Martinez v. CMR Constr. & Roofing of Texas
302 Neb. 618
Neb.2019Background
- CMR Construction & Roofing of Texas, LLC subcontracted a roof repair project in Omaha to Rene Menjivar; Menjivar’s employee Juan Martinez fell on March 12, 2015, suffering serious injuries.
- Menjivar previously had a Texas Mutual workers’ compensation policy that was canceled December 16, 2014; CMR required proof of insurance and to be listed as additional insured but did not verify the policy status immediately before the March 2015 project.
- Martinez sued in the Nebraska Workers’ Compensation Court seeking benefits; the compensation court found CMR was a statutory employer under Neb. Rev. Stat. § 48-116 and jointly liable for benefits.
- The court awarded temporary total disability, permanent partial disability based on an 80% loss of earning capacity, medical expenses, future medical care limited to neck treatment, and attorney fees for unpaid medical bills.
- Texas Mutual moved to dismiss for lack of personal jurisdiction; the compensation court dismissed Texas Mutual, and that dismissal was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CMR is a statutory employer under § 48-116 | Martinez: CMR is statutory employer because subcontractor’s employees were uninsured and CMR created/used a scheme to avoid liability | CMR: Took requisite steps (contractual requirement, verification, added as additional insured) so exemption applies | CMR is a statutory employer; CMR admitted creating a scheme and failed to ensure valid Nebraska-authorized coverage |
| Proper loss of earning capacity (degree of permanent disability) | Martinez: 80% loss due to whole-body impairments and vocational evidence | CMR: Martinez works similar lighter jobs and earns comparable wages, so 80% is excessive | 80% loss upheld; findings not clearly erroneous under § 48-121 factors |
| Award of attorney fees under § 48-125 | Martinez: Fees appropriate because employer refused/failed timely payment; award reviewable on final appeal | CMR: Reasonable controversy existed so fees improper; also argued interlocutory appeal timing/jurisdiction | Award of attorney fees affirmed; order was not a final appealable determination earlier and no reasonable controversy justified denying fees |
| Entitlement to future medical care | Martinez: Needs ongoing neck treatment (injections, therapy, pain specialist) | CMR: Martinez reached MMI and returned to work, so future care not warranted | Future medical care for neck affirmed as reasonably necessary under § 48-120(1)(a) |
| Personal jurisdiction over Texas Mutual | Martinez: Texas Mutual insured parties who work across state lines; contacts supported jurisdiction | Texas Mutual: Insurer of Texas risks only, not authorized in Nebraska, no Nebraska contacts or payments | Dismissal for lack of personal jurisdiction affirmed; no general or specific contacts with Nebraska established |
Key Cases Cited
- Buckingham v. Creighton University, 248 Neb. 821 (statutory standard of review for compensation court awards)
- Hull v. Aetna Ins. Co., 247 Neb. 713 (deference to compensation court factual findings)
- Rogers v. Hansen, 211 Neb. 132 (contractor joint/several liability under § 48-116)
- Hiestand v. Ristau, 135 Neb. 881 (contractual insurance requirement context)
- Sidel v. Travelers Ins. Co., 205 Neb. 541 (four-factor test for loss of earning capacity)
- Snyder v. IBP, Inc., 235 Neb. 319 (injuries to the body as a whole compensated via loss of earning capacity)
- Craig v. American Community Stores Corp., 205 Neb. 286 (definition of total disability)
- Jacobitz v. Aurora Co-op, 287 Neb. 97 (when interlocutory compensation orders are appealable)
- Thompson v. Kiewit Constr. Co., 258 Neb. 323 (workers’ compensation as a special proceeding)
- Brunkhardt v. Mountain West Farm Bureau Mut. Ins. Co., 269 Neb. 222 (contacts required for insurer personal jurisdiction)