Stansbury v. HEP, Inc.
| Decision Date | 27 October 1995 |
| Docket Number | No. S-94-813,S-94-813 |
| Citation | 539 N.W.2d 28,248 Neb. 706 |
| Parties | Carl STANSBURY, Appellant, v. HEP, INC., Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. A reviewing 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.
2. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the inferior courts.
3. Statutes. A substantive law creates duties, rights, and obligations; a procedural law prescribes the means and methods through and by which substantive laws are enforced and applied.
4. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
5. Workers' Compensation: Expert Witnesses. The Workers' Compensation Court is not required to take an expert's opinion as binding and may, as may any other trier of fact, either accept or reject such an opinion.
6. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party.
Gordon Peterson, of Orton, Brown, Thomas & Peterson, Lincoln, for appellant.
Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz, Omaha, for appellee.
The Nebraska Workers' Compensation Court entered judgment directing the defendant-appellee employer, HEP, Inc., to pay the plaintiff-appellant employee, Carl Stansbury, in addition to the compensation benefits it had already paid him or on his behalf, benefits for a 10-percent loss of earning capacity and for a 12-week period of vocational rehabilitation. Claiming that he was entitled to greater benefits, as more particularly set forth in part IV(2) below, Stansbury appealed to the Nebraska Court of Appeals, which in part affirmed and in part reversed the judgment of the compensation court. Stansbury v. HEP, Inc., 3 Neb.App. 712, 530 N.W.2d 284 (1995). HEP then successfully petitioned this court for further review, asserting the Court of Appeals erred in determining the applicable law and its effect, as more particularly set forth in part IV(1) below. We now reverse the judgment of the Court of Appeals and remand with the direction that it affirm the judgment of the compensation court.
A reviewing 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. Shade v. Ayars & Ayars, Inc., 247 Neb. 94, 525 N.W.2d 32 (1994); Neb.Rev.Stat. § 48-185 (Reissue 1993). However, on questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the inferior courts. See McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995).
Stansbury began working for HEP on March 25, 1991. The parties stipulated that he sustained a compensable injury to his lower back on May 9, 1991, and stipulated to his earnings. In addition, the parties entered into a partial settlement agreement which was approved by the compensation court. The partial settlement agreement left open for further determination the compensability of medical expenses incurred after August 27, 1992; the existence of temporary disability, whether total or partial, after August 27, 1992; the existence of permanent disability, whether total or partial; and Stansbury's entitlement to vocational rehabilitation. The nature and extent of Stansbury's injury also remain an issue between the parties.
Stansbury, who had a high school education and no other formal training at the time of trial, February 4, 1994, was 28 years old. His work history includes jobs that required heavy lifting, bending, and stooping.
He left HEP on May 19, 1991, and moved to Texas, where he found the job market more difficult than here. In the summer of 1991, he was hired part time by an amusement company. He quit that job in December 1991 because work was available for only a few hours a day. Stansbury thereafter received unemployment benefits while continuing to seek employment. However, he was unable to find reemployment until June 1992, when he was hired by a furniture company. He was laid off from that position in August 1992 and again received unemployment benefits while he searched for another job. He was next hired part time in October 1993 to install water softeners. This job requires Stansbury to lift up to 75 pounds, and he has not missed any work because of his back problems.
After Stansbury moved to Texas, he started treatment with Dr. Jaime C. Lim, but HEP and its insurance carrier were not happy with him, so the parties agreed to switch to medical treatment by Dr. Craig A. Banta. Stansbury began treatment with Banta on October 28, 1992, and continued with him through March or April 1993. Banta expressed the opinion that Stansbury could not engage in heavy lifting or frequent bending, stooping, or lifting, and indicated that Stansbury had suffered a 5-percent permanent impairment of the whole body. Banta concluded in a questionnaire dated February 18, 1993, that Stansbury had reached maximum medical improvement.
Stansbury underwent a functional capacity assessment in March 1993 and has not seen Banta since. In fact, Stansbury did not see a doctor from March 1993 until the time of trial. The functional capacity assessment recited that Stansbury could lift an average material handling weight of 121 pounds and perform at a moderately heavy work level.
In June 1993, Dean N. Venter of Venter Consulting Service evaluated Stansbury's loss of earning capacity. Venter indicated that if Stansbury were limited to medium work, his loss of earning capacity would be approximately 15 to 20 percent. If he were limited to light-duty work, his loss of earning capacity would be 25 to 30 percent. According to Venter, however, if the functional capacity assessment was an accurate portrayal of Stansbury's present physical capabilities, his loss of earning capacity would be minimal. In December 1993, Venter prepared a vocational rehabilitation plan based on the assumption that Stansbury would be limited to light-duty work, which included 2 years of training at Southeast Community College in electronics.
We first consider HEP's assignments of error and then proceed to a review of the errors Stansbury assigned to the compensation court.
HEP asserts the Court of Appeals erred in three respects, namely, in its determination of the applicable statute, its treatment of the evidence, and its failure to find that Stansbury waived any error in the statute applied.
More particularly, HEP contends in its first assignment of error that the Court of Appeals wrongly determined that Neb.Rev.Stat. § 48-162.01 (Reissue 1993) applies to this case.
Section 48-162.01 (Reissue 1988) was amended to operate from and after January 1, 1994, so as to provide, among other things, a means of determining a vocational rehabilitation plan and a means of determining loss of earning power. 1993 Neb. Laws, L.B. 757. Subsection (3) of the new version of the statute provides in relevant part:
If entitlement to vocational rehabilitation services is claimed by the employee, the employee and the employer or his or her insurer shall attempt to agree on the choice of a vocational rehabilitation counselor from the directory of vocational rehabilitation counselors established pursuant to subsection (2) of this section. If they are unable to agree on a vocational rehabilitation counselor, the employee or employer or his or her insurer shall notify the compensation court, and the compensation court shall select a counselor from the directory of vocational rehabilitation counselors established pursuant to subsection (2) of this section. Only one such vocational rehabilitation counselor may provide vocational rehabilitation services at any one time, and any change in the choice of a vocational rehabilitation counselor shall be approved by the compensation court. The vocational rehabilitation counselor so chosen or selected shall evaluate the employee and, if necessary, develop a vocational rehabilitation plan. It shall be a rebuttable presumption that any vocational rehabilitation plan developed by such vocational rehabilitation counselor and approved by a vocational rehabilitation specialist of the compensation court is an appropriate form of vocational rehabilitation.... Any loss-of-earning-power evaluation performed by a vocational rehabilitation counselor shall be performed by a counselor from the directory established pursuant to subsection (2) of this section and chosen or selected according to the procedures described in this subsection. It shall be a rebuttable presumption that any opinion expressed as the result of such a...
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