INBODY, Chief Judge.
Edward Tuttle appeals the determination of the Nebraska Workers' Compensation Court for failing to fully compensate him for his loss of earning capacity in his 1992 work-related injury, for concluding that the 2003 reappearance of symptoms was a recurrence and not an aggravation, and in declining to award waiting-time penalties and attorney fees.
Tuttle began his employment with Bunge Milling, Inc. (Bunge), in 1972, when the company was referred to as "Crete Mills," as a "loader" stacking 50- and 100-pound bags on a railcar. Tuttle next worked for Bunge as a "packer" filling and sealing bags of product. Thereafter, Tuttle was also employed by Bunge as a "flight cooker," "sweeper," and maintenance-section painter until 1990, when he was promoted to "maintenance mechanic."
In 1995, Tuttle returned to Dr. Reckmeyer for "evaluation and consideration for the permanency of his chronic back problem." Dr. Reckmeyer reported that Tuttle continued to suffer from back pain and occasional radiation of pain down the right leg into the thigh, calf, and foot, but that these symptoms did not bother Tuttle unless he overworked the back. Dr. Reckmeyer opined that Tuttle suffered a 20-percent whole body impairment and that no further treatment was recommended or required.
Thereafter, Tuttle's pain would flare up and Tuttle would self-treat with heat and hot showers. Tuttle testified that he seemed more susceptible to an increase in the intensity of the pain when there was cold weather. Tuttle did not see a medical provider or otherwise seek professional treatment between 1996 and 2003, although he testified that he experienced back pain "all the time" during that period. Tuttle continued to work full time for Bunge in maintenance, with the 75-pound lifting restriction, and did not miss any work during this timeframe due to back pain or problems.
On February 13, 2003, Tuttle saw Dr. Daniel Ripa with Nebraska Orthopaedic and Sports Medicine, P.C., for his continued back pain. Tuttle explained Dr. Ripa had been recommended to him, indicating that Dr. Ripa was a good back surgeon. Dr. Ripa reported that Tuttle underwent an MRI scan which revealed "some degree of degenerative disk change at L3, L4, L5." Dr. Ripa indicated that there appeared to be an abnormality of the lower three lumbar levels of Tuttle's spine and that treatment options included studying his lower back, "potentially with selective nerve blocks one at a time," and a possible surgical intervention. In December 2003, Tuttle returned to Dr. Ripa's office complaining again of low-back pain. Dr. Ripa arranged a followup MRI to see if there had been any additional change. Dr. Ripa recommended a 20-pound lifting restriction and did not know when Tuttle's symptoms would resolve.
In January 2004, Tuttle began seeing Dr. Eric Pierson with Neurological and Spinal Surgery, L.L.C., on a self-referral. Dr. Pierson conducted an examination and ordered a "myelogram/ CT." In February 2004, Tuttle reported to Dr. Pierson that his leg symptoms were improving, and at that time, Dr. Pierson indicated that Tuttle had a spur at L3 on the right which might impact the L4 nerve root, but he did not recommend any further treatment or surgery. In June 2004, Dr. Ripa opined that
In September 2004, Tuttle continued to report that he suffered from pain in his back and down the right leg. Tuttle continued to work full time for Bunge with a significant amount of lifting, but appeared to be improving when compared to his pain the year before. In January 2005, Tuttle reported suffering from some back pain and pain in the right leg as previously, but indicated to Dr. Ripa that he was feeling better than he had in the months before.
On February 22, 2005, Dr. David Durand, a certified independent medical examiner, reviewed Tuttle's medical records and opined that Tuttle had reached maximum medical improvement, assessed at a 10-percent impairment to the whole person, and, because the records indicated that Tuttle was continuing with his workload in spite of restrictions, did not recommend any continued restriction. In 2006, Dr. Durand evaluated Tuttle for continual low-back pain and opined that Tuttle was not a surgical candidate, but may wish to consider steroid injections if medication was not providing adequate relief. In December, an updated MRI was completed which indicated that Tuttle had a disk herniation at the L3-4 level in addition to foraminal stenosis at the L5-S1 level on the right side. Dr. Durand recommended that Tuttle continue to work within his 75-pound lifting restriction and also recommended that Tuttle follow up with the Nebraska Spine Center, L.L.P., for a surgical referral.
