Miller v. EMC Ins. Companies
| Decision Date | 12 May 2000 |
| Docket Number | No. S-99-232.,S-99-232. |
| Citation | 610 N.W.2d 398,259 Neb. 433 |
| Parties | Tyrone MILLER, doing business as Ty Miller Dental Lab, appellant and cross-appellee, v. E.M.C. INSURANCE COMPANIES, defendant and third-party plaintiff, appellee and cross-appellant, and State of Nebraska, Second Injury Fund, third-party defendant, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Dennis D. King, of Smith and King, P.C., Gordon, for appellant.
Waler E. Zink II, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee E.M.C. Insurance Companies.
Don Stenberg, Attorney General, and John R. Thompson, Lincoln, for appellee State.
This is an appeal from an "Order of Affirmance as Modified on Review" entered by the review panel of the Nebraska Workers' Compensation Court. Tyrone Miller, doing business as Ty Miller Dental Lab, appealed the order, and E.M.C. Insurance Companies (E.M.C.) and the State of Nebraska, Second Injury Fund (the Fund), cross-appealed, all alleging error in the order as modified by the review panel. On our own motion, we removed the matter to this court pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals.
Miller filed a petition with the compensation court alleging that he was self-employed as a dental laboratory technician and sustained injury arising out of and in the course of his employment on June 9, 1993, and February 21, 1994. Miller alleged that on June 9, 1993, he sustained injuries to his upper back and extremities while trying to sit on a chair at his place of employment. Miller alleged that on February 21, 1994, he fell on the sidewalk while leaving his place of employment and sustained an injury to his right shoulder area. E.M.C. filed an answer admitting Miller was injured, admitting notice, and admitting Miller was insured by E.M.C. on June 9, 1993, and February 21, 1994, but denied liability to Miller. Miller then filed an amended petition impleading the Fund as a third-party defendant. The amended petition alleged that Miller had a permanent partial disability prior to the two work-related accidents due to a car accident in 1958 in which Miller suffered compression fractures to the fifth through the seventh vertebrae, resulting in permanent partial paraplegia. The amended petition further alleged that the combination of the preexisting injuries and the injuries from the work-related accidents caused a permanent total disability. The Fund filed an answer also denying liability.
Trial was had in the compensation court before a single judge. The trial court found that Miller was entitled to benefits under the Nebraska Workers' Compensation Act, finding that Miller had sustained his burden of proving that he suffered work-related accidents and injuries on June 9, 1993, and on February 21, 1994, arising out of and in the course of his employment. Specifically, the trial court found that on June 9, Miller was self-employed as a dental laboratory technician and while so employed and engaged in the duties of his employment, he suffered injuries to his back as a result of an accident arising out of and in the course of his employment. The trial court found that as a result of said accident and injury, Miller was temporarily partially disabled from and including June 10, 1993, to and including February 21, 1994. The trial court also found that on February 21, 1994, Miller was self-employed as a dental laboratory technician and while so employed and engaged in the duties of his employment, he suffered injuries to his right shoulder as a result of an accident arising out of and in the course of his employment. The trial court found that as a result of said accident and injury and in combination with the accident and injury of June 9, 1993, Miller continued to be temporarily partially disabled from and including February 22, 1994, to and including April 21, 1994. The trial court found that thereafter, Miller became temporarily totally disabled from and including April 22, 1994, to and including April 26, 1995, and that thereafter, Miller became permanently and totally disabled. The trial court further found that Miller sustained a 10-percent permanent partial disability to his right arm.
The trial court found that E.M.C. had failed to show that the Fund should be apportioned liability for the benefits awarded to Miller. However, the trial court found that Miller had presented evidence which satisfied the requirements of Neb.Rev.Stat. § 48-128 (Reissue 1993) and apportioned liability to the Fund. Specifically, the trial court found that the Fund was liable for 80 percent of Miller's indemnity benefits as of April 27, 1995, for so long as Miller shall remain permanently and totally disabled. The trial court also ordered E.M.C. to pay for Miller's medical expenses, including reimbursing the State Department of Education's vocational rehabilitation services for expenses incurred in modifying Miller's home.
