Hofferber v. Hastings UtilitiesHofferber v. Hastings Utilities
2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.
3. Jurisdiction: Venue: Words and Phrases. Jurisdiction and venue are not synonymous and interchangeable functions in litigation.
4. Jurisdiction: Words and Phrases. Jurisdiction is the inherent power or authority to decide a case.
5. Venue: Words and Phrases. Venue is the place of trial of an action—the site where the power to adjudicate is to be exercised.
6. Venue. Venue is ordinarily not jurisdictional.
7. Venue: Waiver. Unlike jurisdiction, venue is a personal privilege which, if not raised by a party, is waived unless prohibited by law.
8. Jurisdiction. Litigants cannot confer jurisdiction on a judicial tribunal by acquiescence or consent.
9. Workers’ Compensation: Jurisdiction: Venue.
10. Workers’ Compensation: Jurisdiction: Statutes. The Workers’ Compensation Court, as a statutorily created court, has only such authority as has been conferred upon it by statute, and its power cannot extend beyond that expressed in the statute.
11. Workers’ Compensation: Intent.
12. Workers’ Compensation: Proof.
13. Workers’ Compensation.
14. Trial: Judges: Presumptions. It is presumed in a bench trial that the judge was familiar with and applied the proper rules of law unless it clearly appears otherwise.
15. Workers’ Compensation.
Appeal from the Workers’ Compensation Court. Affirmed.
Dirk V. Block and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellee.
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.
GERRARD, J.
Hastings Utilities and its workers’ compensation insurance carrier, EMC Insurance (collectively EMC), appeal from a decision of the Workers’ Compensation Court refusing to dismiss Chad A. Hofferber’s petition for benefits under the Nebraska Workers’ Compensation Act (the Act).1 The primary issues presented in this appeal relate to the scope of the Workers’ Compensation Court’s authority to modify, suspend, or terminate a claimant’s right to benefits as punishment for the claimant’s uncooperative or contemptuous conduct.
I. BACKGROUND
On October 3, 2000, Hofferber was injured in an accident in Adams County, Nebraska, arising out of and in the course of his employment with Hastings Utilities. On March 7, 2002, Hofferber filed a petition in the Workers’ Compensation Court alleging that he had stepped on a manhole cover and sustained injuries to “his left foot and left side and urological injuries; abdominal injuries and severe and profound emotional injuries.”2 On April 17, 2003, the parties filed a stipulation and joint motion to dismiss, in which they agreed that Hofferber had sustained compensable injuries and was entitled to temporary total disability benefits and reasonable and necessary medical expenses. The court dismissed the cause without prejudice.
Hofferber asked that he be sent back to the Mayo Clinic for pain management. A program at the University of Nebraska Medical Center had also been considered, but Hofferber reported having had a bad experience there shortly after his accident. After some missed appointments due to illness, Hofferber was reevaluated at the Mayo Clinic on March 14, 2005. After several different treatment options were discussed, including a pelvic CT scan, Hofferber’s physician at the Mayo Clinic ultimately recommended another steroid injection and approved Hofferber to begin a 3-week Mayo Clinic pain rehabilitation program.
But Hofferber failed to schedule the injection, expressing concern about getting an injection from the Mayo Clinic instead of his surgeon. Hofferber’s surgeon had apparently suggested that another physician might not be comfortable performing an injection in close proximity to the site of the revascularization surgery. When an appointment at the Mayo Clinic was scheduled for Hofferber in October 2005, he notified his medical case manager that he could not keep the appointment because of an infection. Hofferber also expressed his concern about the injection and asked what had happened to the recommendation of a CT scan.
At this point, concerned about Hofferber’s periodic difficulty in keeping appointments at the Mayo Clinic and with his surgeon, EMC requested a signed medical release form to obtain medical records substantiating Hofferber’s reasons for not keeping his Mayo Clinic appointment. EMC stopped Hofferber’s weekly benefit payments until the signed release was provided. The evidence also suggests that Hofferber had
In addition to the recommended Mayo Clinic treatment, Hofferber’s surgeon wanted to see Hofferber for an annual followup appointment, which EMC authorized. Hofferber did not pursue either opportunity, although EMC encouraged him to do so despite Hofferber’s continuing refusal to provide EMC with a release.
