Vega v. Iowa Beef Processors, Inc.

• Decision Date: 12 July 2002
• Docket Number: No. S-01-141.,S-01-141.
• Citation: 264 Neb. 282,646 N.W.2d 643
• Parties: Gonzalo VEGA, Appellant, v. IOWA BEEF PROCESSORS, INC., Appellee.
• Court: Nebraska Supreme Court

646 N.W.2d 643

264 Neb. 282

Gonzalo VEGA, Appellant, v. IOWA BEEF PROCESSORS, INC., Appellee.

No. S-01-141.

Supreme Court of Nebraska.

July 12, 2002.

Joseph C. Dowding, of Dowding, Dowding & Dowding, Lincoln, for appellant.

Nicole M. Mailahn, of Jacobsen, Orr, Nelson, Wright & Lindstrom, P.C., Kearney, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MILLER-LERMAN, JJ.

GERRARD, J.

FACTUAL AND PROCEDURAL BACKGROUND

Gonzalo Vega, the appellant, suffered injuries as a result of accidents arising out of and in the course of his employment with Iowa Beef Processors, Inc. (IBP). Vega suffered injuries to his right shoulder, right knee, left elbow, and lower back in four separate accidents during 1994 and 1996. In an award entered October 8, 1998, and an order nunc pro tunc entered October 19, 1998, the single judge of the Nebraska Workers' Compensation Court found as follows:

1. Vega injured his right shoulder on September 19, 1994, while "pulling fat" and experienced a 10-percent permanent functional impairment of his right arm as a result of the accident;

2. Vega injured his right knee on January 26, 1996, while kneeling down on a metal grate and experienced a 30percent permanent functional impairment of his right leg as a result of the accident;

3. Vega injured his left elbow on March 4, 1996, while "pulling fat" and experienced a 6-percent permanent functional impairment of his left arm as a result of the accident; and

4. Vega injured his lower back on March 14, 1996, as a result of "twisting and pulling on the production line" and experienced a 50-percent loss of earning capacity for impairment to the body as a whole as a result of that accident.

As a result of the court's finding three compensable injuries to scheduled members (i.e., shoulder, knee, and elbow), as well as a 50-percent loss of earning capacity for impairment to the body as a whole regarding the back injury, the single judge ordered IBP to pay Vega permanent partial disability benefits for each of the injuries, medical expenses, waiting-time penalties, attorney fees, and interest. In addition, the single judge approved vocational rehabilitation services for Vega and ordered the payment of temporary total disability benefits during the period of vocational rehabilitation. Vega was enrolled in classes pursuant to the vocational rehabilitation plan from February 16, 1998, through January 8, 1999.

On February 18, 1999, the parties stipulated that there was $48,654.77 due and owing on the award of October 8, 1998. The parties agreed, in the stipulation, that "[t]he issue before the Court is whether or not the defendants are entitled to credit, against amounts due and owing per [the October 8, 1998,] Award, for temporary total disability paid during vocational rehabilitation, starting on 2/16/98 through the current date."

On January 5, 2000, after some intervening proceedings that are not relevant to this appeal, Vega filed a motion for waiting-time penalties, attorney fees, and interest. Vega alleged that the award of October 8, 1998, was then final and that IBP continued to owe Vega $10,990.87 in past-due benefits.

In an order entered June 19, 2000, the single judge of the Workers' Compensation Court agreed with Vega. The single judge found that IBP had paid a lump sum of past-due benefits, but had taken credit for temporary total disability benefits paid while Vega was engaged in vocational rehabilitation. The court concluded that IBP's obligation to pay temporary total disability benefits during Vega's vocational rehabilitation was separate and independent of its obligation to pay permanent partial disability benefits awarded at the original hearing. Because IBP could not take credit for the temporary total disability benefits paid during Vega's vocational rehabilitation, the single judge determined that IBP still owed Vega $10,990.87. The court ordered that this amount be paid, as well as $5,495.44 in waiting-time penalties and interest, and awarded Vega $1,800 in attorney fees.

