Stansbury v. HEP, Inc.

• Decision Date: 18 April 1995
• Docket Number: No. A-94-813,A-94-813
• Citation: 3 Neb.App. 712,530 N.W.2d 284
• Parties: Carl STANSBURY, Appellant, v. HEP, INC., Appellee.
• Court: Nebraska Court of Appeals

Page 284

530 N.W.2d 284

3 Neb.App. 712

Carl STANSBURY, Appellant, v. HEP, INC., Appellee.

No. A-94-813.

Court of Appeals of Nebraska.

April 18, 1995.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon 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. In determining whether to affirm, modify, reverse, or set aside the judgment of the review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing.

3. Workers' Compensation: Appeal and Error. The findings of fact made by a Workers' Compensation Court trial judge are not to be disturbed upon appeal to a Workers' Compensation Court review panel unless they are clearly wrong, and if the record contains evidence to substantiate the factual conclusions reached by the trial judge, the review panel shall not substitute its view of the facts for that of the trial judge.

4. 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 right, on the other hand, is considered to simply be the method by which an already existing right is exercised.

Gordon Peterson, of Orton, Brown, Thomas & Peterson, Lincoln, for appellant.

Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz, Omaha, for appellee.

SIEVERS, C.J., MILLER-LERMAN, J., and HOWARD, District Judge, Retired.

HOWARD, District Judge, Retired.

Carl Stansbury appeals from the Workers' Compensation Court review panel's decision upholding the order of the trial court which awarded 12 weeks of vocational rehabilitation; awarded no additional temporary total disability benefits beyond those already paid by HEP, Inc.; and found that Stansbury had suffered a 10-percent loss of earning capacity. Stansbury and HEP, Inc., entered into a partial settlement agreement before trial, in which the parties stipulated that Stansbury had a compensable injury; stipulated that they would compromise all claims for benefits which accrued through August 27, 1992, for a certain sum; and agreed that HEP, Inc., would pay all medical expenses incurred through August 27. The issues of whether Stansbury was entitled to additional benefits and medical expenses beyond August 27 and whether he was entitled to vocational rehabilitation were not settled. Therefore, Stansbury filed a petition, and a hearing was held on the issues. For the reasons stated below, we affirm in part and reverse and remand in part.

STATEMENT OF FACTS

Stansbury was employed by HEP, Inc., as an apprentice plumber on May 9, 1991, when he injured his back. Stansbury filed a claim for workers' compensation benefits, which was dismissed on May 28, 1992, after a first hearing was held before a single judge of the court. In lieu of a rehearing, the parties agreed to enter into a compromise settlement of all of Stansbury's claims which accrued up to the date of the scheduled rehearing, August 27, 1992. The parties stipulated in the agreement that Stansbury had suffered a compensable injury arising out of and in the course of his employment with HEP, Inc., and that the accident occurred on May 9, 1991. In the agreement, HEP, Inc., agreed to pay all medical expenses Stansbury had incurred from May 9, 1991, to August 27, 1992. In addition, HEP, Inc., agreed to pay 4 weeks of temporary total disability benefits for the period of May 20 up to and including June 16, 1991. According to the agreement, after June 16, Stansbury had obtained part-time employment with Thornhill Amusements in Texas. The agreement provided that payment of the 4 weeks of benefits was in settlement of all Stansbury's claims for temporary total or temporary partial benefits which had accrued from the time of the accident through August 27, 1992.

The settlement agreement also provided that issues and claims for future medical bills, compensation benefits, and entitlement to vocational rehabilitation were unsettled and therefore open for further determination. On September 1, 1993, Stansbury filed a supplemental petition, alleging that he had reached maximum medical improvement and claiming that he was entitled to additional temporary total and partial disability benefits permanent partial disability benefits, and vocational rehabilitation.

