Increase in Benefits on Appeal: Witte v. Helget Gas Products

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Jeff Putnam

Jeff is a workers' compensation attorney located in Omaha, Nebraska.

The plaintiff suffered two separate work-related injuries, but an initial ruling did not properly establish insurance company coverage relating to the dates of the accidents, nor did it take into account medical opinion regarding permanent impairment to her left shoulder. The case was remanded in part to address these errors and recalculate her workers’ compensation benefits.

Increase in Benefits on Appeal: Witte v. Helget Gas Products



DOC: 204 NO: 1739



Plaintiff: Jeffrey F. Putnam

6790 Grover Street, Suite 250

Omaha, NE 68106-3612

Defendants: Thomas B. Wood

Wolfe, Snowden, Hurd, Luers & Ahl

Suite 800, Wells Fargo Center

1248 O Street

Lincoln, NE 68508-1424

James D. Hamilton

Baylor, Evnen, Curtiss, Grimit & Witt

Wells Fargo Center

1248 ‘O’ Street, Suite 600

Lincoln, NE 68508

THIS MATTER came on for a review hearing before a panel of the Nebraska Workers’ Compensation Court at Omaha, Douglas County, Nebraska, on August 15, 2006, on the Applications for Review of the defendants filed March 1, 2006, and the cross-appeal filed by the plaintiff alleging errors in the Award entered on February 15, 2006, by Judge Michael P. Cavel and upon the written briefs and oral arguments of the parties.


While the respective Applications for Review filed by each of the defendants cite numerous alleged errors, the review panel believes that certain errors or omissions committed by the trial court compel a remand. That remand requires that the trial court consider issues which arguably effect the other assignments of error urged by each of the defendant insurers. Thus, not all of the issues properly raised and briefed on appeal need be addressed at this point.


As a matter of initial concern, the review panel observes that there was no express finding by the trial court regarding whether or not the defendant insurers provided workers’ compensation coverage to the defendant employer on the date of the accidents alleged. The Amended Petition filed by the plaintiff clearly sets forth allegations that CNA Insurance provided coverage to the defendant employer relative to the alleged accident date of July 23, 2002 (T5). With respect to General Casualty Company of Wisconsin, a similar assertion is made regarding the alleged April 13, 2004, accident (T7). Each of the defendant insurers filed Answers denying the allegations made by the plaintiff (T9-10) (T11-12). Hence, the issue of whether or not the respective insurance companies provided coverage on the dates of the alleged accidents as well as any corresponding liability to pay benefits was in issue. Additionally, it seems clear to the panel that the relationship relative to the issue of coverage and liability ran not only to the plaintiff but to each other as each insurer asserts on appeal that the other was liable (T42) (T32).

While the trial court ultimately wrestled with the issue of which insurer ought to bear liability (T23) (Supplemental Transcript, p. 5), the trial court made no finding in its Award on the issue of coverage. The pleadings clearly indicate that the rights and liabilities of the various parties were in contest.

Given that the trial judge did not expressly reserve ruling on the matter, the Award was final and thus appealable. The omission constituted, in essence, a denial of plaintiff’s allegations regarding insurance coverage. See generally Dawes v. Wittrock Sandblasting & Painting, Inc., 266 Neb. 526, 667 N.W.2d 167 (2003). Under Wittrock, supra, the judge’s omission in this regard, while not fatal to the finality of the award, constituted error requiring a remand under Rule 11 of the Rules of Procedure of the Nebraska Workers’ Compensation Court. That rule provides:

All parties are entitled to reasoned decisions which contain findings of fact and conclusion of law based upon the whole record which clearly and concisely state and explain the rationale for the decision so that all interested parties can determine why and how a particular result was reached. The judge shall specify the evidence upon which the judge relies. The decision shall provide the basis for a meaningful appellate review.

Given the lack of any discussion regarding coverage and the respective liability of the defendant insurers as to the accident dates alleged, the review panel is unable to conduct a meaningful appellate review given the failure of the judge to clearly determine the issue presented. Hence, a remand is necessary for the trial judge to formally rule on the issue of which insurance carrier provided coverage on the alleged dates of accident and to address the liability of each carrier for benefits awarded.


The review panel also believes that a remand is required owing to what it perceives to be a contradiction in the findings made by the trial court relative to the loss of earning capacity suffered by the plaintiff vis-à-vis the alleged accidents of July 23, 2002, and April 13, 2004. The following excerpt from the Award highlights the confusing nature of the findings detailed therein:

Although the plaintiff had received disability ratings to her body as a whole after July 23, 2002, and before April 13, 2004, no physician had expressed any opinion that she was impaired in any particular way or was obliged to observe any permanent restrictions. There is thus no basis for the Court to award any permanent loss of earning power. In a letter to plaintiff’s counsel dated March 1, 2005, Dr. Puccioni notes that the plaintiff’s arthritis was aggravated on April 13, 2004, and he suspects that her restrictions are more based on that than apparently her first accident. He goes on to state, however, that the plaintiff was not perfect prior to her accident of April 13, 2004, and arguably restrictions could have been placed upon her prior to April 13, 2004, but he says nothing about what such restrictions would have been. The Court finds that the plaintiff is permanently and totally disabled as a result of her two accidents in question. The Court is unable to determine how much earning power loss the plaintiff suffered as a result of each accident (Supplemental Transcript, p. 5) (italics provided).

