SCHWAN'S SALES ENTERPRISES, INC. v. Hitz, S-01-494.
| Decision Date | 01 March 2002 |
| Docket Number | No. S-01-494.,S-01-494. |
| Citation | 640 N.W.2d 15,263 Neb. 327 |
| Parties | SCHWAN'S SALES ENTERPRISES, INC., and Liberty Mutual Insurance Company, Appellants, v. Robert J. HITZ and State of Nebraska, Second Injury Fund, Appellees. |
| Court | Nebraska Supreme Court |
Thomas D. Wulff, of Welch, White & Wulff, Omaha, for appellants.
Don Stenberg, Attorney General, and Hobert B. Rupe for appellee State of Nebraska, Second Injury Fund.
Schwan's Sales Enterprises, Inc. (Schwan's), and Liberty Mutual Insurance Company (Liberty Mutual) appeal from a decision of a review panel of the Nebraska Workers' Compensation Court determining that the State of Nebraska, Second Injury Fund, was not liable to Robert J. Hitz, who was injured in the course of his employment with Schwan's. The trial judge determined that the Second Injury Fund was liable because Hitz had an amputation below the right knee at the time he was hired by Schwan's and Schwan's had actual knowledge of the amputation. The review panel reversed because Schwan's did not make a written record of the amputation in accordance with Neb. Rev.Stat. § 48 128(2) (Reissue 1993), and the amputation was not obvious. Because it is undisputed that Schwan's had actual knowledge of the amputation, we reverse the review panel's order determining that the Second Injury Fund was not liable.
The facts of this case are undisputed. In 1990, Hitz' right leg was amputated below the knee, and he has worn a prosthesis since that time. In 1995, Hitz applied to Schwan's for a position as a sales route driver. Hitz initially interviewed with Byron R. Lane, a sales manager. Lane observed that Hitz walked with a slight limp, and Hitz explained to him that his leg was amputated below the knee. Lane asked Hitz if he could physically perform the job, and Hitz assured him that he could. Lane also checked to see if Hitz' condition would prevent him from driving under federal Department of Transportation guidelines and found that it did not. In his deposition, Lane stated that he never actually observed Hitz' prosthesis.
After the initial interview, Lane and Robert J. Ludewig, a division manager for Schwan's, met with Hitz at Hitz' home. In his deposition, Ludewig stated that at the time of the meeting, he was aware that Hitz wore a prosthetic limb. The record indicates that although he was aware of it, Ludewig did not actually see the prosthesis. Hitz was hired by Schwan's in November 1995. The record shows that Schwan's did not make a written record in accordance with § 48-128(2), documenting that Hitz had a below-the-knee amputation.
On December 8, 1995, Hitz was injured when he fell while adding oil to the truck that he drove for Schwan's. As a result of the fall, he fractured his right femur and several surgeries were performed on his right leg. Hitz was later diagnosed with reflex sympathetic dystrophy. In June 1998, Dr. Michael H. McGuire, an orthopedic surgeon who treated Hitz, stated that it was unlikely that Hitz would ever regain functional use of his right lower extremity. In addition, he stated that Hitz had reached maximum medical improvement and that he had a disorder that produced a 40 percent whole person impairment and a 100-percent lower extremity impairment. In November 1998, Dr. Michael T. O'Neil, another orthopedic surgeon who treated Hitz, stated that Hitz was 100 percent permanently disabled. O'Neil stated that Hitz would not have sustained the type of fracture that he did if he had not had a below-the-knee amputation at the time he fell. Hitz has not worked since the day of his accident.
Schwan's and Liberty Mutual brought suit in the Workers' Compensation Court against Hitz and the Second Injury Fund seeking a determination of the rights and liabilities of the parties. The trial judge concluded that Schwan's and Liberty Mutual were liable for all of Hitz' temporary total disability payments and his permanent partial disability payments as a result of his member impairment. The trial judge determined that the Second Injury Fund was liable for all of Hitz' permanent partial disability payments, and the Second Injury Fund sought review. In a two-to-one decision, the review panel reversed, determining that the Second Injury Fund was not liable for any of Hitz' workers' compensation payments because Schwan's did not make a written record to document that Hitz was an amputee. Applying this court's decision in Akins v. Happy Hour, Inc., 209 Neb. 236, 306 N.W.2d 914 (1981), the review panel concluded that actual knowledge of Hitz' amputation could not support liability on the part of the Second Injury Fund because the amputation was not "obvious." Schwan's and Liberty Mutual appeal.
Schwan's and Liberty Mutual assign, rephrased, that the review panel erred in reversing the trial judge's findings regarding the liability of the Second Injury Fund.
An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment,...
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