Zwiener v. Becton Dickinson–E.

• Decision Date: 19 April 2013
• Docket Number: No. S–12–563.,S–12–563.
• Citation: 829 N.W.2d 113,285 Neb. 735
• Parties: Pat ZWIENER, appellee and cross-appellant, v. BECTON DICKINSON–EAST, appellant and cross-appellee.
• Court: Nebraska Supreme Court

285 Neb. 735

829 N.W.2d 113

Pat ZWIENER, appellee and cross-appellant,

v.BECTON DICKINSON–EAST, appellant and cross-appellee.

No. S–12–563.

Supreme Court of Nebraska.

April 19, 2013.

Syllabus by the Court

[285 Neb. 735]1. Workers' Compensation. Whether a plaintiff in a Nebraska workers' compensation case is totally disabled is a question of fact.

2. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a workers' compensation case, every controverted fact must be resolved in favor of the successful party and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

3. Workers' Compensation: Words and Phrases. Temporary disability is the period during which the employee is submitting to treatment, is convalescing, is suffering from the injury, and is unable to work because of the accident.

4. Workers' Compensation. Total disability exists when an injured employee is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the employee's mentality and attainments could perform.

5. Workers' Compensation. The level of a worker's disability depends on the extent of diminished employability or impairment of earning capacity, and does not directly correlate to current wages.

6. Workers' Compensation. An employee's return to work at wages equal to those received before the injury may be considered, but it does not preclude a finding that the employee is either partially or totally disabled.

7. Workers' Compensation. Earning capacity determinations should not be distorted by factors such as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his or her crippling handicaps.

[285 Neb. 736]8. Workers' Compensation. If payment of wages upon an employee's return to work was intended to be in lieu of indemnity benefits for which the employer accepted responsibility, then credit for those wages is allowed.

9. Workers' Compensation: Rules of Evidence. As a general rule, the Nebraska Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence.

10. Workers' Compensation: Evidence: Due Process: Appeal and Error. Subject to the limits of constitutional due process, the admission of evidence is within the discretion of the Nebraska Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.

Abigail A. Wenninghoff, of Larson, Kuper & Wenninghoff, P.C., L.L.O., for appellant.

Ryan C. Holsten, of Atwood, Holsten, Brown & Deaver Law Firm, P.C., L.L.O., for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and CASSEL, JJ.

McCORMACK, J.

NATURE OF CASE

The employer appeals from an award of the Nebraska Workers' Compensation Court, and the employee cross-appeals. We hold that an employee who leaves a job with an employer responsible for an injury in order to pursue more desirable employment does not waive temporary total disability benefits simply because the employer responsible for the injury would have accommodated light-duty restrictions during postsurgical recovery periods necessitated by the injury.

BACKGROUND

Pat Zwiener filed a petition against Becton Dickinson–East (Becton) in the compensation court, seeking temporary total disability benefits, compensation for certain unpaid medical bills, mileage expenses, and attorney fees under Neb.Rev.Stat. § 48–125 (Reissue 2010). Zwiener had not yet reached maximum medical improvement and did not seek a permanent impairment rating.

Zwiener suffered a shoulder injury arising out of and in the course of his employment with Becton on August 20, 2009. The injury was originally diagnosed as a strain. Zwiener was treated conservatively with corticosteroid injections, anti-inflammatories, and physical therapy. Zwiener was advised that he could continue working without restrictions.

On March 12, 2010, Zwiener resigned his employment with Becton and began workingfor Sapp Brothers, Inc., as a driver. The choice of new employment was unrelated to the injury. Zwiener explained that he liked being outdoors and that the pay was better. According to Becton, Zwiener knew surgery for the injury might be a possibility. But Zwiener's diagnosis and prognosis were, at the time he left Becton, uncertain.

Zwiener's shoulder injury continued to bother him, and he obtained a second opinion. The injury was eventually determined to consist of a tear to the right rotator cuff and nearby tendons. After further diagnostic tests, surgery was recommended. The recovery period from the surgery would require that Zwiener not use his right arm. Sapp Brothers was unable to accommodate that restriction.