The contradiction and ambiguity is evident as one reads the italicized portions of the Award reverenced above. On the one hand the trier of fact arguably indicates that there was no basis upon which to award a loss of earning power occasioned by the July 23, 2002, accident. Yet, within the same paragraph the trial court found the plaintiff to be permanently and totally disabled as a result of both of the accidents in question.

While the trial court may well have had a reason in mind for reaching such a conclusion, the reader is left to ponder what is clearly an ambiguity given the written words utilized. As observed by the Nebraska Supreme Court in Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57 (1998), “neither party should prevail on the basis of an ambiguity” (254 Neb. at 695). Consequently, a remand is necessary so that the trial court can enter an order complying with the requirements of Rule 11 and thus provide a basis for a meaningful appellate review.


Finally, the review panel finds no merit in the error asserted contending that the trial court was free to consider the medical opinions of the medical examiner previously appointed by the Court as the record before us does not allow for a meaningful review of this issue. It is the understanding of the review panel that the trial judge solicited the opinions of the appointed medical examiner for purposes of assisting the Court in determining which permanent restrictions were necessitated by which accident. [Presumably the assignment of restrictions to each accident would have been an asset to the trial court in establishing plaintiff’s lost earning capacity from each accident.] However, upon the motion of the defendant, General Casualty Insurance Company (T21), the trial court struck the opinion of the appointed medical examiner believing it to be violative of Neb. Rev. Stat. § 48-120 (T23). The report detailing the medical findings is not actually before the panel and thus its contents are unknown. Whether the opinions set forth therein might compel a different decision by the panel is, therefore, unknown. The lack of a record in this regard prevents the review of this assigned error.


The various other assignments of error (as discussed in the briefs filed by the defendants), whether considered individually or globally, all seem to be somewhat dependent in one manner or another upon the ultimate findings of the trial court after remand. Consequently, the panel defers consideration of these errors (if necessary) pending further decision by the trial court upon remand.


In her cross-appeal, the plaintiff has asserted that the trial court erred in not allowing temporary total disability benefits following the April 13, 2004, accident. In support of her position the plaintiff recounts in her brief that she missed time from work after April 13, 2004 and that there are medical records excusing the plaintiff from work for those various periods of time following April 13, 2004.

While acknowledging the existence of the testimony of the plaintiff and the various medical records to that effect, the trial court declined to award temporary disability benefits owing to the lack of an expert opinion indicating that the missed time from work was a result of the accident of April 13, 2004 (Supplemental Transcript, p. 4). Given that plaintiff’s treating physician, Dr. Gross, does relate plaintiff’s left shoulder injury to the accident of April 13, 2004 (E3, p. 36), and provided plaintiff with an off work slip for the left shoulder injury (E3, p. 22), the trial court ought to reconsider its conclusion. The review panel believes that the plaintiff’s assertion of error does find support in the record.


In her last assigned error, the plaintiff contends that the trial court erred in not awarding permanent partial disability benefits for the scheduled member injury she suffered in the April 13, 2004, accident. In addressing the plaintiff’s claim for such benefits, the trial court indicated that there was no opinion from any physician indicating that any such impairment existed and, thus, declined to award any permanent disability benefits (Supplemental Transcript, p. 4).

The plaintiff in her brief directs the review panel’s attention to the report of Dr. Gross of September 14, 2005, wherein he indicated that the plaintiff suffered a five percent impairment rating to her left upper extremity owing to the April 13, 2004, incident (E3, p. 36). The existence of such an opinion clearly runs counter to the conclusion of the trier of fact that no opinion from any physician existed regarding the subject of permanent impairment to a scheduled member. Consequently, the matter must be remanded to the trial court so that a consideration of Dr. Gross’ opinion may be undertaken.

IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED that the Award entered by Judge Michael P. Cavel on February 15, 2006, ought to be remanded, in part, as noted above.

IT IS FURTHER ORDERED that as the panel is unable to ascertain at this point whether or not the defendants have secured a reduction in the amount of benefits owed to plaintiff or whether the plaintiff has or will obtain an increase in her benefits, any award of an attorney’s fee would be speculative and premature at this point.

Dated at Lincoln, Lancaster County, Nebraska, on this 27th day of February, 2007.


/s/John R. Hoffert


/s/J. Michael Fitzgerald


/s/ James R. Coe


About Jeff

Jeffrey F Putnam is a personal injury attorney and workers’ compensation attorney located in Omaha, Nebraska. If you have head, neck, or back injuries from your job or an auto accident, call today.

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