The trial court further found that Miller was entitled to receive penalties and interest on unpaid indemnity benefits from June 6, 1994, the date E.M.C. had clear, uncontroverted notice that Miller had been advised to quit working by Dr. Terry M. Himes. The trial court specifically provided:
The penalty to be assessed against the defendant EMC Insurance Companies is $20,670.00, representing a 50 percent penalty on 46 3/7 weeks of temporary total disability benefits at $265.00 per week and in addition the sum of $26.00 per week from April 27, 1995, to June 11, 1997, a period of 110 4/7 weeks, and a like sum for each additional week that compensation due and owing the plaintiff remains unpaid. The defendant is also to pay interest at the statutory rate for the same periods of time.
The trial court further ordered E.M.C. to pay Miller's attorney fees in the amount of $10,000 plus costs incurred in the litigation.
An application for review was filed by the Fund, and E.M.C. and Miller both cross-appealed. A review hearing was held before a review panel of the compensation court. The review panel affirmed the trial court's decision in all respects except for the award of penalties and interest, which was modified and reduced. The review panel found that the penalty was incorrectly calculated by the trial court. The review panel specifically found:
The correct penalty to be assessed against the defendant EMC is $9,093.29 through June 11, 1997, the date of trial. This total figure represents a 50 per cent waiting time penalty ($132.50 per week) for 46 3/7 weeks of temporary total disability from and including June 6, 1994, through April 26, 1995, or $6,151.79, a figure which EMC does not contest in its brief. In addition, the 50 per cent penalty is also owed for 111 weeks from and including April 27, 1995, through the date of trial of June 11, 1997, and such weekly penalty is $26.50 or a total of $2,941.50 through the date of trial.
The review panel further found that the $26.50-per-week waiting-time penalty would be ongoing from and after the date of trial up to the date at which past-due benefits payable pursuant to the trial court's award are paid in full. Finally, the review panel determined that its finding of error in the assessment of the penalty resulted in a reduction in the amount of the award and precluded an award of further attorney fees to Miller on review.
Miller appealed, and E.M.C. and the Fund cross-appealed.
Miller assigns, restated, that the review panel erred in (1) finding that the trial court's calculation and determination of the amount of penalties was in error; (2) finding that as a result of the reduction in the penalty, Miller was precluded from an award of further attorney fees on review; (3) affirming the trial court's finding that the opinion of the certified professional counselor, Alfred J. Marchisio, Jr., was not admissible because Miller failed to follow the procedures set forth in the rules of the compensation court; and (4) failing to assess penalties, interest, and attorney fees against E.M.C. and the Fund.
E.M.C., in its cross-appeal, assigns that the review panel erred in (1) failing to find that Miller, as a self-employed, sole proprietor, had failed to establish his entitlement to receive compensation benefits in accordance with Neb.Rev.Stat. § 48-115(4) (Reissue 1993); (2) affirming the trial court's finding that E.M.C. is to pay 20 percent of Miller's permanent and total disability benefits; (3) awarding Miller penalties, interest, and attorney fees; and (4) affirming the trial court's finding that E.M.C. is to pay for modifications made to Miller's home.
In its cross-appeal, the Fund assigns that the review panel erred in affirming the trial court's (1) award of permanent total disability benefits and (2) finding that the requirements of § 48-128 were met, thereby apportioning liability to the Fund.
Pursuant to Neb.Rev.Stat. § 48-185 (Supp.1999), an appellate court may modify, reverse, or set aside a 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. Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999); Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Frank v. A & L Insulation, supra; Starks v. Cornhusker Packing Co.,
254 Neb. 30, 573 N.W.2d 757 (1998). If the record contains evidence to substantiate the factual conclusions...
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