Anderson v. Omaha Public School District

581 N.W.2d 424, 254 Neb. 1007, 1998 Neb. LEXIS 169
CourtNebraska Supreme Court
DecidedJuly 10, 1998
DocketS-97-661
StatusPublished
Cited by7 cases

This text of 581 N.W.2d 424 (Anderson v. Omaha Public School District) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Omaha Public School District, 581 N.W.2d 424, 254 Neb. 1007, 1998 Neb. LEXIS 169 (Neb. 1998).

Opinions

McCormack, J.

Nancy Anderson petitioned this court for further review of the Nebraska Court of Appeals memorandum opinion and judgment on appeal filed December 18, 1997, affirming the Workers’ Compensation Court review panel decision which affirmed an earlier order of the compensation court awarding Anderson temporary total disability benefits. Anderson alleges that the compensation court erred in reducing her present award of temporary total disability payments by the amount of a prior award for permanent partial disability. The compensation court ordered the reduction based on the provisions of Neb. Rev. Stat. § 48-121.01 (1 )(a)(iii) (Reissue 1993), which provide that an employee’s maximum weekly compensation benefit may not exceed $350. We reverse, and remand for further proceedings.

BACKGROUND

Anderson was employed in the physical education department of the Omaha Public School District (OPS). On May 7, 1991, Anderson suffered a compensable injury arising out of and in the course of her employment with OPS when she attempted to “break up a fight” between students. As a result of the injury, Anderson injured her back. The compensation court found that Anderson suffered a 10-percent permanent partial disability and awarded her the sum of $56.30 per week for 300 weeks. This award was not appealed from by either party.

On March 14, 1995, Anderson again suffered a compensable injury arising out of and in the course of her employment with OPS when she was “butted in her low back by a student wearing a helmet.” The compensation court found that Anderson suf[1009]*1009fered a temporary total disability as a result. According to statute, based on Anderson’s weekly wage, she was entitled to temporary total disability benefits of a maximum $350 per week for an indefinite period of time while she suffered the temporary total disability. Because § 48-121.01(l)(a)(iii) provides that an employee may not receive in excess of $350 per week, however, the court reduced the total temporary disability award by the amount of the prior permanent partial disability award of $56.30, resulting in a total benefit payment for both injuries of the statutory maximum of $350 per week. The court further calculated that the terms of the permanent partial disability would terminate on February 4, 1997, and that after that date, if Anderson remained temporarily totally disabled, she would be entitled to have her temporary total disability award increased back to the statutory maximum of $350 per week.

Anderson filed a motion to modify the court’s prior award to remove the deduction of the prior permanent partial disability award payments from the total of her temporary total disability award. The court denied this motion. Anderson then filed an application for review with the compensation court review ¡panel, which affirmed the award of the court. Anderson appealed this decision to the Court of Appeals, which affirmed the decision of the review panel.

ASSIGNMENTS OF ERROR

In her petition for further review, Anderson assigns as error the Court of Appeals’ affirmance of the review panel’s decision because the panel erred as a matter of law in reducing the amount of benefits to which Anderson was entitled by benefits previously finally adjudicated as owing to Anderson as a result of a separate and distinct accident and injury, thereby resulting in Anderson’s subsidizing OPS’ obligations under workers’ compensation and being required to pay part of the cost thereof.

STANDARD OF REVIEW

In determining whether to affirm, modify, reverse, or set aside the judgment of the compensation court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing. Cunningham v. Leisure Inn, 253 Neb. 741, 573 N.W.2d 412 (1998); Thach v. Quality [1010]*1010Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997); Acosta v. Seedorf Masonry, Inc., 253 Neb. 196, 569 N.W.2d 248 (1997); Dyer v. Hastings Indus., 252 Neb. 361, 562 N.W.2d 348 (1997); Winn v. Geo. A. Hormel & Co., 252 Neb. 29, 560 N.W.2d 143 (1997).

Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 1993), an appellate court may modify, reverse, or set aside a 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. U S West Communications v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998); Cunningham v. Leisure Inn, supra; Roth v. Sarpy Cty. Highway Dept., 253 Neb. 703, 572 N.W.2d 786 (1998); Thach v. Quality Pork International, supra.

An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law. Varela v. Fisher Roofing Co., 253 Neb. 667, 572 N.W.2d 780 (1998); Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997); Winn v. Geo. A. Hormel & Co., supra; Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662 (1997); Ira v. Swift-Eckrich, 251 Neb. 411, 558 N.W.2d 40 (1997).

ANALYSIS

The amount of compensation available to employees for workers’ compensation is defined by statute. Neb. Rev. Stat. § 48-121 (Reissue 1993) provides in pertinent part:

The following schedule of compensation is hereby established for injuries resulting in disability:
(1) For total disability, the compensation during such disability shall be sixty-six and two-thirds percent of the wages received at the time of injury, but such compensation shall not be more than the maximum weekly income benefit specified in section 48-121.01 ....
(2) For disability partial in character, except the particular cases mentioned in subdivision (3) of this section, the compensation shall be sixty-six and two-thirds percent of [1011]

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Anderson v. Omaha Public School District
581 N.W.2d 424 (Nebraska Supreme Court, 1998)

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Bluebook (online)
581 N.W.2d 424, 254 Neb. 1007, 1998 Neb. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-omaha-public-school-district-neb-1998.