In 2007, Tuttle continued to visit various medical offices with complaints of low-back pain and pain in his legs, in addition to various other ailments unrelated to the 1992 injury. Tuttle explained that his pain had progressed in terms of both frequency and intensity. Dr. Eric Phillips with the Nebraska Spine Center indicated that he believed that Tuttle had a "failed laminectomy where a laminectomy and diskectomy was performed for back pain with very little chance for success known to exist for these types of procedures." Dr. Phillips reported that Tuttle was doing well with a prescription for Celebrex and a topical agent and recommended that this be maintained for the long term. Dr. Phillips indicated that he had no basis to make any further work restrictions and assigned Tuttle an impairment rating in the range of 10 to 15 percent.
In December 2007, Tuttle reported to Dr. Phillips a worsening of his symptoms with "significant back distress" with "considerable spasm and impairment." Dr. Phillips ordered an updated MRI and no work for Tuttle for 2 weeks. On January 16, 2008, Tuttle underwent an L4-5 transforaminal epidural in order to attempt to alleviate symptoms, after which Tuttle reported a "100% relief of typical discomfort." On January 23, Dr. Phillips released Tuttle to light-duty status of 4 hours of sedentary to light work, to increase 1 hour per week until Tuttle returned to full-time employment. Tuttle
In September 2008, Tuttle completed a functional capacity evaluation with Excel Physical Therapy. The report indicates that Tuttle originally injured his back in May 1992 and had suffered episodes, approximately one each year, of back pain until November or December 2007, when his pain increased. Tuttle displayed the ability to safely function within the "MEDIUM-HEAVY" physical demand category, but did not display the ability to perform all of the functional tasks required by his employment at Bunge. Tuttle reported that he could continue to work at his position, within his functional abilities, and the report recommends that he continue to do so if allowed. On July 31, 2008, the rehabilitation notes indicated that Tuttle's low-back pain had greatly improved and that he was no longer suffering from parathesias on his lower right extremity. A report by Dr. Magda Beauchamp with Madonna Rehabilitation Hospital indicated that Tuttle had reached maximum medical improvement and was to continue with work restrictions at a minimum level. Dr. Beauchamp placed Tuttle with permanent restrictions of maximum lifting of 50 pounds and frequent lifting or carrying of 25 pounds. Tuttle testified that he returned back to his "regular job" as a maintenance mechanic with a 50-pound lifting restriction and was able to perform his duties without any problems.
In March 2009, Bunge sent Tuttle a letter explaining that Bunge could no longer provide him with temporary light-duty work and would assist Tuttle in finding a job classification which would fit within his restrictions and that if no such job were available, Tuttle would be placed on unpaid leave. Tuttle returned to work as a sweeper.
In June 2009, Tuttle reported to Dr. Beauchamp that he had returned to work with light duties of sweeping the floor and general cleanup but had begun to experience progressive low-back pain which prevented him from returning to work. Dr. Beauchamp recommended additional physical therapy and placed Tuttle off duty from work for a week. In August 2009, Bunge notified Tuttle that temporary light-duty work could be provided to him which was within his work restrictions and that he should report to work on Monday, August 10.
On April 14, 2010, Bunge again contacted Tuttle, indicating that Bunge could provide him with a job within the most recent permanent work restrictions assigned to Tuttle as a sweeper. Bunge ordered Tuttle to report to work on Monday, April 19.
An August 2011 functional capacity report indicated that Tuttle was employable at the light-to-medium physical demand capacity. On September 30, a vocational rehabilitation counselor completed a loss of earning capacity report based upon Tuttle's work injuries from May 1992 and February 2003. The report indicates that Tuttle retained the capacity to perform tasks at the light-to-medium physical demand level and the ability to maintain a job on a full-time basis. The report concluded that if the court determined that the average weekly wage calculated by Bunge was accurate, then the counselor's vocational opinion was that Tuttle experienced a 40-percent loss of earning capacity following his "industrial injuries." However, the report further indicated that should the court accept the average weekly wage calculated by Tuttle, then the counselor's vocational opinion was that Tuttle experienced a 60-percent loss of earning capacity.
