Crippen v. Walker

572 N.W.2d 97, 6 Neb. Ct. App. 289, 1997 Neb. App. LEXIS 175
CourtNebraska Court of Appeals
DecidedDecember 16, 1997
DocketNo. A-97-401
StatusPublished

This text of 572 N.W.2d 97 (Crippen v. Walker) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crippen v. Walker, 572 N.W.2d 97, 6 Neb. Ct. App. 289, 1997 Neb. App. LEXIS 175 (Neb. Ct. App. 1997).

Opinion

Hannon, Judge.

The State of Nebraska, Second Injury Fund, appeals an award of the Workers’ Compensation Court, finding that Doris L. Crippen’s workplace injuries had combined with her preexisting disability to render her permanently and totally disabled and finding that the Second Injury Fund was liable under Neb. Rev. Stat. § 48-128 (Reissue 1993) for its apportioned share of Crippen’s disability. The Second Injury Fund contends that it should have been dismissed as a party under Eichorn v. Eichorn Trucking, 3 Neb. App. 795, 532 N.W.2d 345 (1995), because Crippen’s injuries were separate and distinct and not capable of being combined. We disagree with the Second Injury Fund’s interpretation of Eichorn and conclude that although Crippen’s injuries were separate and distinct, the trial judge correctly combined them and held the Second Injury Fund liable for its apportioned share. Thus, we affirm.

PROCEDURAL BACKGROUND

The facts are undisputed. On or about December 10, 1992, Crippen suffered an accident arising out of and during the course of her employment with Max I. Walker (Walker), a dry cleaner, where she worked as a towel folder. Crippen’s injuries consisted of bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. Crippen subsequently brought an action against Walker for workers’ compensation benefits. In an order filed September 14,1994, the trial judge awarded her temporary total benefits and ordered that if the parties could not agree on the extent of her impairment at the time that her total disability ceased, an additional hearing could be held.

On December 6, 1995, Crippen filed a “further petition,” seeking permanent total disability benefits. In its answer, Walker affirmatively alleged that Crippen had reached maximum medical improvement and was entitled to permanent partial disability benefits based on a 10-percent rating for each upper extremity. At some point, ITT Hartford, Walker’s insurer, was made a party to the action. Crippen then impleaded the Second Injury Fund based on her complete bilateral hearing [291]*291loss, a condition which predated her employment with Walker and which Walker knew of when it hired Crippen. Thereafter, Crippen filed a “third party petition,” again praying for permanent total disability benefits.

A hearing was had on the matter on August 26, 1996. The trial judge found that from and after November 21, 1995, Crippen had been permanently and totally disabled on the basis of the combined disabilities of loss of hearing and her December 10, 1992, injuries to her arms. The trial judge found that because the requirements of § 48-128 had been satisfied, Walker was liable only for the 10-percent permanent partial disability to each arm resulting from the December 10, 1992, accident and that the Second Injury Fund was liable for the remainder of Crippen’s disability. The trial judge ordered the Second Injury Fund to pay $140 per week in permanent and total disability benefits. The Second Injury Fund appealed, and the review panel affirmed. The Second Injury Fund now appeals to this court.

ASSIGNMENTS OF ERROR

The Second Injury Fund contends that the court erred in concluding that all the requirements of § 48-128 had been met and in not following Eichorn, which it argues is precedential and controlling.

STANDARD OF REVIEW

With respect to questions of law in workers’ compensation cases, an appellate court is obligated to make its own determination. Acosta v. Seedorf Masonry, Inc., 253 Neb. 196, 569 N.W.2d 248 (1997).

ANALYSIS

The Second Injury Fund’s liability is set out in § 48-128, which provides in relevant part:

(1) If an employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, which is or is likely to be a hindrance or obstacle to his or her obtaining employment or obtaining reemployment if the employee should become unemployed and which was known to the employer prior to the occurrence [292]*292of a subsequent compensable injury, receives a subsequent compensable injury resulting in additional permanent partial or in permanent total disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. For the additional disability, the employee shall be compensated out of a special trust fund created for that purpose which shall be known as the Second Injury Fund which is hereby created. . . .
(2) In order to qualify under this section, the employer must establish by written records that the employer had knowledge of the preexisting permanent partial disability at the time that the employee was hired or at the time the employee was retained in employment after the employer acquired such knowledge.
(3) . . . No condition shall be considered a preexisting permanent partial disability under this section unless it would support a rating of twenty-five percent loss of earning power or more or support a rating which would result in compensation payable for a period of ninety weeks or more for disability for permanent injury as computed under subdivision (3) of section 48-121.

Section 48-128 requires, as a condition to entitlement to compensation from the Second Injury Fund, that the employee be “entitled to receive compensation on the basis of the combined disabilities.” See Eichorn v. Eichorn Trucking, 3 Neb. App. 795, 532 N.W.2d 345 (1995). The “combined disabilities” are those from the preexisting condition and the subsequent compensable injury. Id.

Absent the provisions of § 48-128, an employer is liable for all compensation benefits to which an employee is entitled. Therefore, the statute is for the benefit of the employer, as the employee has no interest in who pays the [293]*293money, so long as he or she receives it. [Citation omitted.] Because the statute benefits the employer, it is the employer’s burden to prove apportionment between the portion of the injury for which the fund is liable and the portion for which the employer is liable, and generally the fund’s involvement comes by virtue of the employer joining the fund in a manner akin to making it a third-party defendant.

Id. at 805, 532 N.W.2d at 352.

Section 48-128 allows the employer of an injured employee to shift some of the liability for benefits for an injured employee to the Second Injury Fund. However, before the burden can shift, the employee must first be found to be entitled to receive compensation benefits as a result of the combined disabilities.

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Related

Lozier Corp. & Liberty Mutual Insurance v. State
501 N.W.2d 313 (Nebraska Court of Appeals, 1993)
Camp v. Blount Bros. Corp.
238 N.W.2d 634 (Nebraska Supreme Court, 1976)
Runyan v. State, Second Injury Fund
138 N.W.2d 484 (Nebraska Supreme Court, 1965)
Acosta v. Seedorf Masonry, Inc.
569 N.W.2d 248 (Nebraska Supreme Court, 1997)
Akins v. Happy Hour, Inc.
306 N.W.2d 914 (Nebraska Supreme Court, 1981)
Eichorn v. Eichorn Trucking, Inc.
532 N.W.2d 345 (Nebraska Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
572 N.W.2d 97, 6 Neb. Ct. App. 289, 1997 Neb. App. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crippen-v-walker-nebctapp-1997.