Bower v. Eaton Corp.

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Questions Presented

1. Whether the Workers’ Compensation Court clearly erred by relying on a 12-percent rather than a 15-percent permanent impairment rating for Bower’s right upper extremity.
2. Whether Bower’s shoulder injury caused a whole-body impairment warranting an award based on loss of earning capacity rather than a scheduled-member injury.
3. Whether Bower proved entitlement to reimbursement for out-of-pocket medical expenses.
4. Whether Bower proved entitlement to future medical expenses.
5. Whether the claim for reimbursement of vacation, sick, personal, and holiday time was preserved for appellate review.
6. Whether the Workers’ Compensation Court clearly erred by awarding vocational rehabilitation services.
7. Whether the Workers’ Compensation Court had jurisdiction to decide Bower’s contractual dispute concerning reimbursement of private disability payments.
8. Whether the Workers’ Compensation Court had jurisdiction to decide Bower’s wrongful-discharge claim.
9. Whether Bower was entitled to additional waiting-time penalties under Neb. Rev. Stat. § 48-125.
10. Whether the attorney-fee award was unreasonable.

Holdings

1. A written medical report offered under Workers’ Compensation Court rule 10 must be signed by a physician, surgeon, or another professional expressly listed in the rule. A physician assistant is not a physician under rule 49(O), and a report signed only by a physician assistant may be refused or given no weight.
2. The Workers’ Compensation Court did not clearly err by awarding permanent partial disability benefits based on a 12-percent impairment of Bower’s right upper extremity rather than the 15-percent rating stated in the physician assistant’s report.
3. The test for determining whether a disability is to a scheduled member or to the body as a whole is the location of the residual impairment, not the location of the original injury. Bower failed to prove that his shoulder injury caused a whole-body impairment or loss of earning power.
4. An employee must prove compensable medical expenses by a preponderance of the evidence, and an award cannot be based on contradictory evidence or speculation. The denial of Bower’s out-of-pocket medical expenses was not clearly erroneous.
5. An award of future medical expenses requires explicit evidence that future treatment is reasonably necessary to relieve the employee from the effects of the work-related injury. Bower’s evidence did not satisfy that requirement.
6. The court will not consider an issue that was not presented to or passed upon by the trial court. Bower’s claim for reimbursement of vacation, sick, personal, and holiday time was waived by omission from the joint pretrial memorandum.
7. The Workers’ Compensation Court did not clearly err in awarding vocational rehabilitation services where the injury prevented the employee from returning to suitable employment comparable to his prior work and the evidence showed rehabilitation was reasonably necessary to restore him to suitable employment.
8. The Workers’ Compensation Court lacks jurisdiction to resolve contractual disputes concerning private disability coverage that is not workers’ compensation coverage, even when the private coverage was provided through the employer.
9. A claim for wrongful discharge in retaliation for filing a workers’ compensation claim is outside the exclusive jurisdiction of the Workers’ Compensation Court and must be brought in another forum.
10. An employer avoids the waiting-time penalty under § 48-125 when it has an actual legal or factual basis for disputing the claim and refusing payment. The Workers’ Compensation Court did not clearly err in finding a reasonable controversy until Eaton received the independent medical examiner’s report.
11. The $7,500 attorney-fee award was not clearly erroneous. The amount of fees under § 48-125 is a fact determination based on the circumstances of the litigation and is not necessarily limited to work attributable to a particular unpaid bill or benefit.

Key quotations

Factual background

John J. Bower injured his right shoulder on September 30, 2013, while working as a relief operator for Eaton Corporation. The injury ultimately involved a partial rotator cuff tear and four surgeries. Eaton initially disputed that the injury was work related, later accepted compensability of the injury and most treatment after receiving an independent medical examiner’s report, and paid certain temporary and permanent partial disability benefits. Eaton discharged Bower in September 2016 because it could not accommodate his permanent work restrictions; the Workers’ Compensation Court awarded vocational rehabilitation and limited penalties and attorney fees but rejected or declined to decide several additional claims.

Procedural history

Bower filed a workers’ compensation claim after injuring his right shoulder while working for Eaton. Following trial, the Workers’ Compensation Court awarded temporary total disability benefits for the period associated with the December 2015 surgery, a waiting-time penalty, attorney fees, and vocational rehabilitation services, but denied or declined to decide several other claims. Bower appealed, and Eaton and Old Republic cross-appealed the vocational rehabilitation and attorney-fee awards. The Nebraska Supreme Court affirmed the award in all respects.