Near the end of his testimony, Tuttle explained that he and his wife lived on a farm and that since the 1980's, he had been farming. Tuttle testified that his farming ability and income earned from farming were not affected by his back problems, other than Tuttle's having to get rid of his cattle in 2003 because they were too difficult to handle.
Prior to the filing of any petition with the Workers' Compensation Court, Bunge voluntarily paid Tuttle temporary total, permanent partial, and temporary partial disability benefits in addition to medical expenses. The record indicates that no agreement, settlement, or release between the parties was executed and that no agreement or payments were submitted to or approved by any court.
On April 22, 2010, Tuttle filed a petition alleging that on May 7, 1992, he had been injured in an accident arising out of and in the course of his employment with Bunge. The petition alleged that on February 13, 2003, Tuttle stopped his work with Bunge and sought medical care for the "reappearance and worsening" of his previous symptoms. The petition indicated that Tuttle had received payment of disability benefits and medical expenses from Bunge but that temporary disability, permanent disability, other medical expenses, and vocational rehabilitation services were in dispute. Bunge filed an answer generally denying the allegations and indicating that the claim was barred by the statute of limitations. Trial was held on the matter, during which time the trial court indicated that Bunge withdrew the statute of limitations defense.
On March 20, 2012, the court entered an award relating to the issues presented in Tuttle's petition. The parties stipulated that Tuttle had been injured in an accident arising out of and in the course of his employment with Bunge on May 7, 1992. The court found that although Tuttle contended that he suffered an aggravation of the 1992 injuries on February 13, 2003, he actually suffered from a recurrence which continued to "wax and wane" until Tuttle reached maximum medical improvement on June 29, 2011. The court found that Tuttle had incurred hospital and medical expenses which had all been paid and that he was temporarily totally disabled for a total of 128 weeks for the time periods of November 15, 1993, through March 15, 1994; December 8, 1995, a single day; December 31, 2007, through January 23, 2008; and June 10, 2009, through June 29, 2011, and was entitled to receive payments therefor at a rate of $265 per week. The court found that Tuttle worked his regular job at Bunge with a full salary from April 16, 1994, through July 17, 1995, which latter date was his date of maximum medical improvement following the original injury. The court found that Dr. Reckmeyer assigned Tuttle a permanent lifting restriction of 75 pounds and established a 20-percent permanent physical impairment to the body as a whole, for which Tuttle was entitled to receive permanent partial disability payments.
The court found that following the initial accident, Tuttle was entitled to receive 2824/7 weeks of benefits for March 16, 1994, through December 7, 1995, and December 9, 1995, through August 15, 1999. The court explained that Bunge had paid Tuttle a total of 173/7 weeks' benefits for temporary
The court set forth that the central issue remaining was whether the claimed February 13, 2003, injury was the result of a recurrence or an aggravation of the original injury and found that Tuttle was suffering from a recurrence. Based upon the medical records of Drs. Phillips, Ripa, and Beauchamp and Dr. Liane Donovan with Nebraska Pain Consultants, the court found that Tuttle's increased symptomology was a recurrence of the May 7, 1992, accident from February 13, 2003, through June 29, 2009, when he again attained maximum medical improvement.
The court determined that Tuttle presented evidence that as of the date of maximum medical improvement reported by Dr. Donovan, June 29, 2011, Tuttle had a 40-percent loss of earning power and was entitled to receive an additional 20-percent loss of earning power over and above the 20-percent for which Bunge previously paid benefits in excess of 300 weeks. The court found that the additional 20-percent loss of earning power is for a partial disability which occurred after the 300 weeks of benefits already paid by Bunge. The court found that there was no claim the added percentage was present from the initial date of disability for which Tuttle was entitled to benefits from November 15, 1993, through August 15, 1999, and that the law does not allow for retroactive application of additional benefits.
