Miller v. Reg'l West Med. Ctr. & Cont'l Ins. Co.
| Decision Date | 12 June 2012 |
| Docket Number | No. A-11-923,A-11-923 |
| Parties | MELISSA L. MILLER, APPELLANT, v. REGIONAL WEST MEDICAL CENTER AND CONTINENTAL INSURANCE CO., APPELLEES. |
| Court | Court of Appeals of Nebraska |
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the Workers' Compensation Court. Affirmed.
Robert M. Brenner, of Robert M. Brenner Law Office, for appellant.
L. Tyler Laflin and Justin K. Burroughs, of Engles, Ketcham, Olson & Keith, P.C., for appellees.
A single judge of the Nebraska Workers' Compensation Court dismissed Melissa L. Miller's request for the appointment of an independent medical examiner, concluding that she previously litigated her claim for a right shoulder injury and was denied. A majority of a review panel agreed with the single judge's determination, but reversed, and remanded for a further hearing on whether Miller's compensable injuries caused her present shoulder injury. Because (1) the 1995 award did not find a compensable injury to Miller's shoulder, (2) the review panel did not subject Miller to a heightened burden of proof, (3) a prior decision of the Nebraska Supreme Court did not reach the merits of Miller's petition, and (4) the orders below provided a basis for meaningful appellate review, we affirm the order of the review panel.
On July 12, 1990, a 6-pound bundle of sacks fell from a shelf and struck Miller on the head, neck, and right shoulder while she was working at Regional West Medical Center (RWMC). Miller filed a petition for workers' compensation benefits based on this accident, alleging that she sustained injuries to her "upper back, head, and right shoulder" which caused her "to incur medical expenses, loss of employment, temporary and permanent disability to her body to include, but not limited to, permanent partial disability to her body as a whole and/or to her right shoulder." RWMC was named as a defendant along with Continental Insurance Company (Continental), RWMC's workers' compensation insurer at the time of the accident.
On December 11, 1995, a single judge of the compensation court issued an award to Miller. The court found that Miller "suffered injuries to her neck and head (headaches) as a result of an accident arising out of and in the course of her employment by [RWMC] when a bundle of sacks fell off a top shelf, striking [her] on the head, neck[,] and right shoulder"; that she was temporarily totally disabled for 7 5/7 weeks; that she reached maximum medical improvement (MMI) on June 29, 1994; and that she sustained a 5-percent loss of earning power from and after June 30. The court ordered RWMC and Continental to pay certain medical and hospital expenses incurred by Miller as a result of the injury, temporary total disability benefits of $112 per week for 7 5/7 weeks, benefits of $5.60 per week for 292 2/7 weeks to compensate for the loss of earning power, additional compensation of $56 per week for 7 5/7 weeks to account for "waiting time," and $1,000 in attorney fees. The court denied Miller's request for vocational rehabilitation services and treatment at a pain management center, but stated that RWMC and Continental "should continue to provide and care for such future medical and hospital care and treatment as may be reasonably necessary as a result of said accident and injury." A few weeks later, the court entered an order nunc pro tunc to address deposition costs and interest. Otherwise, the case sat dormant until 2007, during which time Miller continued to receive treatment for neck and shoulder pain resulting from the injury.
In 2007, Miller filed a request for the appointment of an independent medical examiner to assess whether surgery on her right shoulder was reasonable and necessary. Finding that the 1995 award did not include a right shoulder injury, a single judge of the compensation court denied the request. Miller appealed to a review panel of the compensation court, which determined that the trial court's order was not final and dismissed her application for review. On further appeal, the Nebraska Supreme Court affirmed the review panel's decision. See Miller v. Regional West Med. Ctr., 278 Neb. 676, 772 N.W.2d 872 (2009). The Supreme Court rejected Miller's argument that the denial of her request for appointment of an independent medical examiner affected a substantial right because it precluded her from filing for benefits pursuant to Neb. Rev. Stat. § 48-173 (Reissue 2010) ( that "[n]o petition may be filed with the compensation court solely on the issue of reasonableness and necessity of medical treatment unless a medical finding on such issue has been rendered by an independent medical examiner . . ."). Rather, the court held that "the requested independent medical examination is not a prerequisite to the filing of a petition under § 48-173 seeking benefits for the proposed shoulder surgery," that "[t]he order of the single judge denying her request for an independent medical examination does not foreclose Miller's ability to file a petition pursuant to § 48-173," and thatconsequently, "the denial of the request did not affect a substantial right and is therefore not a final, appealable order." Miller v. Regional West Med. Ctr., 278 Neb. at 682, 772 N.W.2d at 877.
In July 2010, Miller again filed a petition requesting the appointment of an independent medical examiner to assess whether her right shoulder condition was associated with the 1990 injury and whether surgery was necessary. She argued that the 1995 award "allows for the recovery sought" and that "the medical treatment should be ordered and paid for by [RWMC and Continental]." In their initial answer and later in a motion for summary judgment, RWMC and Continental alleged that Miller's petition was barred by res judicata.
In an order filed March 23, 2011, a single judge of the compensation court sustained RWMC and Continental's motion for summary judgment, holding that because Miller "previously litigated her claim for a right shoulder injury and was denied," her "present claim regarding a rotator cuff injury to her right shoulder, medical treatment therefore or the appointment of an independent medical examiner to address causality of the right shoulder injury to the accident of July 12, 1990, is barred by the doctrine of res judicata."
Miller subsequently filed an application for review by a review panel of the compensation court. In an order filed September 26, 2011, a majority of the review panel found that the trial court was "correct that [Miller] cannot relitigate now whether the accident of July 12, 1990, produced an injury to her other than her neck and head (headaches)." But because the review panel also "believe[d] that [Miller] is entitled to produce evidence that her neck and/or head injury caused her present shoulder injury as she has pled," it reversed, and remanded the matter for a further hearing. One judge concurred in part and in part dissented from the decision.
Miller timely appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
Miller alleges, restated and reordered, that the review panel erred (1) in holding that the right shoulder injury was determined in the 1995 award, (2) in placing an additional burden of proof upon her to succeed on her request for the appointment of an independent medical examiner, (3) in directing that she is only entitled to produce evidence that her present shoulder condition is causally a consequence of the neck and head injury in 1990, (4) in misapplying the rule of law pertaining to judgments, (5) in failing to properly apply the legal findings or holdings of the Nebraska Supreme Court opinion previously entered in this case, and (6) in failing to provide meaningful rulings or judgment for appellate review under Workers' Comp. Ct. R. of Proc. 11(A) (2011).
A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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. Neb. Rev. Stat. § 48-185 (Supp. 2011).
In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012). With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.
Miller first assigns error to the review panel's finding that the 1995 award determined that the accident in 1990 did not result in injury to her right shoulder. The meaning of a judgment is determined as a matter of law. See Holmes v. Chief Indus., 16 Neb. App. 589, 747 N.W.2d 24 (2008). We thus review this finding of the review panel de novo. See Lovelace v. City of Lincoln, supra. Upon our de novo review, we agree that the 1995 award considered the possibility of a compensable injury to Miller's right shoulder and found no such injury.
As a general matter, where an order is clearly intended to serve as a final adjudication of the rights and liabilities of the parties, the silence of the order on requests for relief not spoken to can be construed as a denial of those...
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