The single judge, in confirming the parties' calculations of the total amount owed pursuant to the October 8, 1998, award, also engaged in a discussion whether certain permanent partial disability benefits could be "stack[ed]" onto temporary total disability benefits up to the statutory maximum set forth in Neb.Rev.Stat. § 48-121.01 (Reissue 1998). The single judge stated that such benefits could be stacked up to the maximum rate, which was $409 per week in this case, but that benefits exceeding that amount could be deferred until after temporary total disability benefits were exhausted. See Anderson v. Omaha Pub. Sch. Dist., 254 Neb. 1007, 581 N.W.2d 424 (1998). The single judge determined that $8,237.80 in permanent partial disability benefits should have been paid to Vega concurrently with the temporary total disability benefits he received during vocational rehabilitation and that any other suspended benefits should have been paid by the time that IBP presented Vega with the lump-sum payment of pastdue benefits. Thus, the single judge concluded that at the time of the lump-sum payment, all the benefits awarded in the October 8, 1998, award were due and owing, and entered a further award.

IBP filed an application for review, arguing that the single judge had erred in concluding that IBP was not entitled to credit for the temporary total disability benefits paid while Vega was engaged in vocational rehabilitation. The review panel of the Workers' Compensation Court reversed the judgment of the single judge, finding that the single judge had erred in stacking Vega's permanent partial disability benefits and temporary total disability benefits up to the statutory maximum set forth in § 48-121.01 when determining the amount of benefits that were past due at the time of IBP's lump-sum payment to Vega. The review panel stated that "[i]f the trial court is correct in that [§ ] 48-121.01 and $409.00 is the appropriate amount, then the figures set forth in the further award of June 19, 2000, are correct and should be affirmed." The review panel concluded, however, that the appropriate limitation on Vega's total benefits was 66 2/3 percent of Vega's wages at the time of injury, as set forth in Neb.Rev.Stat. § 48-121(1) (Reissue 1998). Since the single judge, according to the review panel, based his calculations on an erroneous assumption regarding the amount that was past due at the time of the lump-sum payment, the review panel reversed and dismissed the further award entered on June 19. Vega appeals.

ASSIGNMENT OF ERROR

Vega assigns, consolidated and restated, that the review panel of the Workers' Compensation Court erred in determining that a worker entitled to receive both temporary total disability and permanent partial disability benefits cannot receive those benefits concurrently up to the maximum weekly rate set forth in § 48-121.01.

STANDARD OF REVIEW

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. Schwan's Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002).

The meaning of a statute is a question of law. Nicholson v. General Cas. Co. of Wis., 262 Neb. 879, 636 N.W.2d 372 (2001). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

ANALYSIS

Before addressing the issue in this case, it is helpful to discuss two established principles in order to narrow the focus of our inquiry. We have long recognized that the workers' compensation statutes do not prohibit a worker from concurrently receiving statutory benefits for separate injuries arising out of separate accidents, so long as the combined payments do not exceed the maximum weekly rate allowed by statute. See, Anderson v. Omaha Pub. Sch. Dist., 254 Neb. 1007, 581 N.W.2d 424 (1998); Foreman v. State, 240 Neb. 716, 483 N.W.2d 752 (1992); Hansen v. Paxton & Vierling Iron Works, 138 Neb. 589, 293 N.W. 415 (1940); Peterson v. Borden's Produce Co., 125 Neb. 404, 250 N.W. 240 (1933); Nelson v. Service Oil Co., 121 Neb. 762, 238 N.W. 525 (1931). The reasoning is that a worker should not be prohibited from receiving benefits for a current injury merely because that worker is receiving unrelated compensation for a separate injury to a separate part of the worker's body from a previous accident. See Hansen, supra. However, it is equally well settled that a worker may not simultaneously receive benefits for temporary total disability during vocational rehabilitation and benefits for a whole body permanent partial disability (i.e., loss of earning power) arising out of the same injury. See, Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998); Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990); Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987). This is because the effort at vocational rehabilitation is aimed at reducing the loss of earning power in a whole body permanent partial disability situation. See Thom, supra.

In the instant case, both of the above principles are in play, but neither the parties nor the Workers' Compensation Court articulated which of the particular permanent partial disability benefits could be paid concurrently with the benefits for temporary total disability during Vega's vocational rehabilitation. In other words, Vega was entitled to receive permanent partial disability payments for each of the three scheduled member injuries simultaneously with the temporary total disability payments during vocational...