PAULINA ESPINOZA, APPELLANT, V. JOB SOURCE USA, INC., APPELLEE.
No. S-22-207
Nebraska Supreme Court
February 17, 2023
313 Neb. 559
N.W.2d ___
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Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Rеissue 2021), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decisiononly when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. - _____: _____. Determinаtions by a trial judge of the Workers’ Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact that are clearly wrong in light of the evidence.
- Statutes: Appeal and Error. Statutory interpretation presents a question of law that an appellate court resolves independently of the trial court.
- Statutes: Legislature: Presumptions: Judicial Construction. When the Legislature enacts a law affecting an area which is already the subject of other statutes, it is presumed that it did so with full knowlеdge of the preexisting legislation and the decisions of the Supreme Court construing and applying that legislation.
- Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.
- Workers’ Compensation. The Nebraska Workers’ Compensation Act should be construed liberally to carry out its spirit and beneficent purpose of providing compensation to employeеs injured on the job.
Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge. Reversed and remanded for further proceedings.
Steven H. Howard, of Steve Howard Law, for appellant.
Eric T. Lanham and Sarah N. Boston, of McAnany, Van Cleave & Phillips, P.A., for appellee.
Danny C. Leavitt, of Salerno & Leavitt, for amicus curiae Nebraska Association of Trial Attorneys.
Dallas D. Jones, Eric J. Sutton, and Makenzie K. Falcon, of Baylor Evnen, L.L.P., for amicus curiae Nebraskans for Workers’ Compensation Equity and Fairness et al.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
PAPIK, J.
Paulina Espinoza fell at work and injured her right wrist and right elbow. In her subsequent claim for benefits, she asserted that because she sufferеd a “loss or loss of use of more than one member or parts of more than one member,” the Workers’ Compensation Court should consider awarding her benefits based on her loss of earning capacity pursuant to the third paragraph of
BACKGROUND
Espinoza‘s Injury and Claim.
Espinoza‘s employer, Job Source USA, Inc. (Job Source), assigned her to work at a bakery. One day in March 2019, while
The doctor who treated Espinoza‘s hand injuries concluded that Espinoza‘s hand and wrist injuries resulted in a 9-percent impairment of her right hand. Another doctor who performed an independent medical examination on Espinoza concluded that her elbow injuries resulted in an additional 5-percent impairment to the “upper extremity.”
Espinoza filed a petition in the Workers’ Compensation Court. From the beginning of the case, Espinoza took the position that she was entitled to an award of permanent disability benefits based on her loss of earning capacity. Job Source disagreed. Some statutory background is helpful to understanding the parties’ dispute. Accordingly, we review it here.
The statute at the heart of the parties’ dispute is
Historically, a claimant‘s loss of earning capacity was relevant to awаrds governed by
In 2007, the Legislature enacted an amendment to
If, in the compensation court‘s discretion, compensation benefits payable for a loss or loss of use of more than оne member or parts of more than one member set forth in this subdivision, resulting from the same accident or illness, do not adequately compensate the employee for such loss or loss of use and such loss or loss of use results in at least a thirty percent loss of earning capacity, the compensation court shall, upon request of the employee, determine the employee‘s loss of earning capacity consistent with the process fоr such determination under subdivision (1) or (2) of this section, and in such a case the employee shall not be entitled to compensation under this subdivision.
As we have summarized the amendment, it “provides for the loss of earning capacity at the court‘s discretion where there is a loss or loss of use of more than one member which results in at least a 30-percent loss of earning capacity.” Smith, 285 Neb. at 830, 829 N.W.2d at 720.
In this case, Espinoza sought an award based on loss of earning capacity under the language added to
At trial, Espinoza offered evidence of the medical opinions regarding her impairment described above. The parties stipulated that Espinoza would be entitled to benefits for a 13-percent loss of use of her arm if the compensation court declined to enter an award based on loss of earning capacity.
Decision of Compensation Court.
