Melton v. City of Holdrege

309 Neb. 385, 960 N.W.2d 298

• Court: Nebraska Supreme Court
• Decided: May 28, 2021
• Docket: S-20-721
• Status: Published

Opinion

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/20/2021 09:14 AM CDT

- 385 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

Benjamin Melton, appellant, v. City of Holdrege, appellee. ___ N.W.2d ___

Filed May 28, 2021. No. S-20-721.

1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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. 2. ____: ____. On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury ver- dict and will not be disturbed unless clearly wrong. 3. ____: ____. An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law. 4. Workers’ Compensation. Neb. Rev. Stat. § 48-121(3) (Reissue 2010) generally provides the manner by which a worker is compensated for the loss or loss of use of a scheduled member. 5. Damages. As a general rule, a party may not have double recovery for a single injury. 6. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures: Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes a 50-­percent penalty payment for waiting time involving delinquent pay- ment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee’s claim for workers’ compensation. 7. Workers’ Compensation: Attorney Fees: Words and Phrases. A “rea- sonable controversy” exists (1) if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers’ Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee’s claim, which - 386 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

conclusions affect allowance or rejection of an employee’s claim, in whole or in part. 8. Workers’ Compensation: Words and Phrases. Whether a reasonable controversy exists under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) is a question of fact. 9. Workers’ Compensation. Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the compensation court. 10. ____. A workers’ compensation award cannot be based on mere possibil- ity or speculation.

Appeal from the Workers’ Compensation Court: Dirk V. Block, Judge. Affirmed. Todd D. Bennett, of Rehm, Bennett, Moore & Rehm, P.C., L.L.O., for appellant. David A. Dudley and Micah C. Hawker Boehnke, of Baylor Evnen, L.L.P., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik, and Freudenberg, JJ. Cassel, J. I. INTRODUCTION Benjamin Melton sought workers’ compensation benefits after an injury resulted in a below-the-knee amputation of his leg. The trial court awarded compensation for a loss of foot and a partial loss of leg function. On appeal, Melton challenges the court’s determination of his loss and its decision to not award a penalty regarding permanent loss of his foot or vocational rehabilitation. Because the court’s factual findings were not clearly wrong and we find no error of law, we affirm. II. BACKGROUND 1. Injury and Disability Payments The City of Holdrege (City) employed Melton as a journey­ man lineman. In October 2011, Melton sustained a work- related injury resulting in an amputation of his left leg a few - 387 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

inches below the knee. In December, he was fitted for a pros- thesis, but attaining a good fit was a recurring problem. In March 2012, Melton returned to his position with the City. He was able to perform at least some aspects of his job. Melton did not feel that he could perform his lineman duties without the prosthesis, having tried to do so. While performing his job duties, he encountered issues with the use of his prosthesis, such as shrinking, swelling, sweating, and obtaining a good fit. In 2014, Melton underwent a “stump revision” surgery that helped him obtain a better fit with his prosthetic leg, though he still encountered pain and discomfort. From the date of the accident until Melton’s return to work, the City paid 23 weeks of temporary total disability benefits. Between March 14, 2012, and March 12, 2016, the City paid temporary partial disability benefits for 833⁄ 7 weeks. In May 2017, Melton provided the City with a record from his physi- cian stating that he had reached maximum medical improve- ment (MMI) and the City paid permanent partial disability benefits based on a 100-percent loss of Melton’s foot and an additional 5-percent loss to his leg. There is no dispute that the City paid all medical expenses under the fee schedule and all temporary disability benefits.