On December 20, 2006, Hofferber filed a pro se petition in the Workers’ Compensation Court, alleging that he was owed past-due benefits and penalties, unpaid medical and legal expenses, vocational rehabilitation, and future medical treatment. EMC propounded interrogatories and requests for production, seeking, as relevant, information about Hofferber’s medical treatment and any outstanding medical bills. But in a telephone conversation on February 7, 2007, Hofferber told EMC’s counsel that he would not answer those discovery requests. According to EMC’s counsel, Hofferber also said he would not submit to a deposition. Hofferber did not reply to EMC’s discovery requests and called EMC’s counsel and left a profane voice mail message.
During the same time period, Hofferber’s medical case manager repeatedly contacted Hofferber on EMC’s behalf, offering to assist Hofferber in arranging resumption of medical treatment. In response, Hofferber left profane voice mail messages for his case manager.
On March 20, 2007, EMC filed a motion to compel Hofferber to respond to its interrogatories and requests for production, appear for a scheduled deposition, and avail himself of the medical treatment furnished by EMC. A hearing was held before a trial court of the Workers’ Compensation Court, at which Hofferber appeared and complained about EMC’s refusal to pay his benefits. Hofferber also suggested that EMC had refused to pay medical bills. It appears from the statements of counsel that there may have been disagreement about whether some medical expenses, such as those relating to illnesses and infections, were causally related to Hofferber’s compensable injury, although it is unclear because the disputed bills are not in the record.
The trial court directed Hofferber from the bench to comply with EMC’s discovery requests. The court also entered an April 2, 2007, written order directing Hofferber to avail himself of the medical treatment being offered. On April 26, EMC filed a motion to dismiss Hofferber’s petition, alleging that he had failed to respond to its discovery requests.
On June 1, 2007, counsel entered an appearance on Hofferber’s behalf, and EMC’s motion to dismiss was set for a hearing before the trial court on June 27. But the hearing was delayed several times, for reasons that are not apparent from the record. The hearing had been scheduled for December 19 when, on November 19, Hofferber’s counsel filed a motion to withdraw, alleging that communications with Hofferber had broken down and that Hofferber wanted counsel fired. EMC’s counsel e-mailed Hofferber to inform him of the hearing on the motion to withdraw, and Hofferber sent a profane reply.
In the meantime, after another missed appointment, Hofferber had returned to the Mayo Clinic in June and July 2007. Recommendations on Hofferber’s pain management were deferred until his recurring infections could be resolved. Followup appointments were scheduled for September, but were canceled when Hofferber was unable to make travel arrangements in time. Hofferber also failed to make a scheduled trip to follow up with his surgeon. Hofferber had been asked by the Mayo Clinic to get bacterial cultures of his infections, but did not do so. Hofferber made one return visit to the Mayo Clinic in September, but did not see most of the doctors there with whom consultation had been recommended. In December, EMC decided not to send Hofferber any more advance payments for travel expenses. In January 2008, a certified letter to Hofferber from his medical case manager, offering to schedule a pain rehabilitation program, was returned unopened, marked “Refused.”
Although it is not entirely clear from the record, counsel’s argument at the hearing seems to suggest that EMC may have resumed payment of Hofferber’s temporary total disability benefits. A letter from Hofferber’s surgeon was also submitted, suggesting that Hofferber’s other medical problems were interfering with his being seen by the surgeon. And the record suggests that Hofferber had complied with EMC’s discovery requests to some extent, although EMC complained that some of the material provided was unclear and could not be clarified because Hofferber refused to communicate with counsel.
EMC contended that Hofferber had not complied with the court’s orders to return to medical treatment or comply with discovery, so the matter should simply be dismissed. In a written order filed February 29, 2008, the trial court found that the conduct of EMC’s counsel and Hofferber’s case manager had been reasonable and that Hofferber’s conduct had been unacceptable. But the court declined to dismiss the case. Instead, the court ordered Hofferber to refrain from any abusive communications with EMC’s counsel, his medical case manager, or other employees of EMC. The court ordered Hofferber to take whatever steps were necessary to enroll in the Mayo Clinic pain rehabilitation program. EMC’s counsel was ordered to report any abusive conduct by Hofferber, and EMC was ordered to continue paying indemnity benefits.