Following the trial, the compensation court entered an order addressing various issues disputed by the parties. Relevant to this appeal, the compensation court refused to consider an award based on loss of earning capacity. It concluded that “an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.” The compensation court also cited our recent decision in Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).
Having found that it lacked authority to enter an award based on loss of earning capacity, the compensation court instead, pursuant to the parties’ stipulation, awarded Espinoza benefits based on a permanent 13-percent impairment of her arm. Espinoza timely appealed.
ASSIGNMENT OF ERROR
Espinoza assigns multiple errors on appeal, but they can be effectively condensed and restated as one: She contends that the compensation court erred by concluding that an employee who sustains two injuries along the same extremity could not have sustained a loss or loss of use of more than one member or parts of more than one member for purposes of the third paragraph of
STANDARD OF REVIEW
12Pursuant to
not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 (2016). Determinations by a trial judge of the Workers’ Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact that are clearly wrong in light of the evidence. Id.
3Statutory interpretation presents a question of law that an appellate court resolves indeрendently of the trial court. Bogue v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022).
ANALYSIS
Although it takes more than a few lines of text to explain, the issue presented in this appeal is nonetheless narrow. The question is whether an employee who, as a result of the same accident, suffers a partial loss of use to the right hand and partial loss of use to the right arm has suffered a “loss or loss of use of more than one member or parts of more than one member set forth in this subdivision” for purposes of the third paragraрh of
Statutory Interpretation.
Espinoza argues that under the plain language of
which the compensation to be awarded for disabilities to specific parts of the body is set forth. Espinoza goes on to argue that because she suffered a partial loss of use of both one of her arms and of one of her hands, she suffered a loss to “parts of more than one member set forth in this subdivision.”
Job Source contests Espinozа‘s statutory interpretation. It correctly observes that the term “member” is not actually defined by the statute and that the first paragraph of
First, although
as “members” stretch back to at least 1922. See Poast v. Omaha Merchants Express & Transfer Co., 107 Neb. 516, 519, 186 N.W. 540, 542 (1922) (“[s]ubdivision 3 prescribes a schedule of compensation to be paid for the loss of various members“).
4This court‘s consistent references to the body parts listed in thе first paragraph of
5Also relevant to the statutory analysis is the fact that the pertinent language does not refer to the term “member” in isolation, but instead to “member set forth in this subdivision.” Another of our familiar principles of statutory interpretation holds that a court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014). For the phrase “member set forth in this subdivision” to have effect, the various “members” must be “set forth” somewhere in
Finally, to the extent the amici supporting Job Source‘s position contend that, of the parts оf the body listed in the first paragraph of
For the reasons we have just discussed, we find that it is at least reasonable to interpret the phrase “loss or loss of use of more than one member or parts of more than one member set forth in this subdivision” to cover a partial loss of use of both the right hand and right arm. Accordingly, the best that Job Source could hope for is a finding that the statute is ambiguous on that question. See State v. McColery, 301 Neb. 516, 522, 919 N.W.2d 153, 158 (2018) (“[a] statute is ambiguous if it is susceptible of more than one reasonable interpretation, meaning that a court could reasonably interpret the statute either way“). As we will explain, however, the identification of statutory ambiguity would not be enough for Job Source to prevail here.
Resolution of Statutory Ambiguity.