2. Petition and Trial In May 2017, Melton filed a petition seeking workers’ com- pensation benefits. He requested temporary and permanent dis- ability benefits, payment of medical expenses, and vocational rehabilitation benefits. He also asked for waiting-time penal- ties, attorney fees, and interest. Three years later, the workers’ compensation court con- ducted a trial. The evidence established that in 2018, Melton secured a new position as a corrosion technician with a dif- ferent employer. He remained in that employment at the time of trial. Melton testified that he continues to suffer pain in his knee, that his knee is weak, and that he does not have much use of his leg without employing a prosthetic device. He cannot - 388 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

stand for long periods of time or bear weight on the left leg without the prosthetic device. He testified that he would not even try to perform his job duties without his prosthesis. The court received conflicting evidence concerning an impairment rating for Melton. In an April 2017 record, a doctor determined that Melton’s total combined whole person impair- ment was 40 percent and the “WP Impairment Con­verted to Lower Extremity” was 32 percent. On the other hand, a differ- ent doctor opined within a reasonable degree of medical cer- tainty that Melton’s correct impairment rating was a 70-percent permanent partial impairment of his left lower extremity. The evidence regarding MMI differed, also. A February 2012 medical record stated, “Plan for MMI at one year post injury.” In an April 2017 record, a doctor stated that Melton had “reached a medically stable point in time.”

3. Award The court awarded Melton future medical care and perma- nent disability benefits. It rejected Melton’s argument that he was entitled to an award for the loss of each toe on his left foot in addition to the loss of that foot. Interpreting Neb. Rev. Stat. § 48-121(3) (Reissue 2010), the court determined that Melton’s amputation below the knee entitled him to statutory benefits for 150 weeks. The court found credible Melton’s tes- timony regarding his limitations and retained use of his leg. It concluded that Melton had not lost all functional use of his left leg, but that “his loss of thigh strength and atrophy combined with his knee pain have reduced the function of his leg beyond the loss of his foot.” The court found that Melton suffered a 20-percent loss of function to his leg, entitling him to 43 weeks of disability benefits. Thus, the court awarded a combined total of 193 weeks of compensation. The court recognized the parties’ disagreement as to when the City should have begun making periodic permanent dis- ability payments for the amputation of Melton’s left foot. It looked for an explanation concerning the City’s delay in - 389 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

paying for the loss of Melton’s foot and stated that “[t]he dif- fering dates of MMI by [Dr. Dennis] McGowan (2012) and [Dr. Bryan] Scheer (2017), when combined with the unan- swered question of when [the City] received McGowan’s opin- ion, create a factual controversy, if having a medical opinion is required.” The court declared that whether MMI must be proved by expert medical opinion was an unanswered question of law, but it concluded that an expert medical opinion was not required where temporary disability benefits are discontinued before MMI. The court found, as a matter of law, that in an uncontested case involving the amputation of a hand, arm, foot, or leg, payment for permanent disability for the amputa- tion should begin immediately at the discontinuance of tempo- rary disability benefits or MMI, whichever occurs first. Based on that finding, the court determined that Melton’s entitlement to payment for the amputation of his foot began on June 17, 2012, when he returned to full-time work and his temporary disability benefits were discontinued. The court denied Melton’s requests for a waiting-time pen- alty and vocational rehabilitation. In declining to award a penalty, the court found that “a reasonable controversy exists regarding an unanswered question of law” as to whether the discontinuance of temporary disability payments triggers pay- ment of permanent disability payments in a case involving an amputation. Because Melton had secured substantial gain- ful employment, the court denied his request for vocational rehabilitation. Melton filed a timely appeal, which we moved to our docket. 1

III. ASSIGNMENTS OF ERROR Melton assigns that the court erred in (1) failing to evaluate his loss and the loss of use of his leg without the assistance of his prosthetic device in determining impairment; (2) failing 1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020). - 390 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

to award him for the total loss of use of his leg; (3) failing to award him consecutive disability benefits for the total loss of all his toes, his foot, and use of his leg pursuant to § 48-121(3); (4) failing to award waiting-time penalties, attorney fees, and interest for late payment associated with the total loss of his foot; and (5) failing to find that he was entitled to an award of vocational rehabilitation services for satisfying criteria of Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010) despite no further services being requested or necessary at the time of trial.

