Sands v. School Dist. of City of Lincoln, Neb.

• Decision Date: 12 May 1998
• Docket Number: No. A-97-787,A-97-787
• Citation: 7 Neb.App. 28,581 N.W.2d 894
• Parties: Barbara SANDS, Appellee, v. SCHOOL DISTRICT OF The CITY OF LINCOLN, NEBRASKA, Appellant.
• Court: Nebraska Court of Appeals

Page 894

581 N.W.2d 894

7 Neb.App. 28

Barbara SANDS, Appellee, v. SCHOOL DISTRICT OF The CITY OF LINCOLN, NEBRASKA, Appellant.

No. A-97-787.

Court of Appeals of Nebraska.

May 12, 1998.

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 judgment, order, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. Workers' Compensation: Judgments: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

3. Workers' Compensation: Limitations of Actions. When payments of workers' compensation have been made in any case, the statute of limitations shall not take effect until the expiration of 2 years from the time of the making of the last payment.

4. Workers' Compensation: Limitations of Actions. When an employer furnishes medical, surgical, or hospital services to an employee, the payment constitutes payment of compensation within the meaning of the Nebraska Workers' Compensation Act for statute of limitations purposes.

5. Pleadings: Waiver. A party may invoke the language of his or her adversary at any time, and an admission in an operative pleading is a judicial admission which constitutes a waiver of all controversy so far as the adverse party desires to take advantage of it.

6. Pleadings: Proof: Words and Phrases. A variance is a difference between the pleadings and the proof.

7. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.

8. Pleadings: Evidence. A judicial admission is ordinarily binding, unless the court in its discretion relieves the admitting party from that consequence.

9. Pleadings: Evidence. An implied admission in a petition is not sufficiently formal to constitute a judicial admission, particularly when no such claim was made in the trial court.

10. Workers' Compensation. The compensation court is not bound by technical and formal rules of procedure.

11. Pleadings: Proof. No variance shall be deemed material unless it actually misled and prejudiced the adverse party.

12. Workers' Compensation. A workers' compensation award may be modified at any time after 6 months from the date of the agreement or award, following an application made by either party on the ground of increase or decrease of incapacity due solely to the injury.

13. Workers' Compensation: Expert Witnesses. The Workers' Compensation Court, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

14. Workers' Compensation: Expert Witnesses. The compensation court may determine which, if any, of the expert witnesses to believe.

15. Workers' Compensation: Expert Witnesses. A good faith self-contradiction of an expert witness presents a question of fact to be resolved by the compensation court.

John M. Guthery and Riko E. Bishop, of Perry, Guthery, Haase & Gessford, P.C., Lincoln, for appellant.

Robert L. Bals, of Harding, Shultz & Downs, Lincoln, for appellee.

HANNON, IRWIN, and MUES, JJ.

HANNON, Judge.

In this workers' compensation case, Barbara Sands seeks additional benefits for an injury that occurred in 1983 in the course of her employment with the School District of the City of Lincoln (the District). In 1987, the Nebraska Workers' Compensation Court awarded Sands, inter alia, disability benefits for a 10-percent permanent partial disability to her right leg. In the current proceedings, Sands seeks additional benefits on the basis that her right-leg incapacity has increased to 40 percent as a natural progression from the 1983 injury. The District maintains that Sands' increased incapacity was not due solely to the previous injury as required by Neb.Rev.Stat. § 48-141 (Reissue 1993) and that the claim was barred by the statute of limitations. The trial judge found that the claim was not barred by the statute of limitations because the District had made a payment for the treatment of Sands' disability within 2 years of the filing of the petition and that Sands' increased disability in her right knee was due solely to the 1983 injury. The trial court awarded Sands additional benefits, and the Workers' Compensation Court review panel affirmed. In this court, the District argues the trial court erred in finding that the statute of limitations did not bar recovery and in finding the increase in disability was due solely to the 1983 injury. Sands had alleged in her petition that several other accidents contributed to her increased incapacity. The District contends that by these allegations Sands has judicially admitted the disability was not caused solely by the 1983 incident and that the evidence does not support such a finding in any case. We conclude that Sands' claim is not barred by the statute of limitations and that the allegations in her petition did not amount to a judicial admission, and under applicable case law, we cannot find the trial judge was clearly wrong in finding Sands' incapacity was due solely to the 1983 accident.

