Archive for September, 2011

September 25, 2011

Nebraska Workers Compensation Case Law Update

Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400 (Decided 9/22/2011)

 

Summary: In workers compensation claims,  doctors will often state conservative care is reasonable and necessary and leave open the possibility of future surgical care. The Pearson case helps ensure that when those possible future surgeries become necessary that they will be compensable

 

Relevant facts: Plaintiff injured his right knee and back after being hit by forklift on October 27, 2006. The court found plaintiff reached MMI on his right knee on April 14, 2008 and entered in award on August 29, 2008 ruling that plaintiff had no impairment or restrictions to his right knee but awarding “any future medical treatment which falls under the provisions Neb. Rev. Stat. §48-120. At the time of the award, a treating doctor indicated that injections, anti-inflamatories and a knee brace were reasonable and necessary. A knee replacement surgery was indicated as a possibility.

 

Plaintiff had knee replacement surgery on June 19, 2009 and was eventually given a 37 percent impairment by his treating doctor. Defendant refused to pay the cost of plaintiff’s knee surgery so plaintiff filed a motion to compel payment and a motion to modify the award under Neb. Rev. Stat. §48-141 to have the permanent impairment on the knee paid. Plaintiff also moved to compel payment of injections for the back. The court overruled plaintiff’s motions on the right knee on the grounds that if it had meant to order a knee replacement it would never have found the plaintiff at MMI. The court sustained the motion to compel on the payment for injections on the back.

 

The Supreme Court found that the trial court erred in not allowing plaintiff to present any evidence as to the compensability of the knee replacement. The court reasoned that just because the knee replacement wasn’t reasonable and necessary at the time of trial doesn’t mean that it could not be reasonable and necessary at present. The court also held that the fact that plaintiff had no impairment or restrictions did not preclude a finding that a knee replacement was necessary.

 

Plaintiff also argued that plaintiff’s health insurer should be fully re-imbursed for payments made for plaintiff’s lower back injections. The court rejected this argument stating that under Neb. Rev. Stat §48-120(1) and (8) that medical expenses in a workers compensation case are to be paid under the fee schedule.

 

Hofferberer v. Hastings Utility, 282 Neb 215, Decided September 8, 2011

 

Summary: The Workers Compensation court now has limited contempt powers, but it is unclear where they would apply. The court also affirmed that defendant’s need to show some evidence that non-compliance with medical care or vocational rehabilitation would decrease disability before suspending benefits. In addition court held that an improper venue of a case absent objection by a party does not defeat jurisdiction

 

Facts: Parties entered into a stipulated dismissal in 2003 agreeing to on-going medical care and temporary total disability. In 2005, defendant asked plaintiff to sign a medical release in order to determine why he was missing his recommended medical appointments. Plaintiff refused to sign the medical release and defendant suspended benefits. In 2006, Plaintiff filed a pro se petition to resume payment of benefits, but refused to comply with defendant’s discovery requests. Plaintiff left profane voice mail messages for both defense counsel and defendant’s nurse case manager. On March 20, 2007 defendant filed a motion to compel plaintiff to answer discovery and avail himself to medical treatment. The court sustained defendant’s motion on April 2, 2007. Defendant filed a motion to dismiss based on failure to answer discovery on April 26, 2007. A hearing was not held until February 6, 2008. That hearing was moved from the original venue ofAdamsCountytoDouglasCountybecause of security concerns. Plaintiff did not object to the change in venue. In the meantime plaintiff continued his non-compliant and profane towards the defendant and their representatives. On February 29, 2008 the court ordered that plaintiff comply with medical treatment and stop abusive behavior towards defendant. The court also ordered the defendant to pay medical bills. Plaintiff continued his non-cooperative behavior towards the defendant and defendant ultimately won an order to dismiss the claim and terminate benefits on March 28, 2009 based on plaintiff’s failure to cooperate with medical treatment.

 

On April 9, 2009 a guardian was appointed for plaintiff because he was unable to make decisions concerning his own health and financial needs. On September 10, 2009, plaintiff through his guardian filed for reinstatement of his benefits. Plaintiff argued that the court’s dismissal of the claim was improper because 1) the hearing was held in DouglasCountyinstead of the county where the accident happened, Adams, as required by Neb. Rev. Stat.  §48-177 2) the court did not specify the order was dismissed with prejudice and 3) the workers compensation act only permits termination of benefits as a sanction for medical non-compliance, not dismissal.

 

The trial court ordered that the previous order was null because  Neb. Rev. Stat. §48-177 had been violated by moving the case toDouglasCounty. Defendant appealed and the Review Panel agreed that the order should not be held as void because of improper venue. However they agreed with plaintiff that the court did not have the power to dismiss a claim for medical non-compliance and contemptous behavior. Both parties appealed to the Supreme Court.