IV. STANDARD OF REVIEW [1] A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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. 2 [2] On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. 3 [3] An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law. 4

V. ANALYSIS 1. Determination of Loss Melton challenges three aspects of the court’s determination of his loss. First, he argues that in determining his impairment, the court failed to evaluate loss of use of his left leg with- out the prosthesis attached. Second, Melton contends that the 2 Rogers v. Jack’s Supper Club, 308 Neb. 107, 953 N.W.2d 9 (2021). 3 Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). 4 Rogers v. Jack’s Supper Club, supra note 2. - 391 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

court should have awarded him compensation for the total loss of use of his leg. Third, Melton claims that the court erred in failing to award him consecutive disability benefits for a total loss of all his toes, his foot, and use of his left leg. Before addressing these challenges, we review statutory language cen- tral to our analysis. [4] Section 48-121(3) generally provides the manner by which a worker is compensated for the loss or loss of use of a scheduled member. 5 Loss of a foot or leg are examples of scheduled member injuries. Under § 48-121(3), compensa- tion for the loss of a foot lasts for 150 weeks while compen- sation for loss of a leg extends for 215 weeks. The statute specifies that “amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot,” while “amputation at or above the knee shall be considered as the loss of a leg.” 6 Under § 48-121(3), Melton’s amputation is considered a loss of a foot. Section 48-121(3) also touches on loss of use of a scheduled member. A permanent total loss of the use of a leg is consid- ered as the equivalent of the loss of such leg. 7 For a permanent partial loss of the use or function of a leg, “the compensation shall bear such relation to the amounts named in such subdivi- sion as the disabilities bear to those produced by the injuries named therein.” 8 We now turn to Melton’s arguments.

(a) Consideration of Prosthesis Melton argues that the court erred by determining the loss of use of his left leg with the prosthetic device rather than without the use of a prosthesis. We disagree that it did so. The court’s award recognized Melton’s limitations and use of a prosthesis. It acknowledged Melton’s testimony that he 5 Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 (2013). 6 § 48-121(3). 7 See id. 8 Id. - 392 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

would have no functional use of his leg without the prosthe- sis and that the function of his leg was reduced by his loss of thigh strength, atrophy, and knee pain. But the court found that Melton “has not lost all functional use of his left leg.” The court’s factual finding is not clearly wrong. The court explained, “The retained strength and function in the knee and thigh, although reduced, enable [Melton] to walk, climb steps, navigate uneven terrain, and generally support the use of the prosthesis below the knee.” This comports with Melton’s tes- timony regarding what he could do without his prosthesis: he could “pick up [his left] leg . . . waist high,” crawl up stairs, climb ladders (although Melton qualified that doing so would be “tough” and not “very safe”), and navigate uneven terrain by “crawl[ing] or scoot[ing] or slid[ing].” Because the court did not determine Melton’s loss based on use of his prosthesis, this assignment of error lacks merit. (b) Total Loss of Use of Leg Melton next argues that the court should have awarded him for a total loss of use of his left leg. He claims that without the prosthesis, his leg is a useless object for all practical intents and purposes. But Melton’s left leg was not useless—he remained able to bend his knee and support weight on the residual limb. As discussed above, the court’s finding that Melton had not lost all functional use of his leg was not clearly wrong. Melton relies on a Pennsylvania test mentioned by the Nebraska Court of Appeals in one of its decisions. In Jacob v. Columbia Ins. Group, 9 an employee suffered such extensive injuries to his left hand that doctors considered amputating it, but were ultimately able to save part of it. The Court of Appeals found Pennsylvania’s “‘practical intents and purposes’ test” to be persuasive on the question of whether the employee suffered such disability to his hand that the hand served no real purpose. 10 The Court of Appeals found as a matter of 9 Jacob v. Columbia Ins. Group, 2 Neb. App. 473, 511 N.W.2d 211 (1994). 10 Id. at 487, 511 N.W.2d at 219. - 393 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

