Zwiener w. Becton Dickinson-East
285 Neb. 735
| Neb. | 2013Background
- Zwiener, injured employee, sought temporary total disability benefits after shoulder injury from Becton Dickinson-East.
- He left Becton for Sapp Brothers for better pay; surgery diagnosis later revealed rotator cuff tear.
- Second surgery recommended; postoperative restrictions could not be accommodated by Sapp Brothers.
- Becton denied temporary total disability during recovery, arguing they would have paid light-duty wages if Zwiener remained employed.
- Court awarded temporary total disability during convalescence and ordered reimbursement of some medical bills and mileage; penalties and attorney fees were addressed on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether temporary total disability exists during post-surgical recovery | Zwiener left for better work; disability persists during recovery. | Becton would have accommodated light duty; no TTDb while off work. | Yes, TTDb award affirmed in part |
| Credit for wages paid in lieu of indemnity benefits | No waiver; benefits should reflect nonpayment due to recovery. | Wages paid would offset indemnity; credit should apply. | Credit awarded; waiting-time penalties reversed and remanded for proper calculation |
| Attorney fees and waiting-time penalties | Fees justified for late medical bills and related work. | Credit error affects fee calculation; penalties improper without credit. | Remand for redetermination of attorney fees tied to untimely medical bills; penalties reversed |
| Admissibility of letters and exhibits (hearsay/foundation) | Letters show willingness to work light duty; admissibility challenged. | Exhibits improper evidence; hearsay/foundation concerns. | No reversible error; exhibits analyzed on remand under Harmon guidance |
| OrthoWest medical bills timeliness under § 48-125 | OrthoWest bills untimely; should affect fee under § 48-125. | Only one delinquent bill contested; fees limited accordingly. | Remand to determine timeliness and apply Harmon standards |
Key Cases Cited
- Guico v. Excel Corp., 260 Neb. 712 (2000) (termination or reason irrelevant to disability determinations; liberal act construction)
- Manchester v. Drivers Mgmt., 278 Neb. 776 (2009) (at-will employment; light-duty considerations and disability benefits)
- Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459 (1990) (disability and earning capacity standards in Nebraska WC law)
- Anderson v. Cowger, 158 Neb. 772 (1954) (early disability/earnings framework cited by court)
- Godsey v. Casey's General Stores, 15 Neb. App. 854 (2007) (appellate-level treatment of WC evidence and fees)
- Harmon v. Irby Constr. Co., 258 Neb. 420 (1999) (fee calculations tied to unpaid medical bills under § 48-125)
- Veatch v. American Tool, 267 Neb. 711 (2004) (evidence-admission discretion and due process standards)