Bituminous Casualty Corp. v. Deyle

451 N.W.2d 910, 234 Neb. 537, 1990 Neb. LEXIS 46
CourtNebraska Supreme Court
DecidedFebruary 23, 1990
Docket89-426
StatusPublished
Cited by41 cases

This text of 451 N.W.2d 910 (Bituminous Casualty Corp. v. Deyle) 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
Bituminous Casualty Corp. v. Deyle, 451 N.W.2d 910, 234 Neb. 537, 1990 Neb. LEXIS 46 (Neb. 1990).

Opinions

Per Curiam.

Bituminous Casualty Corporation (Bituminous) appeals from an order of the Nebraska Workers’ Compensation Court, which, on rehearing, directed Bituminous to pay $56,412.05 in nursing expenses for Theodore C. Deyle. Deyle cross-appeals and contends that the Workers’ Compensation Court erred in failing to award him an additional sum for waiting time, an attorney fee, and interest.

STANDARD OF REVIEW

“ ‘Findings of fact made by the Nebraska Workers’ Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case. [Citations omitted.] In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers’ Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. [Citations omitted.] Factual determinations by the Workers’ Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous. Regarding facts determined and findings made after rehearing in the Workers’ Compensation Court, § 48-185 precludes the Supreme Court’s substitution of its view of [539]*539the facts for that of the Worker’s Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers’ Compensation Court. [Citations omitted.] As the trier of fact, the Nebraska Workers’ Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony.’ ”

Osborne v. Buck’s Moving & Storage, 232 Neb. 752, 752-53, 441 N.W.2d 906, 906-07 (1989). See, Fees v. Rivett Lumber Co., 228 Neb. 617, 423 N.W.2d 483 (1988); Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987). See, also, Neb. Rev. Stat. § 48-185 (Reissue 1988).

BITUMINOUS I

On August 4, 1984, Deyle, employed as president of the Deyle Construction Company, sustained a severe back and spinal injury. When a dispute arose over the compensability of Deyle’s claim for workers’ compensation, Bituminous, the insurer for Deyle’s employer, filed an action in the Workers’ Compensation Court to determine liability on Deyle’s claim. On December 30, 1985, the Workers’ Compensation Court entered its “Award on Rehearing” and ordered Bituminous to pay disability benefits to Deyle and pay Deyle’s medical expenses of $61,229.67. Bituminous appealed.

In Bituminous Casualty Corp. v. Deyle, 225 Neb. 82, 402 N.W.2d 859 (1987) (Bituminous I), issued on March 27, 1987, we concluded that Deyle was not entitled to disability benefits. Consequently, in Bituminous I we held that the Workers’ Compensation Court’s “judgment is in error and must be reversed” concerning the award of disability benefits, but that “[t]he judgment of the three-judge panel of the Workers’ Compensation Court is affirmed except as modified” regarding the appellate disallowance of disability benefits. 225 Neb. at 91, 402 N.W.2d at 865-66. Thus, as the result of Bituminous I, the initial award of $61,229.67 for Deyle’s medical expenses remained intact.

AFTER BITUMINOUS I

On September 3, 1987, Bituminous paid part of Deyle’s medical expenses ordered to be paid under the initial award [540]*540modified in Bituminous I. When Bituminous failed to pay the balance of the medical expenses, Deyle filed his petition in the Workers’ Compensation Court to recover the remaining and unpaid medical expenses pursuant to the initial award and additional medical expenses which he had incurred after the initial award.

Pretrial Order.

As the result of a pretrial conference before rehearing in the Workers’ Compensation Court, the pretrial order specified that among the issues were whether Deyle’s nursing care and expenses were fair and reasonable; whether certain medical expenses were the result of his back injury; and whether Deyle was “entitled to receive additional sums for waiting time, attorney fees, and interest...” As we expressed in Bump v. Firemens Ins. Co., 221 Neb. 678, 684, 380 N.W.2d 268, 273 (1986):

Pretrial conferences are conducted to simplify and narrow issues presented in a case. [Citation omitted.] Issues specified at a pretrial conference control the course of an action and, unless altered by the court, constitute the issues on which the case is tried. [Citation omitted.] Generally, issues delineated in an unaltered pretrial order supplant the issues raised in the pleadings. [Citation omitted.]

Before the rehearing, Bituminous paid the balance of the medical expenses in compliance with the initial award modified in Bituminous I.

Evidence of Medical Expenses.

Deyle is unmarried. After the compensable 1984 back injury, Deyle’s right leg was amputated below the knee. Even prior to the amputation, Deyle had experienced difficulty in moving about, but at times he was somewhat ambulatory with a “walker.” With the exception of hospital confinement for approximately 1 month in 1987, for 12 days in early April 1988, and for 7 weeks from late April until June 21, 1988, all Deyle’s care in question was received in his home in Kearney, Nebraska.

Deyle’s physician, Dr. Robert C. Rosenlof, expressed a medical preference that any of his patients with a back injury [541]*541such as that sustained by Deyle receive inhome care whenever the circumstances allow. Deyle’s medical problems from the 1984 accident included severe and chronic pain in his legs and back, recurrent urinary tract infections, and loss of neuromuscular control on account of the “cord injury,” which resulted in difficulties with his bowels, bladder, and prostate.

According to Dr. Rosenlof, Deyle was “not able to be up and around.” Consequently, Deyle’s condition involved protracted bed rest during which he was unable to move himself within his bed. Extended bed rest required that someone check Deyle’s body for “ulcers” and assist him in moving from the bed into the walker and, later, from the walker into the bed. As Dr. Rosenlof observed, even with a walker, Deyle’s ambulation required “considerable assistance.” The instability in Deyle’s back makes use of a prosthesis doubtful. Deyle requires assistance in setting up equipment for his bowel movement and catheterization, and in monitoring his blood pressure in view of his hypertension. As a result of limited locomotion, Deyle cannot prepare his meals or bathe himself. Dr. Rosenlof felt that someone would have to be with Deyle in case of an urgent need for some form of assistance during the night. For that reason, Dr. Rosenlof prescribed inhome nursing care around-the-clock for Deyle.

The personnel hired by Deyle to render inhome nursing care included a nurse’s aide who stayed at Deyle’s home and provided care from 5 p.m. until 8 a.m. for a monthly salary of $1,000. Deyle also hired a certified care staff member (CSM), who had more training than a nurse’s aide, to take care of him from 8 a.m. to 5 p.m.

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Bluebook (online)
451 N.W.2d 910, 234 Neb. 537, 1990 Neb. LEXIS 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bituminous-casualty-corp-v-deyle-neb-1990.