law that the employee’s left hand was useless and that he suf- fered a 100-percent disability to his hand. Using that test, Melton argues that he has sustained a 100-percent loss of use of his left leg for all practical intents and purposes. However, the court’s finding that Melton retained enough strength in his left leg to use the prosthetic device is supported by the record. We cannot find that Melton’s left leg was useless. Melton next contends that the effects of his amputation were not usual, logical, and expected. Long ago, in consider- ing whether an employee who sustained an injury to his thumb should also be compensated on the basis of an injury to the hand, we observed that injuries to the thumb and to the hand were separate scheduled injuries under § 48-121(3) and that we had “consistently held that where the effect of an injury to a finger only is the usual and natural one, compensation cannot be allowed for loss of use of the hand.” 11 In Jacob, the Court of Appeals applied the principle for loss of or injury to any of the scheduled members listed in § 48-121(3), stating that “so long as the injury is only to a lesser member, the scheduled compensation for loss of or injury to that member controls, unless there is an unusual and unexpected result to the greater members.” 12 Here, the trial court found that Melton suffered an additional 20-percent loss of function in his leg that went beyond what would have otherwise been expected after ampu- tation of his left leg below the knee. We find no clear error in this regard.

(c) Failure to Make Consecutive Awards Melton further argues that the court erred in failing to award him consecutive amounts of disability benefits for the loss 11 Herold v. Constructors, Inc., 201 Neb. 697, 701, 271 N.W.2d 542, 544 (1978). 12 Jacob v. Columbia Ins. Group, supra note 9, 2 Neb. App. at 484, 511 N.W.2d at 217. - 394 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

of his five toes, the loss of his left foot, and the total loss of his left leg. He relies on the following statutory language: In any case in which there is a loss or loss of use of more than one member or parts of more than one member set forth in this subdivision, but not amounting to total and permanent disability, compensation benefits shall be paid for the loss or loss of use of each such member or part thereof, with the periods of benefits to run consecutively. 13 [5] Melton’s argument is refuted by statutory language found in the same paragraph. As we mentioned above, § 48-121(3) explicitly states that a below-the-knee amputation is the equiv- alent of a loss of a foot. It is obvious that such a loss would include a loss of the toes on the foot, but the Legislature lim- ited the loss to the foot. This is in line with the general rule that a party may not have double recovery for a single injury. 14 For the reasons discussed above, the trial court’s find- ing that Melton did not suffer a total loss of use of his leg was not clearly wrong. The court appropriately compensated Melton for the functional loss of his leg that was not already accounted for in the compensation for the loss of his foot. Being mindful that double recovery is disallowed and that loss of a leg is compensated for 215 weeks, the court was careful to award loss of use benefits for the leg that when coupled with the 150-week award for loss of a foot, would not exceed 215 weeks. We affirm the court’s award of a combined total of 193 weeks of compensation.

2. Penalty, Interest, and Attorney Fees Melton argues that the court erred by failing to award a waiting-time penalty, interest, and attorney fees with respect to late payment of permanent disability benefits for the loss of 13 § 48-121(3). 14 See D’Quaix v. Chadron State College, 272 Neb. 859, 725 N.W.2d 558 (2007). - 395 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

his foot. He does not quarrel with the trial court’s conclusion regarding when permanent disability benefits become due for an amputation. Rather, he challenges only the court’s factual finding that a reasonable controversy existed. Here, the parties’ disagreement centered on when the City should have made payments for the permanent loss of Melton’s foot. Melton argued that payment was due when his entitle- ment to temporary disability ceased. On the other hand, the City asserted that permanency benefits should be paid only after MMI has been reached and that it timely paid such benefits within 30 days of being provided proof that Melton had reached MMI. The City contends that this disagreement amounted to a reasonable controversy. [6,7] Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes a 50-percent penalty payment for waiting time involving delin- quent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee’s claim for workers’ compensation. 15 A “reasonable controversy” exists (1) if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers’ Compensation Act, or (2) if the prop- erly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee’s claim, which conclusions affect allowance or rejec- tion of an employee’s claim, in whole or in part. 16 [8] Whether a reasonable controversy exists under § 48-125 is a question of fact. 17 The compensation court determined that a reasonable controversy existed due to “an unanswered question of law” regarding the timing of permanent disabil- ity payments. Our case law is clear that temporary disability benefits are discontinued at the point of MMI and that when 15 Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020). 16 See id. 17 Id. - 396 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