EMC notified Hofferber’s medical case manager of the court’s order, so Hofferber’s case manager e-mailed him offering to assist in coordinating his care. Hofferber sent two replies within a few minutes of one another; the first told the case manager to stop e-mailing him, and the second was profane.
Notice of the hearing was served on Hofferber, but he did not appear or contact the court. The trial court found that Hofferber had violated the February 29, 2008, order by sending abusive e-mails to his medical case manager and unreasonably refusing to avail himself of the medical care that had been provided. In an order filed March 28, 2008, the court determined that
[t]he remedy given to this Court for contempt and for unreasonably refusing to cooperate by [Hofferber] is to terminate benefits and dismiss [Hofferber’s] petition. It is therefore, the finding of this Court that [EMC’s] responsibility under the . . . Act for payments for indemnity benefits or medical care should be terminated, and [Hofferber’s] Petition filed in this court on December 20, 2006, should be dismissed.
A year passed. On April 9, 2009, the Adams County Court appointed a guardian and conservator for Hofferber, having found clear and convincing evidence that Hofferber was an incapacitated person who lacked “sufficient understanding or capacity to make or communicate responsible decisions concerning himself, including those decisions concerning his own health, safety and financial needs.”3 On September 10, Hofferber, through his guardian and conservator, filed a “Further Petition” in the Workers’ Compensation Court, seeking reinstatement of his benefits. The petition alleged that Hofferber remained temporarily and totally disabled, that he had resumed medical treatment for his work-related injuries, and that his guardian
EMC filed a motion to dismiss the “Further Petition,” alleging that the trial court’s March 28, 2008, order terminating Hofferber’s benefits was final and that the Workers’ Compensation Court lacked jurisdiction over Hofferber’s request for further benefits. In response, Hofferber argued that the March 28 order was void because the hearing had been held in Douglas County instead of “the county in which the accident occurred,” as required by
On January 20, 2010, the trial court entered an order vacating the March 28, 2008, order. The court agreed with Hofferber that venue for the hearing that resulted in the March 28 order had been improper. The court reasoned that because Hofferber did not appear for the hearing or take part in it, he could not be said to have waived any objection to venue. So, the court concluded, the March 28 order was a nullity and the motion to show cause originally filed by EMC on March 12 remained pending for disposition.
EMC appealed to a review panel, which found that the trial court had erred in concluding that venue for the March 28, 2008, hearing was improper. The review panel held that
But the review panel also found that the trial court did not have authority under the Act to terminate Hofferber’s right to future benefits. The review panel found no authority for a trial judge of the Workers’ Compensation Court to vacate a prior order and held that although the Workers’ Compensation Court has the inherent power to punish for contempt of court,
Based on that reasoning, the review panel affirmed the trial court’s overruling of EMC’s motion to dismiss Hofferber’s petition. EMC appeals, and Hofferber cross-appeals.
II. ASSIGNMENTS OF ERROR
EMC assigns, as consolidated and restated, that the review panel erred in (1) determining that the trial court lacked authority to terminate its obligation to pay further benefits, (2) vacating the trial court’s March 28, 2008, order, and (3) failing to find that the trial court lacked jurisdiction over Hofferber’s “Further Petition.”
Hofferber assigns, as consolidated and restated, that the review panel erred in concluding the trial court’s March 28, 2008, order was not void for lack of jurisdictional venue.
III. STANDARD OF REVIEW
[1] A judgment, order, or award of the Workers’ Compensation Court may be modified, reversed, or set aside only upon the grounds that (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.4
IV. ANALYSIS
1. VENUE
[2] Before addressing EMC’s appeal, we address Hofferber’s cross-appeal, because (at least according to Hofferber) it implicates jurisdictional issues. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle
in the county in which the accident occurred, except [that a case to be tried in a county with a population of 4,000 or less and without adequate facilities may be tried in any adjoining county,6] and except that, upon the written stipulation of the parties, filed with the compensation court at least fourteen days before the date of hearing, the cause may be heard in any other county in the state.