With regard to any penalties, interest, and attorney fees, the court found that Bunge had underpaid Tuttle by $.08 for 2824/7 weeks of permanent partial disability and Tuttle was entitled to a 50-percent penalty in the amount of $11.30. Additionally, the court found that Bunge did not begin paying Tuttle until January 12, 1996, and that thus, he was entitled to a 50-percent penalty for 95 1/7 unpaid weeks in the amount of $3,342.84. The court also determined that Tuttle was entitled to interest on that amount. Bunge was further ordered to pay $1,200 in attorney fees and to continue to pay for future medical care and vocational rehabilitation.
Thereafter, Tuttle filed a motion for reconsideration alleging that Tuttle was entitled to a second 300-week period of permanent partial disability benefits because Bunge had underpaid those benefits at a 20-percent loss of earning capacity instead of 40 percent as opined by the vocational rehabilitation counselor. The motion in regard to that allegation was denied, and Tuttle has now timely appealed to this court.
Tuttle assigns that the trial court erred by concluding that the 2003 reappearance of symptoms was a recurrence, by failing to fully compensate him for his loss of earning capacity attributed to the 1992 injury, and by not awarding waiting-time penalties and attorney fees in regard to Bunge's refusal to pay temporary total disability from June 10, 2009, to June 29, 2011, and the 40-percent loss of earning capacity as determined by the court-appointed vocational rehabilitation counselor.
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
Tuttle argues that the trial court erred in finding that the February 13, 2003, injury was a recurrence and not an aggravation.
Where there have been two accidents to an employee, the question of whether the disability sustained by him should be attributed to the first accident or to the second accident depends on whether or not the disability sustained was caused by a recurrence of the original injury or by an independent intervening cause. Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987). If the second injury is but a recurrence of the original injury, compensation therefor must be paid by the employer and insurance carrier at the time of the first injury. Id. The issue of causation of an injury or disability is one for determination of the trier of fact. See Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). Therefore, we must consider, under our standard of review, whether there is sufficient competent evidence to support the trial court's finding that Tuttle experienced a recurrence rather than an aggravation. See Parks v. Marsden Bldg Maintenance, supra.
In Mendoza v. Omaha Meat Processors, 225 Neb. at 782, 408 N.W.2d at 287, the Nebraska Supreme Court set forth the distinction between an aggravation and a recurrence as follows:
Quoting 4 Arthur Larson, The Law of Workmen's Compensation §§ 95.22 and 95.23 (1987).
In this case, the parties stipulated that Tuttle suffered a work-related accident and injury in 1992 arising out of and in the course of his employment with Bunge. On July 17, 1995, Dr. Reckmeyer determined that the 1992 injury resulted in a 20-percent impairment rating to Tuttle's body as a whole. From 1996 through 2003, Tuttle testified, he continued to experience pain, but he did not seek further medical treatment and did not miss any work during that time. In February 2003, there was not a second accident or injury,
In 2005, Dr. Durand opined that Tuttle had reached maximum medical improvement and recommended that Tuttle continue to work without the 75-pound lifting restriction assessed as a result of the 1992 injury. Dr. Phillips' reports indicate that Tuttle presented to his clinic for pain related to the 1992 accident for back pain and low-right-extremity pain. Dr. Phillips opined that Tuttle had a
Dr. Phillips indicated that Tuttle should have no additional work restrictions and an impairment rating for the failed surgery of 10 to 15 percent.
Because there was no evidence of a second accident or injury to Tuttle in 2003, we conclude that the trial court was not clearly wrong in finding that Tuttle suffered a recurrence of the May 1992 injury, rather than an aggravation. This assignment of error is without merit.
