Straub v. City of Scottsbluff

784 N.W.2d 886, 280 Neb. 163
CourtNebraska Supreme Court
DecidedJuly 2, 2010
DocketS-09-1121
StatusPublished
Cited by5 cases

This text of 784 N.W.2d 886 (Straub v. City of Scottsbluff) 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
Straub v. City of Scottsbluff, 784 N.W.2d 886, 280 Neb. 163 (Neb. 2010).

Opinion

784 N.W.2d 886 (2010)
280 Neb. 163

Robert A. STRAUB, appellee,
v.
CITY OF SCOTTSBLUFF, a political subdivision, and League Association of Risk Management, appellants.

No. S-09-1121.

Supreme Court of Nebraska.

July 2, 2010.

*887 John W. Iliff and Jessica S. Wolff, of Gross & Welch, P.C., L.L.O., Omaha, for appellants.

Kristine R. Cecava, Sidney, and Michael J. Javoronok, Scottsbluff, of Javoronok & Neilan, for appellee.

*888 HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HEAVICAN, C.J.

INTRODUCTION

The City of Scottsbluff and the League Association of Risk Management (collectively appellants) appeal the decision of the three-judge panel of the Nebraska Workers' Compensation Court, affirming the trial court's award. The trial court awarded Robert A. Straub the maximum weekly wage of $600 for 1 3/7 weeks of total temporary disability and $229.21 for 298 4/7 weeks for a 35-percent loss of earning power.

BACKGROUND

Straub is a sergeant with the Scottsbluff Police Department and was employed in that capacity when he suffered injuries as a result of two accidents within a 6-week period of time. The first accident occurred on June 25, 2006, when Straub was struck by a passing vehicle during a routine traffic stop. Straub recorded the traffic stop, and the recorded video was made part of the record as a DVD. From the DVD, it appears as though Straub was struck in his left hip by the side mirror of the passing vehicle. He also suffered a puncture wound to his lower leg. Straub stated that he did not know how his lower leg was punctured, but that it happened during the accident.

After the accident, Straub went to a hospital emergency room and stated that he was hurting "from [his] hips to [his] toes." The doctor who treated him recommended that Straub use ice and follow up as soon as possible with an orthopedist. The accident resulted in a fractured left iliac wing and lower back complaints with associated soft tissue injuries. Straub's chosen orthopedist recommended that Straub take some time off of work. Straub testified that he had begun taking days off at the time of the incident and had returned to work on Wednesday, June 28, 2006. Straub testified that he continued to have pain in his hip, lower back, and midback, and pain and numbness in his legs.

Straub further testified that he continued to have pain and that his orthopedist ordered an MRI. On August 7, 2006, while on his way to a hospital for the MRI, Straub's vehicle was hit by another vehicle. Straub had taken the day off from work and had taken his children to a babysitter's house. The accident occurred between the babysitter's house and the hospital. Straub testified that the impact occurred on the driver's side and that he was thrown forward in the vehicle. Straub testified that his chest, back, and neck ached immediately after the accident and that he later developed shoulder pain. Straub stated that he had braced himself against the vehicle's dashboard on impact and that he believed that was how his shoulder had been injured.

The Workers' Compensation Court found that both accidents were work related and compensable. Specifically, the trial court, citing Larson's Workers' Compensation Law,[1] determined that the car accident was compensable because Straub was on his way to a doctor's appointment due to injuries received during the first work-related incident. The trial court did not find sufficient evidence that Straub's shoulder injuries stemmed from a work-related accident, but did find sufficient evidence that his left hip, lower back, and left lower leg were injured. The trial court found that Straub had a 35-percent loss of earning power as a result of the accidents. The trial court then awarded $600 to Straub for 1 3/7 weeks for total temporary *889 disability and $229.21 per week for 298 4/7 weeks for a 35-percent loss of earning power. Appellants were also ordered to pay medical expenses for or on behalf of Straub, or to reimburse Straub or his health care provider.

Appellants appealed the decision of the trial court, and the three-judge panel of the Workers' Compensation Court issued an order of affirmance on review. Appellants appeal from that order, and we affirm the award.

ASSIGNMENTS OF ERROR

Appellants assign, restated and consolidated, that the trial court erred in determining that (1) the accident on August 7, 2006, occurred within the scope and course of Straub's employment, (2) Straub had a 35-percent loss of earning capacity, and (3) the DVD of the first accident shows that Straub's left hip was injured.

STANDARD OF REVIEW

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.[2]

In workers' compensation cases, an appellate court is obligated to make its own determinations regarding questions of law.[3]

ANALYSIS

STRAUB'S INJURIES on AUGUST 7, 2006, WERE COMPENSABLE

Appellants first argue that Straub's injuries on August 7, 2006, were not compensable injuries because they did not arise out of and in the course of his employment. The record indicates that after Straub's first accident, his orthopedist ordered an MRI to be administered at a Scottsbluff hospital. Straub was not working on the day of the appointment, and he drove from his house to the babysitter's house to drop off his children before driving to the hospital. The second accident occurred on the way to the hospital from the babysitter's house.

The trial court cited Kraus v. Jones Automotive, Inc.,[4] for the proposition that a trip serving a dual purpose was still compensable under certain circumstances. The dual purpose rule provides:

[I]f an employee is injured in an accident while on a trip which serves both a business and a personal purpose, the injuries are compensable as arising out of the course and scope of employment provided the trip involves some service to be performed on the employer's behalf which would have occasioned the trip, even if it had not coincided with the personal journey.[5]

In Kraus, the Court of Appeals held that a plaintiff who had been on a business trip from Omaha, Nebraska, to Lincoln, Nebraska, was acting within the course and scope of his employment even though he had embarked on a private errand. The record demonstrated that the plaintiff had driven from Lincoln toward Grand Island, Nebraska, on a personal errand, but had turned around and was returning to Omaha when he was killed in a one-vehicle accident.[6]

*890 The trial court also cited Larson's Workers' Compensation Law § 10.07, "Accident During Trip to Doctor's Office,"[7] which states that an accident occurring on a trip to a doctor's office or a place of testing ordered by the doctor is generally compensable if the original injury was also compensable. The trial court also pointed out that the Workers' Compensation Court routinely orders payment for mileage to and from doctor's visits and testing.

We have specifically declined to address this issue in the past.[8] And while some courts have rejected the rule found in Professor Larson's treatise,[9] other courts have allowed workers to recover for injuries sustained on the way to a medical appointment for a compensable injury.[10] We find Taylor v. Centex Construction Co.

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Cite This Page — Counsel Stack

Bluebook (online)
784 N.W.2d 886, 280 Neb. 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/straub-v-city-of-scottsbluff-neb-2010.