Thach v. Quality Pork Intern.

• Decision Date: 12 December 1997
• Docket Number: No. S-97-183,S-97-183
• Parties: Kuol THACH, Appellee, v. QUALITY PORK INTERNATIONAL and Liberty Mutual Insurance Group, Appellants.
• Court: Nebraska Supreme Court

Page 830

570 N.W.2d 830

253 Neb. 544

Kuol THACH, Appellee, v. QUALITY PORK INTERNATIONAL and Liberty Mutual Insurance Group, Appellants.

No. S-97-183.

Supreme Court of Nebraska.

Dec. 12, 1997.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1993), 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) 2. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside the judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing.

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.

3. Workers' Compensation: Jurisdiction: Statutes. As a statutorily created court, the Workers' Compensation Court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute.

4. Workers' Compensation: Judgments: Time. Every order and award of a single judge of the Workers' Compensation Court shall be binding upon each party at interest unless an application for review has been filed with the compensation court within 14 days following the date of rendition of the order or award.

5. Workers' Compensation: Judgments: Time: Appeal and Error. The Workers' Compensation Court may, on its own motion, modify or change its findings, order, award, or judgment at any time before appeal and within 10 days from the date of such findings, order, award, or judgment for the purpose of correcting any ambiguity, clerical error, or patent or obvious error.

6. Workers' Compensation: Judgments: Courts: Jurisdiction. While it is true that in civil cases a court of general jurisdiction has inherent power to vacate or modify its own judgment during the term in which it was rendered, that rule does not apply to statutory tribunals such as the compensation court, for it is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute.

7. Workers' Compensation. The compensation court may prescribe the procedure to be followed if an injured worker desires to obtain the benefit of rehabilitation services. Where such a procedure had been prescribed, the right to rehabilitation services, including the right to compensation for temporary total disability while undergoing rehabilitation, depends upon compliance with the procedure prescribed.

8. Workers' Compensation. An employee, unless he or she is otherwise qualified to receive temporary total disability benefits, is entitled to such benefits only while undergoing rehabilitation which has been ordered by the court.

9. Workers' Compensation. The employee shall be entitled to compensation from his or her employer for temporary total disability while undergoing rehabilitation whether the rehabilitation is voluntarily offered by the employer and accepted by the employee or is ordered by the Nebraska Workers' Compensation Court or any judge of the compensation court.

Thomas D. Wulff and Kevin L. Flynn, of Welch, Wulff & Childers, Omaha, for appellant Quality Pork International.

Trinh P. Tran, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

McCORMACK, Justice.

This is an appeal from the Nebraska Workers' Compensation Court review panel which upheld a decision of a single judge of the Workers' Compensation Court granting temporary total disability benefits to appellee, Kuol Thach, for the time period from January 22, 1996, when appellee was self-enrolled in English as a second language (ESL) classes, through May 20, 1996, when the court-approved plan of vocational rehabilitation took effect. On our own motion, we removed the matter to this court under our authority to regulate the caseloads of the Nebraska Court of Appeals and this court. We reverse.

STATEMENT OF FACTS

The original claim in this action was heard by the single judge of the compensation court on October 18, 1995. The parties stipulated that appellee suffered injuries to his hands in the course of his employment at Quality Pork International. The parties further stipulated Mr. Thach's final vocational objective cannot be determined until he can be adequately evaluated. The plan must necessarily be in phases, as originally designed. The nature of remedial course work in phase II and career training in phase III cannot logically be determined until after completion of ESL level III classes when plaintiff can be vocationally evaluated. The court awards a two year period of vocational rehabilitation after completion of ESL level III classes and evaluation necessary to determine the course of plaintiff's vocational rehabilitation.

that at the time of the injury, appellee's average weekly wage was $432.85. An award was entered by the single judge on January 22, 1996, awarding temporary total disability benefits from September 24, 1993, through February 3, 1994, and again from March 9, 1994, through September 20, 1994, the date at which appellee reached maximum medical improvement. The single-judge court also awarded permanent partial disability benefits at a rate of 10 percent for each hand. The single-judge court further determined that the appellee was entitled to vocational rehabilitation services, including retraining and job placement. Important to note is the award's discussion of ESL classes as they related to vocational rehabilitation. The single-judge court found:

(Emphasis in original.) We note the emphasis that the single-judge court placed on the term "after" prior to discussing the ESL level III classes. In its award on January 22, 1996, the single-judge court emphasized that vocational rehabilitation would only be approved by the court following the completion of credit ESL classes. The award further provided that

if the plaintiff desires to be evaluated as to his suitability for rehabilitation services, he should either by letter, telephone, or in person, contact the Rehabilitation Specialist of the Nebraska Workers' Compensation Court, at the Capitol Building in Lincoln, Nebraska, within 30 days after the date of this Award ... if the plaintiff fails or declines, without reasonable cause to indicate his desire for rehabilitation services in the manner and within the time above specified, he shall be deemed to have waived any and all right to such services.

Seven days after the award was entered, counsel for appellee wrote the single-judge court requesting a "Non Protunc [sic] Order to address a possible ambiguity regarding an award [the court] entered on January 22, 1996." The letter requested that the single-judge court "advise [appellee's counsel] whether Mr. Thach is entitled to benefits for the time he was enrolled in ESL courses prior to this completion." The correspondence also requested clarification regarding the award's silence as to attorney fees and penalties. No order nunc pro tunc was ever issued by the single-judge court and neither side appealed the January 22, 1996, award.

On May 10, 1996, appellee filed a motion for indemnification of costs, benefits due, and attorney fees in which he sought the payment of benefits for the time period during which he attended noncredit ESL classes of his own volition, but at the suggestion of his vocational rehabilitation counselor. Appellants, Quality Pork International and Liberty Mutual Insurance Group, answered by alleging that appellee's motion was procedurally defective in that there was no provision for such a motion under the Nebraska Workers' Compensation Act (Act); that to the extent that appellee's motion could be construed as an appeal or a request for review of the single-judge court's earlier award, such appeal or request was untimely; and that to the extent the motion sought benefits for temporary total disability for a time period from the date of the accident to the date of the trial, the matter would have been previously adjudicated and thus barred under res judicata. Appellants further alleged that all benefits had been paid and that appellee was not entitled to further benefits unless and until a plan of vocational rehabilitation had been approved by the parties.

A hearing was held on this motion, and the single-judge court entered an order compelling appellants to pay temporary total disability benefits from January 22, 1996, the date of the initial award, through May 20, 1996, the day prior to appellee's enrollment in the court-approved plan of vocational rehabilitation. Appellants then filed an application for review, and in an order filed on January 22, 1997, the review panel affirmed

the order entered by the single-judge court, finding (1) that a vocational rehabilitation plan was provided for in the single-judge court's original award and that any objection to a plan of vocational rehabilitation should have been filed within 14 days of that award, and (2) that the issue of whether appellee actively participated in an approved vocational rehabilitation plan was a question of fact and that the single-judge court's determinations in that regard were not clearly erroneous. Because appellants filed an appeal of the order of the single-judge court and because the appeal failed to secure a reduction in payments, attorney fees in the amount of $1,500 were awarded to appellee.

ASSIGNMENTS OF ERROR

Appellants assign as error: (1) The review panel erred in affirming the single-judge court's award of temporary total disability for the period from January 22, 1996, through May 20, 1996, to appellee who was not participating in an approved rehabilitation program, and (...