Hofferber contends that pursuant to
[3-7] “Jurisdiction” and “venue” are not synonymous and interchangeable functions in litigation.7 Jurisdiction is the inherent power or authority to decide a case.8 Venue, however, is the place of trial of an action—the site where the power to adjudicate is to be exercised.9 Venue is ordinarily not jurisdictional.10 Unlike jurisdiction, venue is a personal privilege which, if not raised by a party, is waived unless prohibited by law.11 That is important here because no objection was made to the Douglas County hearing, nor was any appeal taken from the ruling on the order. If
[8] And
[9] The same reasoning applies here. By its terms,
[t]he argument made by the appellants has been raised before this court on several prior occasions; however, we have not yet had the opportunity to address it. In Muir v. Nebraska Dept. of Motor Vehicles,23 we held that
§ 60-6,205(6)(a) is a venue statute and that generalized objections to the method by which the hearing was being conducted were not proper objections to venue. . . . In both Davis24 and Reiter,25 we did not reach the substantive merits of the defendants’ arguments because the defendants failed to properly object to the venue of their hearings and because their subsequent participation in the hearings acted as a waiver of any objection they may have had.26
But we found that in Gracey, the appellants had properly raised the issue, so we addressed it on the merits.
Therefore, we find that the trial court erred in concluding that the March 28, 2008, order was “a nullity.” It may have been entered in error, but it was entered by a court with jurisdiction to enter it, and no appeal was taken. Nor did the court have the authority to vacate its own judgment,30 although we note that trial judges of the Workers’ Compensation Court were recently given the authority to substantively modify or change their rulings within 14 days of entry.31 We need not, and do not, address whether the review panel’s restrictive interpretation of
[10] Generally, EMC argues that the review panel erred in concluding that its motion to dismiss should be overruled. EMC contends the March 28, 2008, order was final and that it conclusively terminated Hofferber’s right to any benefits resulting from his accident. Hofferber, on the other hand, relies upon the familiar proposition that the Workers’ Compensation Court, as a statutorily created court, has only such authority as has been conferred upon it by statute, and its power cannot extend beyond that expressed in the statute.32 Hofferber contends, among other things, that the Act did not afford the trial court authority to dismiss his petition with prejudice.
Whether the trial court had such authority, however, depends to great extent on the underlying basis for terminating Hofferber’s benefits. In this case, at issue were Hofferber’s alleged failure to comply with discovery requests, his failure to avail himself of provided medical treatment, and his violation of the court’s order to refrain from abusive conduct. We examine each in turn.
(a) Discovery Requests
We note, at the outset, that Hofferber’s alleged failure to cooperate with EMC’s discovery requests did not ultimately play a role in the dismissal of his petition. As noted above, the record suggests that Hofferber eventually did comply with EMC’s discovery requests to some extent and the trial court’s March 28, 2008, order did not find a discovery violation as a basis for dismissing Hofferber’s petition. But examining the court’s authority to enforce discovery provides a useful contrast to its enforcement authority in other respects, so it merits a brief examination regardless.
The Workers’ Compensation Court’s authority to enforce compliance with reasonable discovery is as broad as that of any trial court in Nebraska, which can include dismissing a petition.33 In the examination of any witness and in requiring
But, as noted above, the trial court did not find noncompliance with discovery in its March 28, 2008, order, nor would the record seem to support such a finding. Instead, the court relied on Hofferber’s failure to avail himself of medical treatment and noncompliance with its order to refrain from abusive conduct.