Concerned that he would be without a wage during the recovery period, Zwiener tried to postpone the surgery until August 2010. Despite a medical opinion that waiting a few months would not adversely affect the outcome of the surgery, Becton insisted that Zwiener have the surgery right away if he wanted to ensure it was compensable. The surgery took place on May 10, 2010.

On May 12, 2010, Zwiener was released to work with the restriction of not using his right arm. Because Sapp Brothers could not accommodate this restriction, Zwiener did not work during the period of the restriction. Zwiener was not released to return to work at Sapp Brothers until July 8.

Becton agreed to pay for the surgery and related medical expenses, but it denied payment of any temporary total disability benefits during the recovery period for the surgery. Becton reasoned that if Zwiener had stayed employed there, Becton would have accommodated Zwiener's recovery restrictions and he would have been able to continue to receive a wage during that period. Becton has an aggressive return-to-work policy designed to put its injured employees back to work rather than have them remain off work collecting workers' compensation benefits.

Unfortunately, Zwiener's symptoms were not completely alleviated by the first surgery. Eventually, a second surgery was recommended and scheduled for January 9, 2012. Zwiener testified that Becton had denied compensation for the recommended magnetic resonance imaging to determine whether the first surgery had been successful and whether another surgery was necessary. Zwiener understood that Becton would not approve the second surgery, so he submitted the second surgery for payment through his personal health care insurer instead.

Anticipating Becton's denial of temporary total disability benefits, on December 22, 2011, Zwiener's counsel wrote to Becton's counsel stating that Zwiener would be able to work for Becton, with restrictions, during the recovery period of his surgery. Zwiener's counsel asked that Becton inform Zwiener whether it would allow this and how to proceed. Becton did not respond. At the workers' compensation hearing, Becton objected to the letter as hearsay. The objection was overruled.

The second surgery was performed on January 9, 2012. Zwiener's physician recommended no work until January 30. Zwiener was released to work with restrictions on January 31. But Sapp Brothers was again unable to accommodate the restrictions, which included Zwiener's not being able to use his right arm.

Zwiener's counsel again wrote to Becton's counsel, asking that Becton state whether it would allow Zwiener to work light duty at Becton during the postsurgery recovery period. Becton did not respond.At the hearing, Becton's hearsay objection to this letter was overruled.

Becton denied temporary total disability benefits for the recovery period of the second surgery. Zwiener was not able to return to work at Sapp Brothers until April 25, 2012.

At the hearing before the compensation court, the parties agreed that Becton had voluntarily paid Zwiener $8,275.37, pursuant to a permanent partial impairment rating after the first surgery. The parties agreed that this amount should be credited against any award and that, accordingly, no waiting-time penalties should be incurred.

The compensation court awarded Zwiener temporary total disability benefits for the periods he was unable to work due to his postsurgery restrictions. The court found no merit to Becton's position that if an employee is no longer working at Becton and cannot take advantage of Becton's return-to-work policy, then that employee is not entitled to temporary total disability benefits. The court explained that an employee is not “eternally bound” to remain employed with the employer responsible for the injury in order to receive the workers' compensation benefits to which the employee is entitled by statute. Furthermore, the court explained that “[i]t is not logical to mandate an internal return-to-work policy upon someone who is no longer an employee of the entity issuing the policy.”

The court found that Becton had failed to pay outstanding medical expenses of a community hospital in the amount of $2,173 and of an orthopaedic hospital in the amount of $1,222.18. In addition, Becton was ordered to reimburse Zwiener's insurer for $5,565.86 in payments it made for medical expenses related to the second surgery. The court determined that Becton owed Zwiener $26.34 in mileage.

The court awarded attorney fees to Zwiener in the amount of $5,155. This was the total amount of attorney fees Zwiener's attorney demonstrated were incurred in bringing Zwiener's workers' compensation claim against Becton. The court noted that there was no reasonable controversy as to the compensability of the temporary total disability benefits and, also, that certain medical bills and mileage expenses were paid late. The court did not calculate the attorney fee award specifically in relation to the amount of untimely paid medical bills, because it also...