I. BACKGROUND

In 1983, Sands was approximately 42 years of age and was working as an art teacher at Lincoln Northeast High School. Prior to 1983, Sands had injured her left knee in an automobile accident, but not her right knee. On December 19, 1983, Sands sustained an injury in the course of her employment when she tripped over a mop and struck both knees on the floor. As a result of this accident, Sands experienced medical problems with both knees.

On October 29, 1987, the Workers' Compensation Court entered an award for both injuries. The court found that on December 19, 1983, and February 24, 1987, Sands suffered work-related injuries. The court found that the 1987 injury caused Sands to incur medical bills but that she "failed to prove any disability either permanent or temporary" from the 1987 accident. The court also attributed some of the left-knee disability to her preexisting condition. The court awarded Sands, inter alia, benefits for a 5-percent permanent partial disability to the body as a whole, a 15-percent permanent partial disability to her left knee, and a 10-percent permanent partial disability to her right knee.

II. PLEADINGS

In her petition filed on January 24, 1996, Sands alleged that since the October 29, 1987, award, she had "experienced an aggravation of her knee injuries ... as a result of subsequent accidents arising out of and in the course of her employment...." Sands then listed the following subsequent accidents: (1) On November 1, 1990, a student kicked her, resulting in a fall; (2) on February 6, 1991, a student fell back on her, causing a hyper-extension of her right knee; (3) on April 5, 1993, she was rolling clay with a rolling pin, which resulted in a tearing sensation in the "cervical and innerthoracic muscular region" with tingling into her extremities; (4) on September 23, 1993, she fell on a slippery surface and aggravated problems in her knees, back, and neck; (5) on September 23, 1993, she was assaulted by a student, which aggravated the problems with her back and neck; (6) on March 24, 1994, she stepped off the upper part of a bleacher step and aggravated her right knee, lower back, and midback; (7) on May 3, 1995, she collided with a student and aggravated her knee and back; and (8) on November 17, 1995, she tripped and fell on concrete and injured both knees, her back, and her neck. Sands also alleged that in June 1990, she had a total right-knee replacement and ongoing treatment of both knees and her back. Such treatment had been paid for by the District within 2 years before the petition was filed. (Issues concerning the disability of the left knee and back are not part of this appeal. Therefore, these problems are mentioned only to the extent necessary to understand issues concerning the right knee.)

Sands further alleged that the District has paid her for the 20-percent permanent partial impairment of her right knee, that she has supplied the District with documentation evidencing a 40-percent permanent partial disability of her right knee, and that the District has refused to pay her additional compensation. Sands prays for an award of additional compensation for the uncompensated permanent partial disability.

In its answer, the District admits that Sands has claimed additional injuries as alleged in her petition and that it paid medical expenses for Sands within 2 years of the filing of the petition. The District alleges that it paid for additional permanent partial impairment, but not within 2 years of the filing of the petition. The District alleges the statute of limitations bars Sands' claim for increased impairment to her knees as a result of the 1983 injuries and prays that Sands' petition be dismissed.

Before trial, the parties stipulated the issues were (1) whether the District is responsible for paying for increased impairment to the right knee and, if so, the amount of compensation; and (2) whether the claim is barred by the statute of limitations or whether the statute was tolled by ongoing treatment.

III. SUMMARY OF EVIDENCE

At trial, the parties stipulated that the District paid the benefits awarded in 1987 for the 10-percent impairment to Sands' right knee and an additional "10% [impairment] of the right lower extremity on or about 5/25/93."

Sands testified about the December 19, 1983,...