Opinion
No. A-12-502
01-15-2013
GARY E. GRAHAM, APPELLEE, v. ZACHRY CONSTRUCTION CORPORATION, APPELLANT.
Tiernan T. Siems and Sara A. Lamme, of Erickson & Sederstrom, P.C., L.L.O., for appellant. Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the Workers' Compensation Court: RONALD L. BROWN, Judge. Affirmed.
Tiernan T. Siems and Sara A. Lamme, of Erickson & Sederstrom, P.C., L.L.O., for appellant.
Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges.
SIEVERS, Judge.
INTRODUCTION
This appeal arises out of Gary E. Graham's motion to compel his former employer, Zachry Construction Corporation (Zachry), to reimburse him for medical expenses Graham incurred following the workers' compensation court's award of future medical expenses. The trial court ruled in favor of Graham's motion to compel and ordered Zachry to reimburse Graham for the medical expenses and to pay further future medical expenses, along with attorney fees associated with the motion. Zachry appeals. We conclude that Zachry's assigned errors lack merit and affirm.
BACKGROUND
On March 17, 2008, Graham suffered a low-back injury while working for Zachry. On November 25, 2009, the compensation court entered an award including, inter alia, future medical care.
On December 12, 2011, Graham was examined by Dr. Bradley Vasa, his primary care physician, due to back pain. Dr. Vasa prescribed medication and referred Graham to Dr. Keith Lodhia, a neurosurgeon. Graham paid for the appointment with Dr. Vasa out-of-pocket. Dr. Lodhia examined Graham on January 3, 2012. Dr. Lodhia recommended that Graham undergo an MRI of his back to help determine whether Graham required an epidural injection. Zachry did not authorize payment for the appointment, and Graham paid for it out-of-pocket. An MRI appointment was scheduled for January 12, but Graham canceled it because Zachry did not authorize payment and Graham could not afford to pay for the MRI out-of-pocket. Graham's out-of-pocket expenditures for the appointments with Drs. Vasa and Lodhia totaled $307.
On January 6, 2012, Graham's counsel sent an e-mail to Zachry's counsel requesting reimbursement for Graham's out-of-pocket expenses. In response, Zachry's counsel requested the medical records corresponding with the appointments for which Graham sought reimbursement. Records from Dr. Vasa's office were forwarded to Zachry's counsel on January 19. Following the transmission of documents on January 19, Zachry's counsel informed Graham's counsel that without more information supporting the connection to the compensable accident, he could not recommend preapproval of the contested expenses. Zachry's counsel also requested a statement from Graham himself.
On February 15, 2012, Graham's counsel sent Zachry's counsel medical records from Graham's appointment with Dr. Lodhia. On that date, Zachry's counsel also received an affidavit by Graham detailing the history of the case and his treatment and a report dated January 25, 2012, in which Dr. Vasa stated:
I have treated . . . Graham for a work-related back injury from a date of accident of March 17, 2008 while he was working for Zachry . . . . [He] recently returned to my office in December of 2011 reporting continued complaints of back pain. When [he] came to see me in December of 2011, I reviewed [his] past medical history and discussed with him his present problems. Based on my prior and present treatment of . . . Graham, it is my opinion that his most recent treatment for back pain relates to his original work injury of March 17, 2008. . . . I believe my treatment of . . . Graham and the referral to Dr. Lodhia both are the result of . . . Graham's work injury of March 17, 2008.
On February 15, 2012, after the aforementioned documents were sent to Zachry's counsel, Graham filed a motion to compel payment for medical treatment per the original award, reimbursement for Graham's out-of-pocket expenses, and attorney fees. Graham alleged that Zachry had "failed and refused to pay" for his appointments with Drs. Vasa and Lodhia and the MRI recommended by Dr. Lodhia, despite having been provided with medical records describing the treatment and connecting it to Graham's compensable back injury. On March 1, Zachry filed a resistance to the motion to compel, alleging that Zachry had insufficient time to investigate the merits of Graham's claim and denying any failure or refusal to pay for Graham's treatment, as the investigation was ongoing.
On March 29, 2012, the compensation court conducted a hearing on the motion to compel and the parties adduced evidence, portions of which we have summarized above. We summarize additional relevant details in the analysis section of this opinion. On May 3, the compensation court entered an order requiring Zachry to pay for the medical expenses incurred by Graham, the MRI and epidural injection recommended by Dr. Lodhia, and future medical expenses, along with attorney fees associated with the motion to compel. Zachry timely appeals.
ASSIGNMENTS OF ERROR
Zachry assigns, condensed and restated, that the trial court erred in (1) entertaining the motion to compel and entering an order on the motion, (2) failing to receive the claims examiner's unnotarized statement entitled "affidavit," (3) receiving Dr. Vasa's report without sufficient foundation and applying an irrebuttable presumption of correctness to the report, (4) failing to allow Zachry to perform discovery concerning Graham's claim to ongoing medical care and scrutinize medical recommendations, (5) ordering Zachry to reimburse Graham for out-of-pocket expenses and provide an MRI and epidural injection, and (6) awarding Graham attorney fees.