In the evidence before us is an October 28, 1992, report from Dr. Craig A. Banta, Stansbury's attending physician, which states that Stansbury sought treatment from Dr. Banta because he was still having back pain after the accident. Dr. Banta's diagnosis was that Stansbury sustained a lumbar sprain injury with persistent muscle spasm and myofacial syndrome. Dr. Banta continued to see Stansbury and treat his back pain until December 1, 1992, when the doctor released Stansbury to light-duty work because his pain had become more manageable, but Dr. Banta recommended that Stansbury still undergo a CT scan of the spine. A scan performed on December 15 revealed herniation at both the L4-5 and L5-S1 levels. In a letter to HEP, Inc.'s insurer, Dr. Banta stated:

Patient should not perform manual labor with frequent lifting, bending or stooping. The patient is completely employable at a light duty job. The patient does have history of background in electronics and I would feel that he would be able to perform this activity without difficulty assuming that recurrent and heavy lifting is not involved.

On February 18, 1993, Dr. Banta completed a questionnaire drawn up by Stansbury's attorney, in which Dr. Banta stated that he was capable of evaluating Stansbury's permanent impairment and that he believed Stansbury suffered a 5-percent permanent impairment of the whole body.

Also in evidence is a report from Dean N. Venter, a vocational evaluator. Venter stated that according to Stansbury's employment history, Stansbury's experience involved heavy work, including frequent lifting of up to 50 pounds and occasional lifting of up to 100 pounds. Venter noted that according to Dr. Banta, Stansbury should not perform manual labor and is completely employable at a light-duty job. In Venter's opinion, if Stansbury were limited to medium work, his loss of earning capacity would be approximately 15 to 20 percent, and if Stansbury were limited to light duty, the loss of earning capacity would be approximately 25 to 30 percent. However, according to a report by Gina Jones, another vocational evaluator, Stansbury was capable of performing moderately heavy work.

On December 23, 1993, Venter formulated a vocational rehabilitation plan which he recommended for Stansbury because it would allow Stansbury to perform electrical repair work, and such work would be light duty. Such work, Venter stated, would reduce Stansbury's loss of earning capacity. Venter's recommended plan stated that Stansbury should obtain an associate degree in electrical technology at Southeast Community College, which would require 2 years of education.

At the hearing, Stansbury testified that after his back injury, he worked for Thornhill Amusements from June to December 1991 for 2 hours a day at $4.25 per hour. Stansbury's job with HEP, Inc., required him to work 40 hours per week, for which Stansbury earned $6 per hour, or $240 per week. Stansbury stated that he wanted to work more hours at Thornhill, but business was slow and Thornhill did not need him to work full time. In 1992, Stansbury worked in June and July for a furniture store, which paid commission. Stansbury earned about $1,000 to $1,100 per month. Stansbury was then laid off, and he received unemployment compensation. On cross-examination, Stansbury admitted that the employment market in Texas was much tighter than in Nebraska and that Texas had an unemployment rate of about 15 percent. Stansbury continued to look for work from August 1992 until more than a year later. In October 1993, Stansbury got a job installing water softeners. Stansbury works approximately 2 days per week, earning about $150 to $200 per day, or $300 to $400 per week. Stansbury testified that his back still causes him problems on his current job installing water softeners and that he suffers from muscle spasms, cramps, and numbness. However, Stansbury admitted that he has not missed any work as a water softener installer because of his symptoms. Stansbury testified that his current job requires him to occasionally lift a water softener, which weighs about 75 pounds, and that he believes he is capable of lifting 30 to 40 pounds several times an hour over an 8-hour day.

The trial court found that Stansbury was unable to perform the work for which he has had previous training and therefore awarded Stansbury vocational rehabilitation, to be limited to a 12-week period of job placement. The trial court found that although Stansbury testified to lengthy periods of unemployment, he did not produce medical evidence to show that he was unable for physical reasons to perform remunerative employment at a like or similar wage within his restrictions, and that it was more likely that his unemployment was due to the poor economy in Texas. Therefore, the court refused to award temporary disability benefits beyond those paid by HEP, Inc., under the settlement agreement.

In addition, the court noted that there was conflicting testimony regarding the extent of Stansbury's permanent partial disability. The court stated that in consideration of the medical evidence, Venter's report, Stansbury's testimony, and his history of heavy labor, it...