an injured employee reaches MMI, any remaining disability is permanent. 18 We have also declared that MMI is not reached until all of the injuries resulting from an accident have reached maximum medical healing and that our law does not provide for partial MMI. 19 In this case, the City last paid tempo- rary partial disability benefits in March 2016, which suggests Melton had reached MMI. That Melton had reached MMI was made clear in a May 2017 letter in which Melton’s counsel informed the City that “Melton is now at MMI for the remain- ing impairment for the injury to his knee and leg.” Ten days later, the City mailed a check for the 100-percent loss of a foot. In finding a reasonable controversy, the court explained that “[o]ur appellate courts have not ruled that the discontinuance of temporary disability payments triggers payment of perma- nent disability payments in a case involving an amputation.” We agree that this was an unanswered question. Accordingly, we find no clear error in the compensation court’s finding that a reasonable controversy existed.

3. Vocational Rehabilitation Finally, Melton faults the court for not awarding vocational rehabilitation benefits. He emphasizes the importance of his prosthesis and of coworkers’ assistance in his ability to return to work. Melton argues that the court was “required to enter an award of vocational services as [he] has satisfied criteria a, b, c and d as set forth in [§] 48-162.01.” 20 Melton misconstrues the statute. Under § 48-162.01(3), an employee who, due to an injury, “is unable to perform suitable work for which he or she has previous training or experience, . . . is entitled to such 18 See Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015). 19 See Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232 (2005). 20 Brief for appellant at 30. - 397 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

vocational rehabilitation services, including job placement and training, as may be reasonably necessary to restore him or her to suitable employment.” The statute sets forth priorities to “be used in developing and evaluating a vocational rehabilitation plan.” 21 The priorities are contained in a list from (a) to (e), which are listed in order from lower priority to higher priority. Section 48-162.01(3) specifies that no higher priority may be used unless the lower priorities would be unlikely to result in suitable employment for the injured employee. [9] Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the compensation court. 22 In declining to award vocational rehabilitation, the court relied on Melton’s testimony that he had secured, and was capable of performing, substantial gain- ful employment. Although Melton believed he would need vocational rehabilitation if he became unable to continue his present employment, the court stated that it could not engage in speculation or give advisory opinions. [10] We find no clear error in the court’s decision to deny vocational rehabilitation benefits. The evidence establishes that Melton is able to perform suitable work for which he has previ- ous training or experience. He testified that he felt comfortable with his ability to continue performing the essential functions of his job. Although Melton desired an award of vocational rehabilitation in case he needed services in the future, a work- ers’ compensation award cannot be based on mere possibility or speculation. 23 To the extent Melton is arguing he should be entitled to vocational rehabilitation based on a future loss of his existing employment but without an increase in his disability, this argu- ment invites us to provide an advisory opinion. We decline to do so. 21 § 48-162.01(3). 22 Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018). 23 See id. - 398 - Nebraska Supreme Court Advance Sheets 309 Nebraska Reports MELTON v. CITY OF HOLDREGE Cite as 309 Neb. 385

VI. CONCLUSION We find no clear error in the court’s determination that Melton did not suffer a total loss of his leg, but, rather, suffered a 20-percent loss of function to his leg that went beyond what would have been otherwise expected following amputation of his leg below the knee. We cannot say that the court was clearly wrong in finding the existence of a reasonable contro- versy regarding timing of payments for the loss of Melton’s foot. Finally, because Melton was performing suitable work for which he had previous training or experience, the court did not err in denying vocational rehabilitation benefits. We affirm the judgment. Affirmed. Stacy, J., not participating.