ALLEN MICHAEL LEWIS, APPELLEE AND CROSS-APPELLANT, V. MBC CONSTRUCTION CO., INC., AND CAROLINA CASUALTY INS. CO., APPELLANTS AND CROSS-APPELLEES.
No. S-20-728
Nebraska Supreme Court
July 16, 2021
309 Neb. 726
Nebraska Supreme Court Advance Sheets. 309 Nebraska Reports. LEWIS v. MBC CONSTR. CO.
Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), a judgment, order, or award of the 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.- ____: ____. On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.
Appeal from the Workers’ Compensation Court: JULIE A. MARTIN, Judge. Vacated and remanded with directions.
Daniel P. Lenaghan and Christine E. Westberg Dorn, of Sodoro, Mooney & Lenaghan, L.L.C., for appellants.
Justin High and Erin N. Fox, of High & Younes, L.L.C., for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
NATURE OF CASE
Allen Michael Lewis was injured in the course of his employment with MBC Construction Co., which injury ultimately resulted in the amputation of his left leg. This case arises from Lewis’ request for MBC Construction Co. and Carolina Casualty Ins. Co. (collectively MBC) to build accessible housing for him. The compensation court rejected Lewis’ proposal for a four-bedroom, three-garage accessible house, but found certain accessibility features reasonable, necessary, and required due to the nature of Lewis’ injury. It ordered MBC to modify an existing home or potentially build a unit to meet Lewis’ accessibility requirements. MBC appeals, and Lewis cross-appeals. Because of ambiguity in its order, we conclude that the compensation court‘s order did not provide a meaningful basis for appellate review of its order regarding alternative accessible housing, and accordingly, we vacate the order and remand the cause with directions to enter an order in compliance with Workers’ Comp. Ct. R. of Proc. 11 (2021). In view of our disposition of the appeal, we do not consider Lewis’ cross-appeal.
STATEMENT OF FACTS
On May 1, 2015, while Lewis was working for MBC Construction Co., an autopaving machine rolled on Lewis and crushed his leg. The leg was ultimately amputated above the knee. Neither party disputes that the amputation was a consequence of Lewis’ original injury. Lewis now uses a wheelchair, scooter, and crutches. One of Lewis’ treating physicians, Dr. Toby Free, testified to Lewis’ challenges using a prosthesis, including edema, vascular damage, and other issues that affected the healing and fit at the amputation site.
Before and after the injury, Lewis lived with friends, with family, or in rental homes. The compensation court noted that most recently, he lived in a two-bedroom apartment with his sister.
Lewis sought an estimate from a home builder for an accessible house with four bedrooms—one for himself and each of his children. The estimate was nearly $400,000. Lewis filed a motion to compel that would direct MBC to build the accessible house for his use. Lewis submitted evidence that a four-bedroom accessible house is difficult to find.
Dr. Free opined that “Lewis will need a fully handicap accessible home with a bathroom on the main floor. His home needs to be fully wheelchair accessible. He sometimes needs to use the wheelchair now and I expect he will need to use it more in the future as he ages.” He opined that Lewis’ “current living situation is untenable.”
Although MBC claimed it was willing to make modifications to an existing home, it was not willing to purchase or construct a home for Lewis. It submitted an affidavit of Scott Vogt, the chief operating officer of a real estate company, which affidavit discussed homes in the Omaha, Nebraska, area meeting Lewis’ requirements. Vogt analyzed the Omaha rental market and found at least 105 available rental units that would meet Dr. Free‘s requirements, ranging from $515 to $1,100 per month.
The compensation court found that Lewis’ proposed four-bedroom, three-car-garage house was not reasonable and necessary. However, it also found that Lewis’ injuries limited his ability to get around his home and take care of activities of daily living. It noted that the doors in his living quarters are not wide enough, the cabinets are not at the correct
At the time of the hearing, Lewis resided with family in their apartment. The court found that modifications to Lewis’ home are necessary and that “[h]ad it not been for the accident and injury sustained while employed by MBC Construction [Co.], [Lewis] would not now need accessible housing.” However, the compensation court explained that such modifications could not be completed on the apartment where Lewis was staying. It analyzed the case law and concluded, “[i]f modifications cannot be done to an existing property, the [court] reads the statute broadly . . . that would require defendants to obtain new living quarters for plaintiff that are accessible.” It ordered MBC to find new living quarters within 45 days that are accessible.
