Bower v. Eaton Corp.
918 N.W.2d 249
Neb.2018Background
- Employee John Bower, a relief operator, injured his right shoulder at work on September 30, 2013; treatment included injections, physical therapy, and four surgeries (last in Dec. 2015). Eaton initially refused to pay benefits until after an IME report.
- Dr. Michael Morrison (IME) rated a 12% permanent impairment to the right upper extremity; a physician assistant (PA) for treating surgeon Crockett produced a 15% impairment report signed by the PA alone.
- Eaton voluntarily paid certain temporary total disability and permanent partial benefits in August 2016 but contested compensability of the December 2015 surgery until it received Morrison’s report; Bower was discharged Sept. 1, 2016.
- The Workers’ Compensation Court awarded: 12% member impairment (relying on Morrison), temporary total disability for Dec. 2015 surgery, a partial waiting-time penalty ($939) and $7,500 attorney fees, denied out-of-pocket and future medical expenses, found vocational rehabilitation appropriate, and declined jurisdiction over private disability reimbursement and wrongful termination claims.
- Key procedural facts: Bower filed in Feb. 2015; parties’ joint pretrial memorandum omitted vacation-time reimbursement; the court warned issues not listed would be waived.
Issues
| Issue | Plaintiff's Argument (Bower) | Defendant's Argument (Eaton/Insurer) | Held |
|---|---|---|---|
| Proper impairment rating (12% v. 15%) | PA’s 15% report should be given weight; award should be 15% | Morrison’s 12% IME is controlling; PA report inadmissible under rule 10 absent physician signature | Court affirmed 12%; PA report not a rule-10 physician report and was given no weight |
| Whole-body impairment v. scheduled-member award | Shoulder injury produced whole-person impairment; award should be loss-of-earning-capacity | No competent evidence that impairment extended beyond right upper extremity | Court held no whole-body impairment; member-only award stands |
| Out-of-pocket and future medical expenses | Medical bills and PA’s opinion establish past out-of-pocket costs and possible future injections/therapy | Bills and summaries were inconsistent and incomplete; Morrison opined no further treatment needed | Court denied both: out-of-pocket claims insufficiently documented; future care not established by explicit, reliable evidence |
| Waiting-time penalty, vocational rehab, and jurisdictional limits | Waiting-time penalties should run earlier; entitled to vacation/short-term disability reimbursement; court can adjudicate insurer reimbursement and wrongful discharge | Reasonable controversy existed until IME report; pretrial waiver bars vacation claim; private-insurer reimbursement and wrongful termination are outside comp court jurisdiction | Court awarded partial waiting-time penalty only after insurer received IME; awarded vocational rehabilitation; declined to decide private-insurer reimbursement and wrongful termination claims |
Key Cases Cited
- Dragon v. Cheesecake Factory, 300 Neb. 548 (Neb. 2018) (standard of review for vocational rehabilitation and compensation-court fact findings)
- Anderson v. EMCOR Group, 298 Neb. 174 (Neb. 2017) (vocational rehabilitation entitlement and suitable employment analysis)
- Tchikobava v. Albatross Express, 293 Neb. 223 (Neb. 2016) (future medical-expense proof requires explicit medical testimony)
- Moyera v. Quality Pork International, 284 Neb. 963 (Neb. 2013) (test for whole-body impairment vs. scheduled member: location of residual impairment)
- Swanson v. Park Place Automotive, 267 Neb. 133 (Neb. 2003) (impairment ratings measure loss of physical function)
- Johnson v. Ford New Holland, 254 Neb. 182 (Neb. 1998) (Workers’ Compensation Court rule 10 evidence requirements)
- Bishop v. Speciality Fabricating Co., 277 Neb. 171 (Neb. 2009) (member-to-whole-person conversion principles)
- Simmons v. Precast Haulers, 288 Neb. 480 (Neb. 2014) (factors for awarding attorney fees under waiting-time statute)