to start having back pain at that time. On April 15, he saw Dr. Messer, complaining of low-back pain. Dr. Messer's notes state that a "provocative discogram" confirmed that the L4-5 level of Miller's spine had "re-torn." On December 20, Miller had a second back surgery, which consisted of an anterior lumbar interbody fusion at the L4-5 level and an anterior stabilization.
Miller was released to return to work on January 6, 2003, on "very light duty." At the time of trial, Miller had not yet returned to full duty as a master mechanic. Miller had a third surgery, on July 23, which is not at issue in the present case.
On January 2, 2003, Miller filed a petition in the Nebraska Workers' Compensation Court against Commercial Contractors and Zurich. We note that Commercial Contractors did not have independent counsel throughout the ensuing litigation and was represented by Zurich's counsel. Miller then filed an amended petition on June 20, naming Travelers and Phoenix Insurance Company (Phoenix) as additional defendants. The amended petition alleged that Miller had suffered an injury arising out of and in the course of his employment with Commercial Contractors on April 9, 1999. It further asserted that Miller returned to work without restrictions on April 10, 2000, and that on April 15, 2002, he stopped work and sought medical care for the "reappearance of lower back pain and disability symptoms." The amended petition alleged that "[i]n whole or in part, the cause of the reappearance of [Miller's] low back pain symptoms was the tasks of his employment with Commercial Contractors, specifically, frequent twisting, frequent bending, heavy physical exertion and heavy lifting." It also alleged that Miller's current low-back condition and any resulting disability were results of an aggravation of his 1999 back injury or a new injury condition of the same L4-5 disk injured in the 1999 workplace accident. Obviously, Miller, under the law to be discussed later, was seeking benefits from an "accident" in April 2002.
On August 14, 2003, nearly 2 months after the amended petition was filed, the parties, including Travelers, entered into a stipulation which we quote in its entirety because its exact language will later be crucial:
COME NOW plaintiff and defendants, by and through their respective counsel of record, and hereby stipulate to the dismissal of Travelers Indemnity Company and Phoenix Insurance Company due to the lack of a present controversy and, in support thereof, state:
1. That plaintiff's Amended Petition alleges the reappearance of plaintiff's low back pain symptoms necessitated cessation of plaintiff's work activities on or about April 15, 2002, and performance of low back surgery on or about December 20, 2002.
2. That defendants, Commercial Contractors Equipment, Inc. and Zurich American Insurance Company, have admitted the December 20, 2002 surgery and associated temporary total disability are related to an incident occurring on or about April 9, 1999.
3. That Travelers Indemnity Company and Phoenix Insurance Company did not provide worker's [sic] compensation insurance coverage for Commercial Contractors Equipment, Inc. on April 9, 1999.
Pursuant to the stipulation, the trial court entered an order on August 14 dismissing Travelers and Phoenix without prejudice "for lack of a present controversy."
At trial on September 29, 2003, Miller moved to amend his operative petition, the amended petition, to remove the allegation that the cause of his condition was an occupational disease, a matter of no import in this appeal. Commercial Contractors and Zurich then orally moved to continue the case in order for Travelers or Phoenix to take part in the trial. Counsel for Commercial Contractors and Zurich argued:
I guess based on the joint stipulation for dismissal . . . I would move that this matter be continued so that these entities, be it Travelers or Phoenix, be made a part of this and if there is a second injury in April of 2002, that . . . that be adjudged to be their responsibility. I mean, that is — the stipulation that we signed says that we accept. By "we," I mean Commercial Contractors and Zurich accept the 2002 December surgery, so that was the basis that these other individuals got out was that that surgery was accepted by us, so if there's some allegation there was another injury, I think they need to be in and I would move that we continue this case to allow those entities to be part of this trial or proceeding.
The trial court said that the joint stipulation appeared "to be more or less an agreement among the insurance companies for [Commercial Contractors]" and that Miller did not make "any express representations [in the stipulation] as to whether or not . . . there was, in fact, a second accident." Thus, the trial court overruled the motion to continue and proceeded with the trial, at which Travelers was not present or represented.
On March 25, 2004, the trial court entered an award finding that Miller was entitled to temporary total disability benefits and medical expenses as a result of the April 9, 1999, injury. The trial court found that Miller suffered a 15-percent loss of earning capacity from the 1999 injury. The trial court also found that Miller suffered an accident on April 15, 2002, which was an aggravation of the 1999 injury, not a recurrence, thereby implicating the Travelers' coverage. The trial court accepted the opinion of Dr. Messer and awarded Miller temporary total disability benefits and present and future medical expenses for the 2002 accident. The trial court denied an award of attorney fees, penalties, and interest because it found that there was a reasonable controversy as to whether Miller suffered an accident on April 15, 2002, and as to whether such accident was a recurrence or an aggravation of the 1999 injury.
On April 7, 2004, Commercial Contractors and Zurich appealed the March 25...
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