Cummings v. Omaha Public Schools

558 N.W.2d 601, 5 Neb. Ct. App. 391, 1997 Neb. App. LEXIS 17
CourtNebraska Court of Appeals
DecidedJanuary 28, 1997
DocketNo. A-96-493
StatusPublished
Cited by1 cases

This text of 558 N.W.2d 601 (Cummings v. Omaha Public Schools) 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
Cummings v. Omaha Public Schools, 558 N.W.2d 601, 5 Neb. Ct. App. 391, 1997 Neb. App. LEXIS 17 (Neb. Ct. App. 1997).

Opinion

Irwin, Judge.

I. INTRODUCTION

Edward Cummings appeals from an order of the Workers’ Compensation Court review panel (panel) which affirmed an order of a trial judge of the Workers’ Compensation Court (court). The court awarded Cummings compensation for a 5-percent disability resulting from a series of work-related accidents in 1992 and 1993 which exacerbated Cummings’ back injury from a prior, compensated, work-related accident in 1984. The court further denied Cummings’ claim for psychological injuries resulting from the 1992 and 1993 accidents. Cummings appealed to the panel, alleging that the court was clearly wrong in relying on particular medical evidence in assessing his disability; that his disability should not have been apportioned between the prior, compensated injury and the new [392]*392injuries; and that the court was clearly wrong in denying compensation for the alleged psychological injuries. The panel affirmed the judgment. For the reasons stated herein, we reverse, and remand.

II. BACKGROUND

Cummings is, and was at all times relevant to these proceedings, employed by Omaha Public Schools. In August 1984, Cummings injured his back in a work-related accident. As a result of that accident, Cummings received a lump-sum settlement award based upon a 25-percent disability to his body as a whole. Subsequent to the settlement, Cummings returned to work at a salary equal to or greater than his salary prior to the accident.

On June 1, 1992, Cummings was injured at work when ceiling tiles fell onto him, causing injury to his back and exacerbating his prior back condition. On November 10, Cummings suffered another injury at work when a chair rolled out from under him, causing additional injury to his back and additional exacerbation of his back condition. On March 1, 1993, Cummings fell on ice in the parking lot at work, causing additional injury to his back and additional exacerbation of his back condition. On April 30, Cummings was involved in an altercation at work between a student and a security guard, causing additional injury to his back and additional exacerbation of his back condition. Finally, on November 23, Cummings suffered a back spasm at work which caused him to fall to his knees, additionally exacerbating his back condition.

On June 13,1994, Cummings filed a petition in the Workers’ Compensation Court, seeking compensation for the series of accidents. Cummings alleged temporary total disability, emotional and psychological injuries, and loss of earning capacity. On June 27, Omaha Public Schools and its workers’ compensation insurance carrier filed an answer.

On October 17, 1994, a hearing was held before the court. At trial, the parties stipulated that Cummings was injured in a series of work-related accidents, that there was no controversy regarding payment of temporary total disability benefits, and that the only issues remaining at trial concerned Cummings’ [393]*393loss of earning capacity. At trial, Cummings offered evidence, including a medical report and a vocational rehabilitation report concerning his injuries and loss of earning capacity. Omaha Public Schools and its insurer objected to the admissibility of the two reports, arguing that they had not been timely disclosed and that the medical report was not properly characterized as a rebuttal report. The court sustained the objections to the two exhibits.

The court received other evidence and heard testimony from Cummings and two employees of Omaha Public Schools. Included in the admitted evidence was a medical report from Dr. Lonnie Mercier, who examined Cummings in August 1993. Mercier’s examination occurred prior to the back spasm incident in November 1993. The evidence also indicated that an MRI was performed on Cummings sometime after the November 1993 incident, and the MRI was not considered in Mercier’s report or conclusions.

On November 8, 1994, the court entered an award in favor of Cummings. The court found that the series of injuries occurred in the course and during the scope of Cummings’ employment with Omaha Public Schools and that Cummings was entitled to workers’ compensation benefits. The court awarded 10 weeks of temporary total disability benefits. The court further determined that Cummings had suffered a 5-percent loss of earning capacity from the series of injuries and the exacerbation of his prior back condition. The court specifically noted that the determination concerning Cummings’ loss of earning capacity was based heavily on Mercier’s report. Additionally, the court found that Cummings failed to satisfy his burden of proof regarding the alleged psychological injuries and denied compensation for them. Finally, the court declined to award vocational rehabilitation benefits.

On November 14, 1994, Cummings filed an application for review of the court’s award by the panel. Cummings assigned as error the court’s reliance on Mercier’s report rather than the objective MRI results; the court’s acceptance of particular vocational rehabilitation opinions; the court’s refusal to accept the two proffered reports into evidence; the court’s apportionment of Cummings’ disability between his prior, compensated injury [394]*394and the new series of injuries; the court’s denial of any compensation for alleged psychological injuries; and the court’s specific finding that Cummings could obtain the same or a similar salary from a different employer if his employment with Omaha Public Schools was for some reason ended.

On March 21, 1995, the panel affirmed the court’s award in all respects except concerning the court’s ruling on the admissibility of the two reports offered by Cummings. The panel ruled that the exhibits should not have been excluded on the basis upon which the court excluded them, and the panel remanded the case on the limited issue of loss of earning capacity.

On May 5, 1995, the court entered an order on remand. The court noted that the exhibits had been received and that all of the evidence had been reconsidered. The court once again concluded that Cummings’ loss of earning capacity from the series of accidents was 5 percent.

On May 19, 1995, Cummings filed another application for review of the court’s opinion. Cummings assigned the same six errors as in his first application for review, except with regard to the previous assignment concerning the admissibility of the exhibits. In the place of that assigned error, Cummings assigned that the court’s ruling was contrary to the evidence.

On April 24,1996, the panel entered an order. The panel held that the assignments of error which had been previously rejected on the first review were not reviewable a second time, because of the law-of-the-case doctrine. With regard to the new assignment of error, the panel affirmed the court’s findings. This appeal timely followed.

III. ASSIGNMENTS OF ERROR

On appeal, Cummings has assigned six errors. As one of his assignments of error, Cummings asserts that the panel erred in failing to reconsider all of his assigned errors during the panel’s review of the case after remand. Because our discussion of this assignment of error disposes of the case, we need not address Cummings’ other assignments. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).

[395]*395IV. ANALYSIS

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Related

Cummings v. Omaha Public Schools
574 N.W.2d 533 (Nebraska Court of Appeals, 1998)

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Bluebook (online)
558 N.W.2d 601, 5 Neb. Ct. App. 391, 1997 Neb. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-omaha-public-schools-nebctapp-1997.