Cunningham v. Leisure Inn

573 N.W.2d 412, 253 Neb. 741, 1998 Neb. LEXIS 10
CourtNebraska Supreme Court
DecidedJanuary 9, 1998
DocketS-97-266
StatusPublished
Cited by25 cases

This text of 573 N.W.2d 412 (Cunningham v. Leisure Inn) 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
Cunningham v. Leisure Inn, 573 N.W.2d 412, 253 Neb. 741, 1998 Neb. LEXIS 10 (Neb. 1998).

Opinions

Per Curiam.

This is an action filed in the Nebraska Workers’ Compensation Court by the plaintiff, Margie Cunningham, against her employer, Leisure Inn, and its insurance carrier, USF&G Company. Cunningham sought compensation for personal injury she allegedly sustained while in the performance of her duties for Leisure Inn. The trial judge of the compensation court dismissed Cunningham’s petition. A review panel of the compensation court reversed the trial judge’s order dismissing Cunningham’s petition. Leisure Inn and USF&G now appeal the decision of the compensation court’s review panel.

In August 1995, Cunningham worked in housekeeping for Leisure Inn in Omaha, Nebraska. Her duties included cleaning guest rooms and making beds. On August 23, while she was at work, Cunningham was bending over to make a bed when she experienced a pain in her back which traveled down her right leg. Later that day, Cunningham went to the emergency room at Bergan Mercy Hospital where she was treated and released for her injury. Up to the date of trial, Cunningham had not returned to work for Leisure Inn.

Cunningham filed a petition in the Workers’ Compensation Court on September 28, 1995, seeking compensation from Leisure Inn for her injury of August 23.

At trial, Cunningham offered exhibit 7, which contained two medical reports, one prepared by Dr. Daniel McKinney and the other prepared by Dr. Satish Mediratta. The reports contain statements by each doctor stating his belief that Cunningham’s injuries were the result of her work with Leisure Inn on August [743]*74323, 1995. Leisure Inn and USF&G objected to exhibit 7 because it was not timely disclosed under Workers’ Comp. Ct. R. of Proc. 4 and 10 (1997).

Rule 4D is a discovery rule which states, in pertinent part:

No party will be allowed to introduce documentary evidence not timely identified or exchanged, or to amend forms, answers, medical reports or lists of witnesses within 30 days of the date of trial, unless the offering party shows good cause why the late offering of such evidence should be excused.

Rule 10 is an evidentiary rule which, in pertinent part, states:

The Nebraska Workers’ Compensation Court is not bound by the usual common law or statutory rules of evidence; and accordingly, with respect to medical evidence on hearings before a single judge of said court, written reports by a physician or surgeon . . . may, at the discretion of the court, be received in evidence in lieu of or in addition to the personal testimony of such physician or surgeon ....
Each party shall serve all reports of a physician or surgeon . . . relevant to the case in possession of the party upon each opposing party. The service shall be received at least 30 days prior to the time set for hearing if the party intends to offer the report as evidence.

It is undisputed that Cunningham never disclosed the two reports to Leisure Inn and USF&G before trial. The trial judge sustained Leisure Inn and USF&G’s objection to exhibit 7. Rather than request a continuance to comply with rules 4 and 10, Cunningham chose to proceed with trial. Nevertheless, the judge did offer a continuance to Cunningham, which was refused. After Cunningham’s testimony had been heard, the court allowed her, pursuant to rule 4, to show “good cause” as to why exhibit 7 had not been timely exchanged. Cunningham stated that she did not have the funds available to pay for the report. The trial judge found Cunningham’s reason for the delay insufficient to show “good cause” under rule 4.

The trial judge entered an order of dismissal on April 9, 1996, stating that Cunningham had failed to meet her burden of proof with respect to the issue of causation.

[744]*744Cunningham filed an application for review to a review panel of the Workers’ Compensation Court, alleging that the trial judge had abused his discretion in excluding exhibit 7. The review panel reversed the trial judge’s order of dismissal and remanded the matter on February 7, 1997. The review panel, in light of our recent decisions in Zessin v. Shanahan Mechanical & Elec., 251 Neb. 651, 558 N.W.2d 564 (1997), and Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799 (1997), ordered the trial court “to conduct such proceedings as are necessary to determine whether the requisites for due process have been met sufficient to admit Exhibits [sic] 7.”

Leisure Inn and USF&G appealed the review panel’s order to the Nebraska Court of Appeals. We granted Leisure Inn and USF&G’s petition to bypass.

Leisure Inn and USF&G assign as error that the Workers’ Compensation Court review panel abused its discretion and erred in its determination within the order dated February 7, 1997, providing that other proceedings need to be conducted on remand to determine whether the standards of due process were met with respect to exhibit 7.

Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 1993), an appellate court may modify, reverse, or set aside a Workers’ 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. Acosta v. Seedorf Masonry, Inc., ante p. 196, 569 N.W.2d 248 (1997); Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers’ Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing. Acosta, supra; 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). With respect to questions of law in workers’ compensation cases, the appellate court is obligated to make its own determination. Acosta, supra; Sheridan, supra; Winn, supra.

[745]*745The Workers’ Compensation Court is not bound by the usual common-law or statutory rules of evidence; subject to the limits of constitutional due process, admission of evidence is within the discretion of the compensation court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Sheridan, supra; Berggren v. Grand Island Accessories, 249 Neb. 789, 545 N.W.2d 727 (1996); Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636

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Cunningham v. Leisure Inn
573 N.W.2d 412 (Nebraska Supreme Court, 1998)

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Bluebook (online)
573 N.W.2d 412, 253 Neb. 741, 1998 Neb. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-leisure-inn-neb-1998.