(b) Failure to Cooperate With Medical Treatment
Compared to its power to enforce discovery, the compensation court’s authority to deal with a worker’s failure to cooperate with medical treatment (or vocational rehabilitation) is constrained. The Act provides that a worker who unreasonably refuses to cooperate with an employer’s medical examination may be deprived of benefits during the continuance of such refusal.38 But that provision is not at issue here. Instead, EMC relies upon
refuses to undertake or fails to cooperate with a physical, medical, or vocational rehabilitation program determined by the compensation court or judge thereof to be suitable for him or her . . . the compensation court or judge
That language, however, does not expressly provide that the court has the authority to permanently terminate an injured employee’s right to benefits under the Act. Instead,
[11] Section 48-162.01(7) reflects the same principle, except it applies when an employee’s conduct prevents his or her condition from improving. It is apparent that
So, for instance, in Lowe v. Drivers Mgmt., Inc.,40 we rejected an employer’s argument that an employee’s refusal to participate in vocational rehabilitation warranted a reduction in the employee’s benefits following a modification proceeding, because the employer had not presented evidence that had the employee participated in vocational rehabilitation, it would have prevented him from becoming permanently totally disabled. We reasoned that the employer had, among other things,
[12,13] In other words, given the purpose of the statute, and the general rule that the Act should be construed to accomplish its beneficent purposes,43
When that principle is applied in this case, it is evident that such a finding was not made. No evidence was presented that would have supported such a finding, nor was it even argued that Hofferber’s disability would have been reduced had he participated in medical treatment. (While that might seem logical, it is uncertain given the severity of Hofferber’s injuries, and a court cannot speculate as to what might have been in the absence of any evidence to that effect.44) Instead, it appears that EMC was urging the court to use
[14] We note, as did the review panel, that the trial court’s order did not explicitly state that Hofferber’s petition for
EMC also relies on another provision of
We find no merit to EMC’s reading of the statute. The language relied upon by EMC was enacted in response to this court’s decision in Dougherty v. Swift-Eckrich,46 in which we held that the Workers’ Compensation Court did not have authority to extend the completion date that its original award had specified for a worker’s vocational rehabilitation. We had reasoned that the original award had become final and that the Act did not authorize the court to correct an error in the original award.47 In response, the Legislature amended
[15] In other words, the provision at issue is simply intended to permit the compensation court to modify rehabilitation plans in response to changed circumstances following the entry of the initial plan.49 The statute cannot be read, in light of the more specific provisions of
In short,
(c) Contempt of Court
Finally, we turn to the Workers’ Compensation Court’s authority to hold a party in contempt. Hofferber relies on our decision in Burnham v. Pacesetter Corp.51 for the proposition that the Workers’ Compensation Court does not have authority to hold a party in contempt.
We concede that Burnham provides some support for Hofferber’s argument. In Burnham, the claimant was attempting to collect unpaid benefits and argued that the Workers’ Compensation Court had the authority to enforce a judgment it had entered against his employer and insurer to compel them to pay him and hold them in contempt for failing to follow that order. But we agreed with the compensation court that the claimant’s remedy was in district court, finding that the compensation court did not have authority to enforce the collection of its award or “to issue contempt citations.”52 We reasoned
And we were correct on both of those points: the Act does not vest the court with contempt authority, nor does it have inherent contempt authority. But in Burnham, we did not discuss
In particular, we noted that
“[t]he old definition of a court of record given by Blackstone is ‘that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the record of the court and are of such high and supereminent authority that their truth is not to be called in question.’”56
We also noted that a “‘court of record’” is one whose proceedings are perpetuated in writing, duly recorded by some authorized person. So, we held that “a court which is required by law to keep a permanent and written memorialization of determinations made in proceedings brought to obtain a judicial resolution of a question is a ‘court of record.’”57
Applying that holding, we noted that the Workers’ Compensation Court is charged by statute with keeping a full and true record of its proceedings58 and that the clerk of the
There is no discernible basis for distinguishing
As noted above,
To summarize: While the compensation court can dismiss a petition based upon discovery violations, no such violations were found in this case. And the compensation court is not authorized to dismiss a petition as a sanction for a party’s conduct either because an injured worker failed to cooperate with treatment or rehabilitation or as an exercise of contempt authority. So, neither of the grounds that actually were found in this case for the March 28, 2008, order dismissing Hofferber’s petition would have empowered the compensation court to dismiss his petition with prejudice and bar him from reasserting a right to benefits.
V. CONCLUSION
We find no merit to Hofferber’s argument on cross-appeal that the trial court lacked jurisdiction to enter the March 28, 2008, order in an improper venue. But we also find no merit to EMC’s arguments that the March 28 order effectively dismissed Hofferber’s claim for benefits with prejudice. Therefore, we affirm the judgment of the review panel remanding the cause to the trial court for further proceedings.
AFFIRMED.
WRIGHT, J., not participating.