Rodgers v. Neb. State Fair

• Decision Date: 09 May 2014
• Docket Number: No. S–13–651.,S–13–651.
• Parties: Charles Rodgers, appellant, v. Nebraska State Fair, appellee.
• Court: Nebraska Supreme Court

288 Neb. 92

846 N.W.2d 195

Charles Rodgers, appellant,

v.Nebraska State Fair, appellee.

No. S–13–651.

Supreme Court of Nebraska.

Filed May 9, 2014.

Appeal from the Workers' Compensation Court: Michael K. High, Judge. Reversed and remanded.

David M. Handley, of Dyer Law, P.C., L.L.O., for appellant.

Brynne E. Holsten, of Engles, Ketcham, Olson & Keith, P.C., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' 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.

2. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court, a higher appellate court reviews the trial judge's findings of fact, which will not be disturbed unless clearly wrong.

3. Workers' Compensation: Appeal and Error. Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own decisions.

4. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

5. Statutes: Appeal and Error. The language of a statute is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

6. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court will give statutory language its plain and ordinary meaning.

7. Statutes: Appeal and Error. When construing a statute, an appellate court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.

8. Statutes: Appeal and Error. The rules of statutory interpretation require an appellate court to give effect to the entire language of a statute, and to reconcile different provisions of the statutes so they are consistent, harmonious, and sensible.

9. Workers' Compensation. The Nebraska Workers' Compensation Act should be construed to accomplish its beneficent purposes.

Miller–Lerman, J.

NATURE OF CASE

Charles Rodgers, the appellant, suffered injuries to both of his knees in a work-related accident on September 7, 2009. In its award filed July 3, 2013, the Workers' Compensation Court concluded that in order to perform a loss of earning capacity calculation under the third paragraph of Neb.Rev.Stat. § 48–121(3) (Reissue 2010), there must be expert opinion of permanent physical restrictions as to each injured scheduled member. Despite Rodgers' request, the court declined to consider a potential loss of earning capacity award in the absence of such proof as to the left knee and therefore limited its award to scheduled member benefits. Rodgers appeals. We conclude that the compensation court erred as a matter of law when it concluded that the absence of expert opinion of permanent physical restrictions as to the left knee precluded a loss of earning capacity calculation under the third paragraph of § 48–121(3). We reverse, and remand the cause for consideration consistent with our opinion.

STATEMENT OF FACTS

This case stems from a work-related accident that occurred on September 7, 2009, in which Rodgers suffered injuries to both of his knees. The parties stipulated to certain facts, described and adopted by the court as follows:

1. On September 7, 2009, plaintiff, ... Rodgers, injured his knees arising out of and in the scope and course of his employment with the defendant, Nebraska State Fair.

2. Timely notice of the injury was given to the employer.

3. Venue is proper in the Nebraska Workers' Compensation Court.

4. At the time of [Rodgers'] injury, [Rodgers] was earning an average weekly wage of $480.36.

5. [Rodgers] has reached maximum medical improvement for his left knee on August 5, 2010, and was assigned a 2 percent impairment to his left lower extremity by Dr. Lawson.

6. [Rodgers] has reached maximum medical improvement for his right knee on October 25, 2011, as indicated by both Dr. Donovan and Dr. O'Neil and was assigned a 40 percent impairment to his right lower extremity by Dr. O'Neil.

7. The parties agree that all related medical and hospital expenses previously incurred by [Rodgers] have been or are in the process of being paid by the [Nebraska State Fair] pursuant to the Fee Schedule.

8. The parties agree that all future related medical [expenses] as defined by Neb.Rev.Stat. § 48–120 for [Rodgers'] right knee will be paid by the [Nebraska State Fair] pursuant to the Fee Schedule.

