Bower v. Eaton Corp.
918 N.W.2d 249
Neb.
2018

Background

  • Employee John Bower, a relief operator, injured his right shoulder at work on Sept. 30, 2013; treated with injections, PT, and four surgeries (last in Dec. 2015). Employer Eaton initially denied compensability and did not pay benefits until after an independent medical exam (IME).
  • IME (Dr. Morrison) found a 12% permanent impairment of the right upper extremity; physician assistant (PA) report from treating clinic opined 15% (signed by PA only). Eaton paid temporary total disability and PPD based on 12% and later discharged Bower (Sept. 2016) for inability to accommodate restrictions.
  • Bower filed for workers’ compensation (seeking temporary total disability, member vs. whole-body permanency, out-of-pocket and future medicals, waiting-time penalties, vocational rehab, attorney fees, and relief on alleged retaliatory discharge and insurer reimbursement). The court: awarded TTD for one period, PPD at 12%, vocational rehabilitation, $939 waiting-time penalty (limited), $7,500 attorney fee; denied out-of-pocket and future medicals; declined jurisdiction over private-insurer reimbursement and wrongful termination.
  • The court excluded the PA-signed impairment report under W.C. Ct. R. 10 because only a physician’s signature qualifies; relied on Morrison for 12% rating.
  • Court found no whole-body impairment (residuals localized to the right upper extremity) and insufficient explicit evidence of future medical necessity. Court found a reasonable controversy existed until Eaton received Morrison’s report (so limited waiting-time penalty).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Proper permanency basis: member rating vs. whole-body loss of earning capacity Bower: injury produced whole-body impairment; award should be based on loss of earning capacity (higher recovery). Eaton: residual impairment limited to scheduled member; award should be member rating. Held: No clear error — residual impairment confined to right upper extremity; member rating appropriate.
Member impairment percentage (15% PA report vs. 12% IME) Bower: PA report supports 15% rating. Eaton: IME (physician) supports 12%; PA report not admissible under Rule 10. Held: Court properly excluded PA-only signed report under Rule 10; 12% supported by physician IME.
Admissibility of PA-signed medical reports under W.C. Ct. R. 10 Bower: PA report should be considered weighty evidence for impairment and future care. Eaton: Rule 10 requires physician signature; PA not a "physician" under rule. Held: Rule 10 requires physician signature; only supervising physician qualifies as "physician"; PA-only signature insufficient.
Future medical expenses (injections/therapy) Bower: treating clinic indicated possible future injections/therapy; award future medicals. Eaton: IME stated no additional treatment necessary beyond home program. Held: Denied — plaintiff failed to present explicit medical testimony establishing reasonable necessity for future care.
Out-of-pocket medical expenses reimbursement Bower: submitted summaries and bills showing out-of-pocket payments. Eaton: challenged sufficiency and inconsistencies in submitted expense sheets. Held: Denied — record was inconsistent and incomplete; plaintiff failed to meet burden of proof.
Waiting-time penalties (extent and start date) Bower: no reasonable controversy existed after initial treating notes (Nov 2013); penalties from earlier date. Eaton: reasonable controversy existed due to conflicting treating notes until IME; limited penalties appropriate. Held: Court did not clearly err — reasonable controversy existed until receipt of IME; limited waiting-time penalty awarded for Dec. 2015 surgery period.
Vocational rehabilitation entitlement Bower: entitled because unable to return to suitable work at Eaton and labor-market research shows lower likely wages. Eaton: argued insufficient evidence and no stipulation of entitlement. Held: Affirmed — vocational rehab reasonably necessary; court’s factual finding not clearly erroneous.
Jurisdiction over private-disability insurer reimbursement and wrongful termination Bower: these matters are ancillary and within compensation court jurisdiction. Eaton: contractual and wrongful termination claims are outside statutory jurisdiction of the compensation court. Held: Court correctly declined jurisdiction — private-insurance reimbursement and wrongful discharge are not ancillary to workers’ compensation claims.

Key Cases Cited

  • Dragon v. Cheesecake Factory, 300 Neb. 548, 915 N.W.2d 418 (Neb. 2018) (standard of review and factual determinations in WC cases)
  • Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (Neb. 2017) (vocational rehabilitation entitlement and statutory construction)
  • Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233 (Neb. 1999) (impairment measurement principles)
  • Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (Neb. 2003) (medical impairment ratings and evidence weight)
  • Johnson v. Ford New Holland, 254 Neb. 182, 575 N.W.2d 392 (Neb. 1998) (application of W.C. Ct. R. 10 and signature requirements)
  • Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (Neb. 2007) (scope of admissible medical reports under Rule 10)
  • Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (Neb. 2013) (scheduled member vs. whole-body impairment test)
  • Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (Neb. 2016) (future medical expense standards)
  • Bishop v. Speciality Fabricating Co., 277 Neb. 171, 760 N.W.2d 352 (Neb. 2009) (conversion of member injury to whole-person impairment)
  • Simmons v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (Neb. 2014) (factors for attorney-fee awards under § 48-125)
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