 

Suspension of Benefits:

 

The court held that under Neb. Rev. Stat. §48-162.01(7) and Neb. Rev. Stat. §48-120(2)(c) that the court could only suspend benefits if the defendant can offer evidence that plaintiff’s refusal to partake in medical care and/or vocational care would decrease their disability. No such evidence was ordered by the defendant. The court also rejected defendant’s argument that the as “otherwise required in the interest of justice” language of 48-162.01(7) gave the court the power to suspend benefits for medical non-compliance.

 

Contempt powers:

 

Plaintiff relied on Burnham v Pacesetter, 280 Neb. 707, 789 N.W. 2d 913 (2010) to argue that workers compensation court did not have contempt authority. The court agreed that the workers compensation court did not have inherent or contempt powers granted by the Nebraska Workers Compensation Court. However, distinguishing Burnham, the court held the workers compensation court has contempt powers granted under Neb. Rev. Stat §25-2121 to punish by fine or imprisonment. The court ruled that those limited contempt powers would not cover dismissal of an action. The court did not discuss when those contempt powers under Neb. Rev. Stat. §25-2121 would apply.

 

Venue

 

The court held that the trial court erred in declaring the dismissal order null based on failure to follow Neb. Rev. Stat §48-177 venue provision. The court agreed that the trial judge had no power to vacate his order. Furthermore,Neb.Rev. Stat. §48-177 is a procedural statute that does not deny the court jurisdiction. However, the court did hint that if the plaintiff had objected to the change in venue and that if he had appealed that decision that they court might have overturned the trial judge’s decision based on improper venue.

 

Mueller v. Lincoln Public Schools, 282Neb. 25, Decided August 5, 2010

 

Summary: School employees will likely have their average weekly calculated based on a weekly average of their yearly earnings.

 

Plaintiff was injured working as a school cafeteria manager on or about February 2, 2007. Plaintiff worked for nine months out of the year, but was paid over 12 months. At trial parties stipulated that plaintiff’s average hourly wage was $15.27 per hour. Defendant presented evidence that defendant paid this wage in order to pay a competitive wage. Defendant argued at trial that plaintiff’s average weekly wage should be based on the wages she received over her 52 weeks period leading to an average weekly wage for temporary purposes of $411.49 and $458.20 for permanent purposes. The court disagreed and calculated plaintiff’s average weekly wage based on her hourly earnings in the six months before plaintiff’s injury. The defendant appealed the trial judge and the Supreme Court reversed the trial court and remanded the cause back to the trial court to re-calculate the average wage.

 

The court based it’s ruling on the rule announced in Powell v. Estate Gardners, 275 Neb. 287, 294, 754 N.W. 2d 917, 923 (2008) that the language “ordinarily constituting his or her week’s work” in Neb. Rev. Stat §48-126 precludes the type of automatic mathematical calculation based on the previous six months work engaged in by the trial court. The policy behind Powell is that the wage should produce an honest estimate of claimant’s future earning capacity and not distort employee’s average weekly wage. The court agreed with defendant that the court’s calculation of average weekly wage paid the plaintiff too much in disability in relation to her monthly paycheck from the defendant

 

 

 

 

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September 5, 2011

Three takeaways from two days of depositions with Wal-Mart

I spent two days in depositions with Wal-Mart in a wrongful termination case in late August. I took away three interesting lessons that other practitioners and HR professionals might find interesting.

Lesson 1: If you’re representing the plaintiff, always have your client present when you are taking depositions of defense witnesses. My client picked up on a key fact on a key issue that I had not thought of in my deposition preparation. Thanks to my client, the testimony of my client’s direct supervisor’s later in the day undermined the credibility of the HR manager taken earlier in the day.

Lesson 2: Wal-Mart has re-structured their written performance evaluations: My client was terminated in 2009.  I found out in depositions that Wal-Mart has re-structured how they do written performance evaluations. I’ve read commentary from some HR practitioners about getting rid of performance evaluations altogether because they often end up as exhibits for the plaintiff in wrongful termination cases. In this case, Wal-Mart’s written performance evaluations showed my client was an average to above-average employee. These written evaluations are important because satisfactory work performance is one piece of circumstantial evidence linking protected activity/class to termination. It seems that Wal-Mart has attempted to close this avenue that plaintiff’s have to prove their wrongful termination cases.  However, during the depositions of my client’s direct supervisors, both of those supervisors testified that my client was a good employee. I find that direct supervisors and lower management will usually vouch for my client’s if in fact they are good employees. Some might fear that direct supervisors would hesitate to give favorable testimony for plaintiff’s in a wrongful termination case, but that really hasn’t been my experience in regards to work performance.

Lesson 3: Wal-Mart documents training in regards to union organizing separate from their other fair employment practices training. I just found the above fact interesting, this tidbit came from a direct supervisor of my client. Wal-Mart trains management and hourly associates in fair employment practices and documents that training in a database. Apparently the training that HR gives to supervisors and line managers is not documented in that same database/