Tuttle argues that the trial court erred by failing to fully compensate him for the May 7, 1992, injury. The vocational rehabilitation specialist opined that based upon Tuttle's restrictions in 2011, he had a 40-percent or 60-percent loss of earning capacity, which the trial court determined to be 40 percent. Tuttle contends that although he was already compensated for 300 weeks of permanent partial disability at a 20-percent loss of earning capacity, he was entitled to an additional 20-percent loss of earning capacity and, thus, should be paid a second set of 300 weeks of permanent partial disability benefits to bring his compensation up to the 40-percent loss of earning capacity. Bunge argues that the plain language of Neb.Rev. Stat. § 48-121(2) (Reissue 2010) prevents Tuttle from recovering permanent partial disability benefits in excess of 300 weeks.
A determination as to an injured worker's loss of earning capacity is a question of fact to be determined by the Workers' Compensation Court. Ladd v. Complete Concrete, 13 Neb.App. 200, 690 N.W.2d 416 (2004).
Section 48-121(2), regarding compensation for partial disability, provides that "compensation shall be paid during the period of such partial disability but not beyond three hundred weeks." It is undisputed that in this case, Tuttle was compensated by Bunge for permanent partial disability for 300 weeks at a 20-percent loss of earning capacity originally determined by Dr. Reckmeyer in 1995.
In its award, the trial court specifically found that evidence had been presented which indicated that at the date of maximum medical improvement on June 29, 2011, Tuttle had a 40-percent loss of earning power. The court then determined,
As a statutorily created court, the compensation court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute. Stueve v. Valmont Indus., 277 Neb. 292, 761 N.W.2d 544 (2009).
What makes this case particularly difficult is the unique nature of the circumstances, such that Tuttle was injured in 1992 and Bunge voluntarily paid temporary and permanent partial disability benefits without any involvement from the Nebraska Workers' Compensation Court, which leaves us with the question of whether Tuttle's petition is an original application for workers' compensation benefits under Neb.Rev.Stat. § 48-101 (Reissue 2010) or a petition for modification under Neb.Rev.Stat. § 48-141 (Reissue 2010).
The April 2010 petition filed by Tuttle appears to be an original application for compensation, although the petition clearly alleges that Tuttle suffered an injury in 1992, and again in 2003, and had received payment of disability benefits from Bunge, which would make the petition one for modification. Section 48-141 provides for modification of an award and provides that
Neb.Rev.Stat. § 48-136 (Reissue 2010) provides that interested parties may settle all matters of compensation between each other, but that any agreement must be in accordance with the Nebraska Workers' Compensation Act. At oral argument, Tuttle argued that there was no voluntary agreement or prior settlement with regard to the previously paid benefits because the agreement was not in writing. In 2009, § 48-136 and Neb.Rev.Stat. § 48-140 (Reissue 2010) were amended to delete the requirement that a copy of the settlement be filed with and approved by an order of the court. Prior to these amendments, the Nebraska Supreme Court and this court construed §§ 48-136 and 48-140 as rendering void and of no effect settlement agreements not in writing and not filed in and approved by the Workers' Compensation Court. See, Duffy Brothers Constr. Co. v. Pistone Builders, Inc., 207 Neb. 360, 299 N.W.2d 170 (1980); James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977); Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949); Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810 (1943); Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935). Compliance with the provisions of §§ 48-136 and 48-140, including approval by the Workers' Compensation Court, was required for any settlement agreement. See Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).
At first glance, the removal of that specific language appears to have changed the
Section 48-139 now creates two classes of binding settlements of workers' compensation claims: (1) those that must be filed with and approved by the compensation court and (2) those that are settled simply by a verified release that is then filed with the compensation court. Section 48-139(1)(a) sets forth five situations in which the settlement must be filed with and approved by the compensation court, for example, when the employee is not represented by counsel. Otherwise, a binding settlement can be created by simply filing with the compensation court a verified release containing certain statutorily specified recitals, and in such situations, no approval of the court is required.
In sum, while the previous language of §§ 48-136 and 48-140 requiring submission to and approval by the compensation court has been removed, compliance with the Nebraska Workers' Compensation Act is still required and § 48-139 defines the situations in which court approval is required, and in all others a signed verified release filed with the court which creates a binding settlement. Therefore, we find that in compliance with the act, submission to and approval by the compensation court are still required to create a binding settlement, but only in the factual situations specified in § 48-139(1)(a).