The compensation court directed MBC to find “an existing home . . . to which modifications need to be made.” As an alternative, it directed MBC to provide housing for Lewis by “either building or purchasing an accessible home for” him. The order provided that regardless of the eventuality, the potential housing should include at least 11 specified features to make it “accessible for [Lewis‘] condition“:
- At least three bedrooms;
- 36-inch wide doorways throughout the home and at all entry points and exit points;
- Either zero entry or a ramp for all entry and exit points into the structure;
- Zero entry for the shower;
- Reinforced shower bench and grab bars sufficient for his weight;
- Cut-outs under the sinks in his home so the wheelchair can fit underneath;
- 60 inches between the cabinets so he can move in and out while opening the cabinets;
- Reinforced grab bars around the toilets and in the laundry room for safety;
Nonslip flooring in the bathroom, laundry room, and kitchen; - An oversized commode; and
- Electrical outlets in the garage, if there is one, for charging his scooter and in the bedroom for charging his prosthetic leg.
MBC appeals, and Lewis cross-appeals.
ASSIGNMENTS OF ERROR
As its sole assignment of error, MBC claims that the compensation court erred when it directed MBC “to purchase real property for the benefit of . . . Lewis.”
On cross-appeal, Lewis claims that the Workers’ Compensation Court erred when it found his proposed new construction home was unreasonable and unnecessary. He also claims it was clearly wrong for the compensation court not to require garage space in its list of required features in its adaptive housing award. In view of our disposition of the appeal, we do not reach the cross-appeal.
STANDARD OF REVIEW
[1] Under
[2] On appellate review, the factual findings made by the trial judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Melton v. City of Holdrege, ante p. 385, 960 N.W.2d 298 (2021).
Both the appeal and cross-appeal taken in this case pertain to an employer‘s responsibility for an injured worker‘s home to be made accessible for the worker‘s work-related injuries. As an initial matter, we set forth our statutory and case law on
The employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery or reconstructive surgery but not cosmetic surgery when the injury has caused disfigurement, appliances, supplies, prosthetic devices, and medicines as and when needed, which are required by the nature of the injury and which will relieve pain or promote and hasten the employee‘s restoration to health and employment, and includes damage to or destruction of artificial members, dental appliances, teeth, hearing instruments, and eyeglasses, but, in the case of dental appliances, hearing instruments, or eyeglasses, only if such damage or destruction resulted from an accident which also caused personal injury entitling the employee to compensation therefor for disability or treatment, subject to the approval of and regulation by the Nebraska Workers’ Compensation Court, not to exceed the regular charge made for such service in similar cases.
Nebraska courts have previously held that modifications to an injured employee‘s home can be medical expenses under the appliances or supplies categories of
Rule 11 provides, in relevant part, that “[d]ecisions of the court shall provide the basis for a meaningful appellate review.” Rule 11 ensures that compensation court orders are
In several cases where a compensation court made ambiguous or contradictory findings, we found that meaningful appellate review was precluded, even though the failure was not a jurisdictional defect. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003), disapproved on other grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005); Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57 (1998). The order before us is similarly ambiguous and contradictory. In its order, the compensation court acknowledged that MBC offered several alternatives which MBC was apparently willing to provide for Lewis. The court observed: “It did not seem to the Court that [MBC] so much objected to providing an accessible home, just that what [Lewis] proposed was not reasonable. . . . [MBC has] presented evidence that other alternatives are available that would meet [Lewis‘] needs.”
The order cited the affidavit of Vogt with respect to available properties in the Omaha area. The properties described therein included a range of options at many price points, included both rental homes and houses for sale, and included homes that were already accessible and homes needing modification to be accessible. The court continued:
If an existing home is found for [Lewis] to which modifications need to be made, [MBC] must also see that plans are drawn up for any necessary modifications along with a timetable for completion of those modifications
and those plans must be presented to [Lewis] within this 45-day deadline. The Court realizes the deadline is tight, but there have been numerous delays already on this issue, and [Lewis] should not be the one to suffer for them.