Although Job Source does not appear to expressly concede that the statutory language at issue is ambiguous, it does make some arguments that appear to be aimed at resolving statutory ambiguity. For example, it places heavy reliance on the
legislative history of the 2007 amendment to
The legislative history upon which Job Source relies is primarily statements of senators during a committee hearing and
We are not persuaded. No senator offered a comprehensive definition of which body parts count as “members” for purposes of the 2007 amendment. While the senators noted some examples of multiple-member injuries that would qualify a worker for loss of earning capacity benefits, nothing on the face of thе statute or in the legislative history suggests that the senators were setting forth an exhaustive list of all qualifying multiple-member injuries. The portions of the legislative history that Job Source relies upon simply do not shed light on whether an injury to a hand and arm on the same side is an injury to more than one member under
We are likewise unconvinced by Job Source‘s argument that we should interpret
below the knee shall be considered as equivalent to the loss of a foot, the compensation court awarded the claimant statutory benefits for 150 weeks for the loss of his foot and an additional 43 weeks of benefits for a 20-percent loss of function to his leg. On appeal, the claimant argued that the compensation court should have awarded him consecutive benefits for the total loss of his leg, the loss of his foоt, and the loss of his five toes. We rejected the argument that the claimant was entitled to receive benefits for both the loss of a foot and the loss of toes, acknowledging that “such a loss would include a loss of the toes on the foot,” but concluding that “the Legislature limited the loss to the foot.” Id. at 394, 960 N.W.2d at 306. We also found that the compensation court did not clearly err by compensating the claimant “for the functional loss of his leg that was not already accоunted for in the compensation for the loss of his foot.” Id.
Job Source argues that because the claimant in Melton could not obtain benefits for both his foot and his toes, Espinoza cannot claim disabilities to both her hand and arm. We disagree that Melton applies here. The claimant in Melton sought scheduled benefits under the first paragraph of
whether Espinoza‘s interpretation is reasonable as a matter of policy, based on our statements that “[i]n construing a statute it is presumed that the Legislature intended a sensible rather than an absurd result,” Rodriguez v. Prime Meat Processors, 228 Neb. 55, 65, 421 N.W.2d 32, 39 (1988), and that appellate courts should “reconcile different provisions of the statute[] so they are consistent, harmonious, and sensible,” Rodgers v. Nebraska State Fair, 288 Neb. 92, 101, 846 N.W.2d 195, 202 (2014). Job Source and its supporting amici contend that Espinoza‘s interpretation is unreasonable as a matter of policy because it would allow someone who has suffered relatively minor, partial impairments along the same extremity to receive an award based on loss of earning capacity, while a person who has undergone amputation at or above the elbow or knee would not be eligible.
We disagree that we should resolve statutory ambiguity in Job Source‘s favor based on its argument that Espinoza‘s interpretаtion results in an unreasonable policy. Job Source may well be correct that under Espinoza‘s interpretation, some employees who sustain relatively minor injuries to multiple members will be eligible for an award based on loss of earning capacity while other employees who suffer major injuries to only one member will not be eligible. That, however, is an inherent consequence of the Legislature‘s decision to make eligibility for an award based on lоss of earning capacity dependent on whether there was a loss or loss of use of multiple members, as opposed to a total level of impairment or some other factor. To illustrate, no one involved in this case appears to dispute that an employee who suffered a relatively minor loss of use in both arms would be eligible for a loss of earning capacity award under the third paragraph of
undisputed evidence employee had been assigned 2-percent impairment rating for one knee and 40-percent impairment rating for other knee). The fact that one can imagine a hypotheticаl case in which someone “more injured” than Espinoza will not be eligible for an award based on loss of earning capacity does not meaningfully inform the statutory interpretation question before us.
Moreover, it must be kept in mind that a finding that an employee has suffered a loss or loss of use of more than one member or parts of more than one member does not result in that employee‘s automatic entitlement to an award based on loss of earning capacity. The injuries of such an employee must also “result[] in at least a thirty percent loss of earning capacity,” and, additionally, the compensation court must exercise discretion to determine whether the scheduled member benefits to which he or she would otherwise be entitled “do not adequately compensate the employee.”
6Not persuaded by the arguments to resolve statutory ambiguity in Job Source‘s favor, we believe that another canon of interpretation comes into play.
an employee with multiple injuries along the same extremity could not have suffered a “loss or loss of use of more than one member or parts of more than one member” for purposes of the third paragraph of
CONCLUSION
Because we find that the compensation court erred in its interpretation of
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.