The record in this case does not contain any agreement in writing, nor was any agreement submitted to and approved by the compensation court. Therefore, there is no agreement which the court could modify and Tuttle's petition is an original application for workers' compensation benefits in which the trial court is well within its authority to make a determination as to Tuttle's entitlement, if any, to workers' compensation benefits and award benefits in accordance with such determination.
The parties stipulated that Tuttle suffered an accident on May 7, 1992, arising out of and in the scope of his employment with Bunge. The trial court determined that Tuttle suffered a 40-percent loss of earning capacity when he reached maximum medical improvement on June 29, 2011. Therefore, we find that Tuttle is entitled to 300 weeks of permanent partial disability at a 40-percent loss of earning capacity and that the trial court did not err in making such a determination.
The trial court did, however, err by denying the award of any additional benefits above the 20-percent loss of earning capacity, and, as such, we reverse the trial court's determination on that particular issue and remand the matter with directions for the trial court that Tuttle is entitled to receive from Bunge 300 weeks of permanent partial benefits, less 173/7 weeks of temporary total disability Tuttle initially received, for a total of 2824/7 weeks of partial permanent disability benefits with a 40-percent loss of earning capacity. Since the increase in incapacity is the result of a
Tuttle argues that the trial court erred by not awarding waiting-time penalties and attorney fees for Bunge's refusal to pay temporary total disability for June 10, 2009, through June 29, 2011, and for the 40-percent loss of earning capacity. Bunge argues that there was a reasonable controversy regarding the nature of Tuttle's disability in conjunction with other medical conditions unrelated to the May 1992 injury and Tuttle's continued work as a farmer.
Neb. Rev. Stat. § 48-125 (Reissue 2010) requires an employer to pay the 50-percent waiting-time penalty in the following circumstances: if (1) the employer fails to pay compensation within 30 days of the employee's notice of a disability and (2) no reasonable controversy existed regarding the employee's claim for benefits. See Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009). A reasonable controversy may exist (1) if there is a question of law previously unanswered by the appellate courts, 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 Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Id. Whether a reasonable controversy exists under § 48-125 is a question of fact. Manchester v. Drivers Mgmt., supra.
The trial court determined that Bunge had underpaid Tuttle by $.08 for 2824/7 weeks of permanent partial disability and that Tuttle was entitled to a 50-percent penalty in the amount of $11.30. The trial court also found that Bunge did not begin paying Tuttle until January 12, 1996, for a portion of those permanent partial disability benefits and that Tuttle was entitled to a 50-percent penalty in the amount of $3,342.84 plus interest. The trial court further ordered Bunge to pay $1,200 in attorney fees. The trial court did not address or award any further penalties or attorney fees, nor does the record indicate that any other penalties or fees were requested.
In light of our determination above that Tuttle's petition was an original application for disability benefits and that there were two opinions as to Tuttle's disability, those being the 20-percent loss of earning capacity originally imputed by Dr. Reckmeyer in 1995 and the 40-percent loss of earning capacity assessed in 2011, we find that the trial court's award of any waiting-time penalties was error. Clearly, there was a reasonable controversy which existed, and thus, no waiting-time penalties should have been awarded to Tuttle. Therefore, we reverse that portion of the trial court's order awarding Tuttle waiting-time penalties in the amounts of $11.30 and $3,342.84 plus interest.
In conclusion, we find that the trial court did not err in its determination that the February 13, 2003, claim was a recurrence and not an aggravation of the May 1992 accident and affirm that portion of the order. However, we conclude that the trial court erred by failing to award Tuttle compensation fully reflecting its original determination that Tuttle should be awarded benefits in accordance with a 40-percent loss of earning capacity, and we reverse that portion of the order and remand the matter to the trial court with directions to enter an order consistent with this opinion. Given that this case presented the trial court with a reasonable controversy, we also find that the award of waiting-time penalties was error and also reverse that portion of the trial court's award.
AFFIRMED in part, and in part reversed and remanded with directions.
