Smith v. Mark Chrisman Trucking, Inc.

• Decision Date: 03 May 2013
• Docket Number: No. S–12–754.,S–12–754.
• Parties: William Jerry SMITH, appellant, v. MARK CHRISMAN TRUCKING, INC., appellee.
• Court: Nebraska Supreme Court

285 Neb. 826

829 N.W.2d 717

William Jerry SMITH, appellant,

v.MARK CHRISMAN TRUCKING, INC., appellee.

No. S–12–754.

Supreme Court of Nebraska.

May 3, 2013.

Syllabus by the Court

[285 Neb. 826]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. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

3. Statutes: Legislature: Intent. A legislative act operates only prospectively and not retrospectively unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed.

4. Statutes: Time. Statutes covering substantive matters in effect at the time of the transaction or event govern, not later enacted statutes.

5. Statutes: Time. Procedural amendments to statutes are ordinarily applicable to pending cases, while substantive amendments are not.

[285 Neb. 827]6. Statutes: Words and Phrases. A substantive right is one which creates a right or remedy that did not previously exist and which, but for the creation of the substantive right, would not entitle one to recover. A procedural amendment, on the other hand, simply changes the method by which an already existing right is exercised.Michael W. Meister, Scottsbluff, for appellant.

Darla S. Ideus, Lincoln and Robert B. Seybert, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MILLER–LERMAN, and CASSEL, JJ.

MILLER–LERMAN, J.

NATURE OF CASE

William Jerry Smith, appellant, suffered an accident arising out of and in the course of his employment on October 23, 2007. Smith filed this action in the Workers' Compensation Court on February 28, 2012, against his employer, Mark Chrisman Trucking, Inc., appellee, seeking relief under an amended version of Neb.Rev.Stat. § 48–121 (Reissue 2010). Section 48–121(3) was amended by 2007 Neb. Laws, L.B. 588, and Smith alleged that he was entitled to benefits calculated on the basis of the loss of earning capacity pursuant to this amendment. The Legislature specified that the operative date of the L.B. 588 amendment to § 48–121(3) was January 1, 2008. The Workers' Compensation Court concluded that the amendment to § 48–121(3) was substantive rather than procedural and that because Smith's accident and injuries occurred prior to the operative date of the amendment, Smith could not recover for a loss of earning capacity thereunder. Thus, the court granted Mark Chrisman Trucking's motion for summary judgment and overruled Smith's motion for summary judgment. Smith appeals. We agree with the Workers' Compensation Court's analysis of the amendment to § 48–121(3) and, accordingly, affirm.

STATEMENT OF FACTS

The parties in this case stipulated to the following facts:

1. [Smith] suffered an accident arising out of and in the course of his employment on October 23, 2007. Said accident caused a crush injury to [Smith's] left heel, injury to his right shoulder, and fractured ribs on the right. Sufficient notice was provided to [Mark Chrisman Trucking].

2. [Smith's] average weekly wage at the time of said accident was $540.60. As a result of the foregoing accident and injuries, [Smith] was temporarily totally disabled from and including October 24, 2007, through August 12, 2008, for which [Mark Chrisman Trucking] has paid [Smith] all indemnity benefits owed.

3. As a result of the foregoing accident and injuries, [Smith] was assigned a 1% impairment to the left lower extremity and an 11% permanent impairment to the right upper extremity and no further treatment was recommended. [Smith] was assigned no additional permanent impairment due to the fractured ribs and no further treatment is recommended for the fractured ribs.

4. [Mark Chrisman Trucking] has compensated [Smith] for all permanent impairment ratings set forth above pursuant to the schedule for scheduled member injuries set forth at Neb.Rev.Stat. § 48–121(3).

5. There is vocational evidence that [Smith's] loss of earning power due to his injuries to two scheduled members is 30%. [Mark Chrisman Trucking] disputes this.

6. All medical bills incurred by [Smith] due to the foregoing accident and injuries have been paid by [Mark Chrisman Trucking].

7. Following the accident and injuries referenced herein, [Smith] returned to work for a different employer as a truck driver and is not entitled to vocational rehabilitation services.

8. The sole issue for the court's determination is whether Laws 2007, LB 588 adding the third paragraph in subsection (3) of § 48–121, set forth below, applies to the accident occurring on October 23, 2007. The relevant portion of § 48–121(3) provides as follows: “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.”

9. If the court finds this statutory provision applies to the accident occurring October 23, 2007, a factual issue exists as to the extent of [Smith's] loss of earning power and whether he is otherwise entitled to compensation based upon a loss of earning power. If the court finds this statutory provision does not apply to the accident occurring on October 23, 2007, an Award may be entered pursuant to the terms of this stipulation.

The statutory language in paragraph 8 of the stipulation is a part of § 48–121(3) and was added to the statute by L.B. 588. In § 6 of L.B. 588, the Legislature provided that the operative date for the section of L.B. 588 at issue was January 1, 2008.

The language under consideration was first introduced as 2007 Neb. Laws, L.B. 77, and the Introducer's Statement of Intent reads:

LB 77 relates to the Nebraska Workers' Compensation Act and would change disability compensation provisions. Under current law, if a worker sustains an injury to multiple members, he or she is limited to the compensation provided in the schedule contained in section 48–121 of the Nebraska Workers' Compensation Act. LB 77 would give to the Nebraska Workers' Compensation Court the discretion to award a loss of earning capacity in an appropriate case involving loss of use of multiple members.

Committee on Business and Labor, 100th Leg., 1st Sess. (Feb. 12, 2007). L.B. 77 was later inserted into L.B. 588 and finally appears as part of § 48–121(3).

Other 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. 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.

On February 28, 2012, Smith filed this action in the Workers' Compensation Court against his employer, Mark Chrisman Trucking, alleging that he was entitled to benefits based on his loss of earning capacity under the amendment to § 48–121(3) created by L.B. 588. The Workers' Compensation Court filed its order on July 30, 2012, which granted Mark Chrisman Trucking's motion for summary judgment and denied Smith's motion for summary judgment, thus denying Smith a loss of earning capacity recovery. The court concluded that the amendment to § 48–121(3) was substantive and that such amendment created a “right or remedy that did not previously exist and which, but for the creation of the substantive right, would not entitle [Smith] to recover under this amendment to § 48–121(3).” Therefore, the court determined that because Smith's accident and injuries occurred prior to the operative date of the amendment to § 48–121(3), the amendment to § 48–121(3) did not apply to Smith.

Smith appeals.

ASSIGNMENT OF ERROR

Smith claims, restated, that the Workers' Compensation Court erred when it granted Mark Chrisman Trucking's motion for summary judgment, thus denying Smith the opportunity to seek benefits based upon a loss of earning capacity.

STANDARDS OF REVIEW

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. Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013).

With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Id.

ANALYSIS

At issue in this appeal is whether the portion of § 48–121(3) amended by L.B. 588 applies to this case. Smith claims that the Workers' Compensation Court erred when it granted Mark Chrisman Trucking's motion for summary judgment, thus denying Smith the opportunity to seek recovery based on a loss of earning capacity. The...