Sheldon-Zimbelman v. Bryan Memorial Hosp.

• Decision Date: 14 January 2000
• Docket Number: No. S-99-314.,S-99-314.
• Citation: 258 Neb. 568,604 N.W.2d 396
• Parties: Lita SHELDON-ZIMBELMAN, appellant, v. BRYAN MEMORIAL HOSPITAL, appellee.
• Court: Nebraska Supreme Court

604 N.W.2d 396

258 Neb. 568

Lita SHELDON-ZIMBELMAN, appellant, v. BRYAN MEMORIAL HOSPITAL, appellee.

No. S-99-314.

Supreme Court of Nebraska.

January 14, 2000.

Laura A. Lowe, of Cobb & Hallinan, P.C., Lincoln, for appellant.

Walter E. Zink II and Darla S. Ideus, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Lita Sheldon-Zimbelman appeals from a decision by a three-judge review panel of the Nebraska Workers' Compensation Court, which affirmed in part, and in part reversed and remanded with directions the decision of a single Workers' Compensation Court judge. For the reasons stated below, we affirm the decision of the review panel.

STATEMENT OF FACTS

On January 27, 1992, while employed by Bryan Memorial Hospital (Bryan) as a micrographics sorter, Sheldon-Zimbelman suffered a work-related injury to her back, which injury arose out of and in the course of her employment. On June 22, 1993, Sheldon-Zimbelman filed a petition with the Workers' Compensation Court seeking workers' compensation benefits. On March 7, 1994, following the original hearing, a single judge entered an award in favor of Sheldon-Zimbelman (original award). Pursuant to the original award, the single judge therein found, inter alia, that Sheldon-Zimbelman had "suffered injuries to her back as a result of an accident arising out of and in the course of her employment." The single judge in the original award determined that Sheldon-Zimbelman had been either temporarily totally or temporarily partially disabled on various dates enumerated in the award. The single judge in the original award further found that as a result of the accident, Sheldon-Zimbelman had sustained permanent partial disability in the form of a 20-percent loss of earning capacity.

At the time of the accident, Sheldon-Zimbelman was receiving an average weekly wage of $358.53. Between the date of the accident and the date of the original award, Bryan had paid Sheldon-Zimbelman varying amounts of benefits. The single judge found Sheldon-Zimbelman was entitled to receive $239.02 per week for 34 6/7 weeks for temporary total disability (TTD) benefits, and the single judge credited Bryan for having already paid this amount. The single judge also awarded Sheldon-Zimbelman temporary partial disability (TPD) benefits in the amount of $3,340.97, computed at varying rates for 17 weeks. Bryan received a credit for previously paying this amount. The award further ordered Bryan to pay Sheldon-Zimbelman $119.51 per week for 12 2/7 weeks for additional TPD benefits, and $47.80 per week for 236 6/7 weeks for permanent partial disability (PPD) loss of earning benefits.

Thus, consistent with Neb.Rev.Stat. § 48-121(2) (Reissue 1998), the single judge in the original award credited the weeks Sheldon-Zimbelman had received TTD and TPD against her statutory entitlement to 300 weeks for PPD loss of earning benefits. The single judge further ruled that Bryan was entitled to a credit for having already paid to Sheldon-Zimbelman all of the TTD benefits, as well as $3,340.97 of the TPD benefits awarded.

Finally, the single judge found that Sheldon-Zimbelman was entitled to vocational rehabilitation and ordered that she be provided vocational rehabilitation in the form of a combined 4-year bachelor's degree program in human services at Southeast Community College and the College of St. Mary. On the single judge's own motion, the original award was modified to order Bryan to pay Sheldon-Zimbelman "temporary disability" while she was participating in vocational rehabilitation.

Sheldon-Zimbelman completed her bachelor's degree program on or about May 11, 1996. While she was enrolled in the program, Bryan paid her temporary benefits in the amount of $239.02 per week for a total of 149 weeks. After she completed the vocational rehabilitation program, Bryan paid Sheldon-Zimbelman 59 2/7 weeks for PPD loss of earning benefits in the amount of $47.80 per week. On or about November 25, 1997, counsel for Bryan notified Sheldon-Zimbelman's counsel that Bryan was terminating the payment of Sheldon-Zimbelman's indemnity benefits. In a letter dated May 29, 1998, Bryan's counsel advised Sheldon-Zimbelman's counsel that it had ceased paying the benefits because Bryan had paid Sheldon-Zimbelman more than 300 weeks of benefits, apparently relying upon § 48-121(2).

