Bower v. Eaton Corp.
301 Neb. 311
| Neb. | 2018Background
- John Bower, a relief operator for Eaton, injured his right shoulder at work on September 30, 2013; he underwent nonoperative care and four surgeries through December 2015. Eaton initially denied compensability and later accepted most surgeries after an IME.
- Bower reached maximum medical improvement in June 2016 and an independent examiner (Dr. Morrison) assigned a 12% right upper extremity impairment; a physician assistant for Bower’s surgeon provided a 15% impairment report unsigned by the supervising MD.
- Eaton voluntarily paid certain benefits in August 2016 (temporary total and permanent partial benefits) but disputed compensability earlier; it discharged Bower in September 2016 citing inability to accommodate restrictions.
- Bower petitioned for additional benefits: higher impairment rating or whole-body award, out-of-pocket and future medical expenses, waiting-time penalties, vocational rehabilitation, vacation/time reimbursement, and wrongful discharge relief; Eaton/insurer cross-appealed attorney fees and vocational rehab award.
- The Workers’ Compensation Court awarded: 12% upper-extremity permanency (based on Morrison), limited waiting-time penalty tied to December 2015 surgery, no out-of-pocket or future medical expenses, vocational rehabilitation services, $7,500 attorney fees; it declined jurisdiction over private disability reimbursement and wrongful termination claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate permanent impairment rating (12% v. 15%) | Bower: accept PA’s 15% rating | Eaton: rely on IME (Morrison) 12% and object to PA report under rule 10 | Court affirmed 12%; PA report unsigned by MD not entitled to weight under rule 10 |
| Scheduled member v. whole-body impairment | Bower: shoulder effects produced whole-body impairment/loss of earning capacity | Eaton: residual impairment confined to right upper extremity | Court: no competent evidence of whole-body impairment; award remains scheduled-member 12% |
| Out-of-pocket and future medical expenses | Bower: medical bills/supporting exhibits prove reimbursement and need for future injections/therapy | Eaton: contest sufficiency, reliance on conflicting/unspecified billing; IME says no further treatment needed | Court denied out-of-pocket (records inconsistent, pretrial directions unmet) and denied future medical (no explicit, reliable evidence of necessity) |
| Waiting-time penalties and attorney fees | Bower: penalties should run earlier (post-injury) | Eaton: reasonable controversy existed until IME report; limited penalty/fees appropriate | Court awarded limited waiting-time penalty tied to December 2015 surgery and $7,500 attorney fees; found reasonable controversy existed until Morrison’s report |
Key Cases Cited
- Dragon v. Cheesecake Factory, 300 Neb. 548 (appellate standard and vocational rehab principles)
- Anderson v. EMCOR Group, 298 Neb. 174 (vocational rehabilitation entitlement and suitable employment standard)
- Moyera v. Quality Pork Internat., 284 Neb. 963 (test for scheduled-member v. whole-body impairment)
- Ideen v. American Signature Graphics, 257 Neb. 82 (member-impairment measurement principles)
- Olivotto v. DeMarco Bros. Co., 273 Neb. 672 (Workers’ Compensation Court evidentiary latitude and rule 10 discussion)
- Johnson v. Ford New Holland, 254 Neb. 182 (requirement of compliance with rule 10 for written medical reports)
- Simmons v. Precast Haulers, 288 Neb. 480 (factors in awarding attorney fees under § 48-125)
- Bituminous Casualty Corp. v. Deyle, 234 Neb. 537 (employer liability for medical/compensation; burden of proof on claimant)