Lenz v. Central Parking System of Neb.
288 Neb. 453
| Neb. | 2014Background
- Lenz developed frostbite to his right foot while working as an outdoor parking attendant on December 20, 2008; Central voluntarily paid some medical and temporary disability benefits through mid-2009.
- Lenz moved to Colorado in 2009, continued treatment there (submitting bills to an indigent care program), and returned to Nebraska in February 2012 for ongoing wound care.
- In October 2012 an infection reached the fifth metatarsal (bone) of his right foot and a partial amputation of the fifth metatarsal was performed on October 31, 2012.
- Lenz filed a workers’ compensation petition on January 2, 2013 seeking additional temporary and permanent partial disability benefits and medical reimbursement; Central asserted the petition was time barred under Neb. Rev. Stat. § 48-137.
- The Workers’ Compensation Court held the petition was time barred as to claims before the amputation but timely as to benefits arising from the October 2012 bone infection and partial amputation, awarding 30 weeks at 20% impairment and related medical reimbursement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lenz’s petition was time barred under § 48-137 | Lenz invoked the White exception: he filed within 2 years of a material change (bone infection and amputation) and increased disability | Central argued the White exception is unenforceable (per Bassinger reasoning) or, alternatively, no material/substantial change occurred and Lenz could have sued earlier | Petition timely as to benefits accruing after Oct 2012; White exception remains valid and applies to Lenz’s amputation-related claims |
| Whether the White v. Sears exception to § 48-137 remains good law | N/A (relies on precedent and legislative inaction) | Central argued recent precedent undermines White and that equitable defenses cannot create exceptions | Court reaffirmed White: legislative acquiescence means the exception stands; White is statutory interpretation, not an equitable defense |
| Whether the October 2012 infection/amputation was a "material change" and produced a "substantial increase in disability" | The bone infection and partial amputation materially worsened the condition and produced at least 20% foot impairment per Dr. Black | Central contended the 2012 events were continuation of chronic ulcer problems and not a new material worsening, and Lenz could have filed earlier | Held that the bone infection (distinct from recurring ulcers) and partial amputation were a material change producing a substantial increase in scheduled-member disability (20% to right foot) |
| Whether the compensation award should be disturbed on appeal | Lenz did not cross-appeal on preamputation benefits; Central challenged timeliness only | Central sought reversal on statute-of-limitations grounds | Court affirmed; did not reexamine the benefit calculation because Central’s appeal focused on timeliness and other challenges were not properly argued |
Key Cases Cited
- White v. Sears, Roebuck & Co., 230 Neb. 369 (establishes that a petition filed within 2 years of a material change in condition and substantial increase in disability is timely)
- Bassinger v. Nebraska Heart Hosp., 282 Neb. 835 (limits use of equitable defenses in workers’ compensation context; distinguishes equitable defenses from statutory exceptions)
- Snipes v. Sperry Vickers, 251 Neb. 415 (discusses § 48-137 exceptions, including latent/progressive injuries)
- Risor v. Nebraska Boiler, 277 Neb. 679 (explains scheduled-member disability is based on loss of use of the body part, not lost earning capacity)
- Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526 (recognizes and applies White exception post-White; legislative inaction construed as acquiescence)