On January 21, 1998, Sheldon-Zimbelman filed a petition (second petition) bearing the same case number as the original petition. It is the outcome of the second petition which gives rise to this appeal. In her second petition, Sheldon-Zimbelman challenged Bryan's determination that it had paid her all of the indemnity benefits to which she was statutorily entitled. Specifically, Sheldon-Zimbelman challenged Bryan's claim that it was entitled to include in the 300-week calculation of total benefits the number of weeks it had paid her "temporary disability" benefits while she was participating in vocational rehabilitation. Sheldon-Zimbelman alleged that she was entitled to the entirety of the PPD loss of earning benefits awarded in the original award and that Bryan's "setoff" was contrary to Nebraska law and the workers' compensation statutes.

On August 25, 1998, Sheldon-Zimbelman's second petition came on for hearing before a single judge of the Workers' Compensation Court. The evidence presented at the hearing showed that Bryan had paid Sheldon-Zimbelman 308 weeks of indemnity benefits, including 149 weeks of benefits paid while Sheldon-Zimbelman was participating in her vocational rehabilitation program. Sheldon-Zimbelman presented uncontroverted evidence that as a result of her injury, she had been unable to work for various periods of time between October 22, 1996, and December 3, 1997. Evidence was admitted to show that during the majority of that time period, Bryan had paid Sheldon-Zimbelman PPD loss of earning benefits in accordance with the original award. Evidence was also admitted to show that as a result of her workers' compensation injury, Sheldon-Zimbelman was unable to work beginning on August 5, 1998, and continuing through the date of the hearing on August 25.

In a written order filed September 14, 1998, the single judge found, inter alia, that Sheldon-Zimbelman was totally disabled on various dates between October 22, 1996, and December 3, 1997, and ordered Bryan to pay TTD benefits instead of the PPD loss of earning capacity benefits Bryan had paid for those dates. The single judge also found that Sheldon-Zimbelman was entitled to receive TTD benefits beginning on August 5, 1998, and continuing on into the future "for so long thereafter as [Sheldon-Zimbelman] shall remain temporarily totally disabled." The single judge concluded that although this award of additional TTD benefits would result in Bryan's paying more than 300 weeks of total benefits, there was no statutory limitation on the number of weeks TTD benefits could be paid. The single judge stated that in view of the resolution of the foregoing matters, the judge would "decline" to address Bryan's claim that it should be credited for benefits it had paid to Sheldon-Zimbelman while she was participating in vocational rehabilitation.

Both parties appealed the single judge's decision to the review panel. Their combined appeals came up for review hearing on February 23, 1999.

In an order dated March 10, 1999, the review panel affirmed the single judge's legal conclusion that there was no statutory prohibition against paying in excess of 300 weeks in indemnity benefits to a workers' compensation claimant when the claimant remained temporarily totally disabled. The review panel concluded, however, that the single judge's award of TTD benefits for the dates between October 1996 and December 1997 was an improper award of retroactive benefits and was in error as a matter of law, based on this court's ruling in Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998). In Starks, we held, inter alia, that a party is not entitled to the modification of a prior workers' compensation award to the extent the modification predates the date of filing the petition to modify. The review panel found that the various dates between October 1996 and December 1997 for which the single judge had ordered the retroactive payment of TTD benefits, as opposed to PPD benefits, preceded the January 21, 1998, filing of Sheldon-Zimbelman's second petition, and accordingly, it reversed the single judge's award of these retroactive TTD benefits.

The review panel further ruled that the single judge erred in failing to address the issue of Bryan's claimed credit for the "temporary disability" benefits paid to Sheldon-Zimbelman while she was participating in vocational rehabilitation. The review panel determined that this was a question of law involving the interpretation of a statute and that accordingly, it had the authority to resolve this issue on appeal independent of any decision by the single judge.

Treating the benefits Bryan had paid to Sheldon-Zimbelman while she was undergoing vocational rehabilitation as "temporary total disability," the review panel concluded that Bryan had paid Sheldon-Zimbelman partial disability subsequent to paying total disability and that pursuant to § 48-121(2), Bryan was entitled to a credit against the 300-week statutory limitation on the payment of indemnity benefits for the weeks of TTD benefits which it had paid Sheldon-Zimbelman while she was participating in vocational rehabilitation. The review panel remanded the case to the single judge and ordered the single judge to make the necessary specific findings and calculations to reflect Bryan's credit for the 149 weeks it had paid Sheldon-Zimbelman TTD benefits while she was participating in vocational rehabilitation prior to receipt of the PPD loss of earning...