9. The parties agree that there are no penalties due.

Dr. John C. Yeakley initially treated Rodgers for his knee injuries. Dr. Yeakley performed surgery on the left knee on May 3, 2010. After Dr. Yeakley retired, Dr. Keith W. Lawson assumed Rodgers' care. In Dr. Lawson's report dated December 12, 2011, he stated that Rodgers reached maximum medical improvement for his left knee on August 5, 2010. Dr. Lawson opined that Rodgers had sustained a 2–percent permanent partial impairment to his left knee but assigned no permanent physical restrictions to the left knee.

Dr. Yeakley performed surgery on the right knee on February 1, 2010. Dr. Yeakley performed a second surgery on the right knee on November 29. Following the second surgery on the right knee, Rodgers was diagnosed with chronic regional pain syndrome in the right knee.

At the request of the Nebraska State Fair, Rodgers was examined by Dr. Michael T. O'Neil for an independent medical evaluation. According to Dr. O'Neil's September 19, 2012, report, Rodgers had reached maximum medical improvement for his right knee on October 25, 2011. Dr. O'Neil assigned a 40–percent permanent partial impairment rating for the right knee. As to permanent physical restrictions, Dr. O'Neil noted “no prolonged walking or standing as well as [no] climbing, squatting and kneeling.”

On January 7, 2013, the vocational counselor agreed upon by the parties provided a loss of earning capacity analysis. In his report, the counselor stated that he had interviewed Rodgers and reviewed Rodgers' medical records regarding his knee injuries. The counselor stated: “I have been asked to determine ... Rodgers' loss of earning capacity per the parties [sic] e-mail ... that states ‘the entitlement to [loss of earning capacity] will be a matter of fact determined by the trial judge.’ ” The vocational counselor determined that Rodgers' loss of earning capacity “would be approximately 65%.”

Rodgers filed his petition, including a request for loss of earning compensation in the Workers' Compensation Court on October 9, 2012. The Nebraska State Fair filed its answer on November 21. A hearing was held before the Workers' Compensation Court on June 25, 2013. Rodgers offered and the court received five exhibits, and the Nebraska State Fair offered and the court received six exhibits. The exhibits consisted primarily of Rodgers' medical expenses, records, and reports. Rodgers was the only witness.

On July 3, 2013, the Workers' Compensation Court filed an award in which it concluded that it was unable to perform a loss of earning power calculation under the third paragraph of § 48–121(3) in the absence of expert proof of permanent restrictions relating to the left knee and therefore limited its consideration of the evidence and made an award based on scheduled member benefits. Referring to the provisions in the third paragraph of § 48–121(3), the court stated that “the sole issue in this case is whether or not [the third paragraph] from Neb.Rev.Stat. § 48–121[ (3) ] applies so [Rodgers] is entitled to a loss of earning power rather than the payment schedule for scheduled member disability.”

The statutory language to which the court referred and which is central to this appeal is found in the third paragraph of § 48–121(3). This paragraph was added in 2007, and provides in its entirety:

If, in the compensation court's discretion, compensation benefits payable for a loss or loss of use of more than one member or parts of more than one member set forth in this subdivision, resulting from the same accident or illness, do not adequately compensate the employee for such loss or loss of use and such loss or loss of use results in at least a thirty percent loss of earning capacity, the compensation court shall, upon request of the employee, determine the employee's loss of earning capacity consistent with the process for such determination under subdivision (1) or (2) of this section, and in such a case the employee shall not be entitled to compensation under this subdivision.

We have previously considered this amendatory language and noted that

[o]ther than the amendment at issue, the portions of § 48–121(3) then and now provide for compensation based on designated amounts for scheduled member injuries, but no loss of earning capacity [except as may result from the second paragraph of § 48–121(3) ]. The amendment provides for the loss of earning capacity at the court's discretion where there is a loss or loss of use of more than one member which results in at least a 30–percent loss of earning capacity.

Smith v. Mark Chrisman Trucking, 285 Neb. 826, 830, 829 N.W.2d 717, 720 (2013).

In its award, the Workers' Compensation Court endeavored to interpret the new language of § 48–121(3). The court focused on the introductory sentence of the new third paragraph, which...