However, the compensation court‘s order failed to clearly address whether and which of the housing options was reasonable and necessary, or the extent of MBC‘s specific economic obligations, such as insurance, taxes, and rental or mortgage payments, once appropriate housing for Lewis is identified. Compare, Squeo v. Comfort Control Corp., 99 N.J. 588, 494 A.2d 313 (1985) (addressing construction costs, maintenance, capital repairs, insurance, and taxation); Arce v. Mountain Wood Forestry, Inc., No. COA09-490, 2010 WL 10962 (N.C. App. Jan. 5, 2010) (unpublished disposition listed in table at 201 N.C. App. 726 (2010)) (dividing cost of housing between employer and worker).
We have previously reversed orders and remanded causes under rule 11 when the order of the compensation court was unclear. See, e.g., Rogers v. Jack‘s Supper Club, 304 Neb. 605, 935 N.W.2d 754 (2019); Owen v. American Hydraulics, supra; Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 (1996). In a case where the order was ambiguous and contradictory, we said that “[n]either party should prevail on the basis of an ambiguity.” Owen v. American Hydraulics, 254 Neb. at 695, 578 N.W.2d at 64. Compare Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012) (finding order was not confusing and complied with rule 11).
In the instant case, the order is confusing and the undertakings of each party are unclear. We vacate the order of the compensation court and remand the cause for further proceedings.
On remand, the compensation court shall, inter alia, enter an order based on the existing record, clarifying which accessible alternative housing options should be pursued and in which order, and it should clarify in findings MBC‘s economic obligations under the Nebraska Workers’ Compensation Act with respect to the housing ultimately obtained.
The compensation court erred when it issued a decision that did not comply with rule 11, and we vacate the order and remand the cause with directions to enter an order in compliance with rule 11 as described in our opinion above. In so doing, we express no opinion on an employer‘s potential liability, if any, to construct or purchase adaptive housing under
VACATED AND REMANDED WITH DIRECTIONS.
STACY, J., concurring.
I agree with the majority‘s conclusion that the order of the Workers’ Compensation Court is too ambiguous for meaningful appellate review and therefore must be vacated. I write separately to suggest that any expansion of our holding in Miller v. E.M.C. Ins. Cos.1 presents issues of public policy for the Legislature.
In Miller, the injured worker used a wheelchair and we affirmed an order of the Workers’ Compensation Court directing the employer‘s insurer to pay for the modifications needed to make the worker‘s home wheelchair accessible. We found that
[M]odifications to an injured employee‘s home [can] be considered medical expenses under the appliances or supplies categories if the modifications are “required by the nature of the injury,” and if the modifications “relieve pain or promote and hasten the employees’ restoration to health and employment.”2
Miller found the first requirement was satisfied by evidence that doctors had recommended certain modifications to the employee‘s home to allow him to access and use the home
In the 20-plus years since this court‘s decision in Miller, the relevant provisions of
But the primary question raised by the parties in this appeal is not whether the employer or its insurer can be ordered to pay for modifications to Lewis’ residence to make it accessible after his work-related injury. The parties agree that question was answered in the affirmative by Miller. Rather, the question here appears to be the extent of the employer‘s responsibility for modifications under Miller and Koterzina when the injured worker does not have housing that can be modified.
We do not reach that question in this appeal, because we are not able to discern what the trial court has ordered in that regard. Has the court ordered the employer or its insurer to purchase or custom build an entire home that is accessible?
It is a familiar proposition of law that the Nebraska 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.7 I see nothing in the plain text of
So while I agree with the majority that the order of the workers’ compensation court is too ambiguous and confusing for meaningful appellate review, I respectfully suggest that any expansion of the rule announced in Miller and Koterzina implicates important public policy questions about the compensability of accessible housing for injured workers and is something properly left to the Legislature.
FUNKE, J., joins in this concurrence.