Spratt v. Crete Carrier Corp.
| Decision Date | 25 March 2022 |
| Docket Number | S-21-530. |
| Parties | James R. SPRATT, appellant, v. CRETE CARRIER CORPORATION, appellee. |
| Court | Nebraska Supreme Court |
Brynne Holsten Puhl and Emily T. Newcomb, Senior Certified Law Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel Law Firm, P.C., L.L.O.
Brenda S. Spilker, Lincoln, and Micah C. Hawker-Boehnke, of Baylor Evnen, L.L.P., for appellee.
After obtaining a workers’ compensation award granting medical rehabilitation services for his lumbar back, James R. Spratt sought modification to provide such services for his thoracic back. The compensation court refused—holding that it lacked statutory authority to do so and that even if the statute permitted modification, a principle of finality precluded that relief. Spratt appeals—relying now upon Neb. Rev. Stat. § 48-162.01(7) (Reissue 2021). Because the court erred in both respects, we reverse, and remand for further proceedings.
We divide the background section into three parts. First, we recount Spratt's back injury and his initial medical treatment. We then set forth the Nebraska Workers’ Compensation Court's proceedings leading to the original award of medical rehabilitation services for his lumbar back. Finally, we turn to the crux of the instant appeal—Spratt's request that the compensation court modify the original award to treat his thoracic back.
In November 2016, Spratt injured his back while working as a commercial truckdriver for Crete Carrier Corporation (Crete). Spratt reported severe pain and muscle spasms in his thoracic and lumbar back.
Spratt was initially diagnosed with a thoracic strain, prescribed medication, and referred to physical therapy. Spratt could not continue to work as a commercial truckdriver, because he could not drive for an extended period of time.
Spratt's back pain and spasms persisted for months after the injury, so he sought treatment from Dr. Michael Gilmore in May 2017. Gilmore diagnosed Spratt with spondylosis without myelopathy
or radiculopathy of the lumbosacral region and pain in the thoracic spine. Gilmore later modified Spratt's diagnosis to be lumbar facet capsulitis.
Crete requested that Spratt receive a second opinion by Dr. D. Kevin Donahoe. Upon examination, Donahoe diagnosed Spratt with a thoracic and lumbar strain
, which "should be [sic] resolved since date of injury."
Spratt filed a petition in April 2018 with the compensation court, seeking treatment for his injuries. The compensation court held a trial on Spratt's petition in May 2019.
At the trial, Spratt testified and the parties offered Spratt's medical records into evidence. Spratt detailed his medical treatment regarding his injury. Spratt explained that he was still suffering from back pain and spasms—years after his injury. Finally, Spratt confirmed that his symptoms still prevented him from being able to work.
From Spratt's medical records, the parties offered medical reports drafted by Gilmore and Donahoe. Both doctors diagnosed Spratt with a thoracic strain that had since resolved without any evidence of permanency. Donahoe offered no further discussion regarding Spratt's ongoing pain. However, Gilmore opined that Spratt's pain continued because of lumbar facet capsulitis
.
In June 2019, the compensation court awarded temporary benefits to Spratt in order for him to reach maximum medical improvement (MMI). Adopting portions of Gilmore's and Donahoe's reports, the compensation court found that Spratt suffered a temporary thoracic strain and that he exacerbated his preexisting lumbar facets. However, the compensation court concluded that Spratt's thoracic strain had resolved and that therefore, the only medical rehabilitation services that Spratt needed to reach MMI would be for treatment of his lumbar back injury. Spratt did not appeal from the original award.
In accordance with the original award, Gilmore treated Spratt's lumbar back. But 6 weeks after the issuance of the original award, Gilmore sought permission to treat Spratt's thoracic back pain and herniated thoracic disk. Crete refused to pay for the treatment, because it was not pursuant to the original award.
In November 2020, Gilmore concluded that Spratt had reached MMI for his lumbar back injury, but noted that Spratt still suffered from back pain. Gilmore opined that Spratt suffered a thoracic back injury during the original accident and that Spratt's lumbar back pain was being "generat[ed]" from his thoracic back.
Citing Gilmore's conclusion that Spratt had reached MMI, Crete moved for modification to close the open award for temporary benefits and ongoing medical benefits. Spratt responded by requesting the compensation court modify the original award so that he may receive thoracic back treatment.
Although Spratt "admit[ted]" at oral arguments that he did not bring a workers’ compensation statute authorizing his request for modification to the compensation court's attention, he argued that he did not do so, because he did not anticipate that the court would believe it lacked authority. On appeal, Crete does not dispute that § 48-162.01(7), as a source of statutory authority, is properly before us. In pertinent part, that statute states:
The compensation court or judge thereof may also modify a previous finding, order, award, or judgment relating to physical, medical, or vocational rehabilitation services as necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or as otherwise required in the interest of justice.1
At the modification hearing below, the parties first stipulated that Spratt had reached MMI in his lumbar back. Spratt then asserted that Gilmore made a mistake in the lumbar back diagnosis that he provided the compensation court. Spratt presented a letter from Gilmore dated February 2021 opining that Spratt suffered a thoracic back injury and needed corresponding treatment. Spratt also testified that he was still suffering from back pain and could not work.
The compensation court declined Spratt's request for modification and found that he had reached MMI "for his low [sic] back injury with no resulting permanent disability nor need for further medical treatment." However, the court did not reach the merits of Spratt's request for modification. Citing Dougherty v. Swift-Eckrich ,2 the compensation court concluded that § 48-162.01(7) did not provide it with the "power to modify, amend[,] or reopen" the original award. The court further determined that even if a statutory basis existed, Spratt was "foreclosed from re-litigating the issue concerning the nature and extent of his thoracic injury
."
Spratt filed a timely appeal and petitioned this court to bypass the Nebraska Court of Appeals. Of the grounds for bypass specified by statute,3 Spratt's petition asserted only the existence of a "novel legal question."4 Crete's response disputed that the appeal presented a novel legal question, but did not complain that § 48-162.01(7) was not raised below. On that basis, we granted bypass.
Spratt assigns, restated, that the compensation court erred in (1) finding that it did not have the statutory authority to modify the original award to treat his thoracic back, (2) finding that issue preclusion barred the modification, (3) applying "any preclusion doctrine," (4) not finding that Gilmore's misdiagnosis of his injury did not bar the modification, and (5) failing to apply the "unreasonable" standard set forth in Williams v. Dobberstein .5
Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2021), 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, 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.6
The meaning of a statute is a question of law, and an appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law.7
Here, our review is limited. No appeal was taken from the original award. Thus, unless the workers’ compensation statutes provide a basis for modification, Spratt cannot prevail.
While, as Spratt essentially conceded at oral argument, he did not specifically mention § 48-162.01(7) in his modification pleading or in the hearing below, the compensation court clearly understood that the question of the statutory basis for Spratt's requested relief was before it. Over several pages of a thoroughly written decision, the court discussed its perception that a statutory basis was lacking and the case of this court upon which it primarily relied. We will turn to that case later.
We have said that appellate courts do not consider arguments and theories raised for the first time on appeal.8 We have stated the same rule using a slightly different articulation: An appellate court will not consider an argument or theory that is raised for the first time on appeal.9 But we have also stated that when an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.10 This rationale focuses on the submission of an issue.
But here, the compensation court was presented with the issue of its statutory authority. Spratt could have provided greater assistance to the court by citing § 48-162.01(7). But the compensation court operates exclusively in the realm of workers’ compensation law. We do not view the absent...
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