STANDARD OF REVIEW
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2012), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only 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 no 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. Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598 (2007).
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id.
ANALYSIS
Trial Court's Authority to Rule
on Motion to Compel.
Zachry asserts that the trial court erred in entertaining and ruling on the motion to compel outside the context of ongoing litigation. Zachry reasons that without a current petition on file, the trial court did not have statutory authority to rule on the motion to compel. Zachry further complains that in ruling on the motion outside the context of ongoing litigation, the trial court deprived Zachry of the opportunity to conduct discovery.
The Nebraska Workers' Compensation Court, as a statutory tribunal, is a court of limited and special jurisdiction and possesses only such authority as is delineated by statute. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). Statutory interpretation presents a question of law. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011). Neb. Rev. Stat. § 48-162.03 (Reissue 2010) provides in part:
(1) The Nebraska Workers' Compensation Court or any judge thereof may rule upon any motion addressed to the court by any party to a suit or proceeding, including, but not limited to, motions for summary judgment or other motions for judgment on the pleadings but not including motions for new trial or motions for reconsideration. Several
objects may be included in the same motion, if they all grow out of or are connected with the action or proceeding in which it is made.
(2) Parties to a dispute which might be the subject of an action under the Nebraska Workers' Compensation Act may file a motion for an order regarding the dispute without first filing a petition.
In the present case, the parties had already been before the compensation court, resulting in an award of future medical care for Graham's low-back injury, which award Graham's motion to compel sought to enforce. The statute gives the court authority to rule upon "any motion" except motions for new trial or motions for reconsideration. Section 48-162.03(1) does not explicitly prohibit the compensation court from ruling on a motion to compel. Graham was a party to a dispute which "might" be the subject of a workers' compensation action, and as such, § 48-162.03(2) did not require him to file a petition before filing his motion to compel. We conclude that the plain language of § 48-162.03 gave the trial court statutory authority to resolve further disputes between the parties relating to the original cause of action without a new petition. Therefore, Zachry's first assigned error lacks merit. Unnotarized "Affidavit."
During the hearing on Graham's motion to compel, Zachry offered the unnotarized statement of a claims examiner, entitled "affidavit." Although the claims examiner purported to be "duly sworn," the document bore only her signature and no other. Graham's attorney objected because the so-called affidavit had not been notarized, and the trial court sustained the objection. Zachry assigns that the trial court erred in refusing to admit the exhibit.
An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. Stoetzel v. Neth, 16 Neb. App. 348, 744 N.W.2d 465 (2008). An affidavit must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same. Id. An affidavit does not require a notary to confirm the truth of the facts stated in the affidavit; rather, the certificate, also known as a jurat, confirms only that the affiant appeared before the notary, attested to the truth of his or her statements, and signed the affidavit. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008).
Clearly, without a certificate of an officer, the disputed exhibit in this case was not an affidavit. Therefore, we treat it as an unsworn statement by the claims examiner, rather than an affidavit, in considering whether it was within the trial court's discretion to exclude it from evidence.
The parties litigating before a compensation court shall be permitted to introduce evidence which is procedurally and substantively admissible in the trial courts of this state. Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799 (1997). Given the beneficent purposes of workers' compensation law in Nebraska, the compensation court is empowered to admit evidence not normally admissible under the rules of evidence applicable in the trial courts of this state. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007). The Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence; subject to the limits of constitutional due process, admission of evidence is within the discretion of the compensation court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Cunningham v. Leisure Inn, 253 Neb. 741, 573 N.W.2d 412 (1998).
The disputed exhibit would not have been admissible under the rules of evidence applicable to trial courts. See Neb. Rev. Stat. § 25-1240 (Reissue 2008) (testimony may be taken by (1) affidavit, (2) deposition, (3) oral examination, and (4) videotape in accordance with procedures provided by law). Therefore, although the compensation court may have been empowered to admit it, we cannot say that it abused its discretion in excluding it.
Zachry argues that the compensation court admits other unnotarized statements and reports from nonmedical experts. Although Workers' Comp. Ct. R. of Proc. 10 (2011) does specifically allow the compensation court to admit the signed statement of a vocational rehabilitation expert, that rule does not make the same provision for the statement of a claims adjustor. Again, we cannot say that the compensation court abused its discretion in refusing to admit the claims adjustor's statement.
Dr. Vasa's Report.
Zachry asserts that the trial court erred in receiving Dr. Vasa's report, quoted above, because it contains insufficient information to support the opinions therein and therefore lacks foundation.
Admission of evidence is within the discretion of the Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Olivotto v. DeMarco Bros. Co., supra. To preserve a claimed error in admission of evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence. Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636 (1996). If the party against whom evidence is offered fails to object to such evidence, that party is considered to have waived whatever objection he or she may have had, and the evidence is in the record for consideration the same as other evidence. Id.
Zachry admits that it did not specifically object to the admission of Dr. Vasa's report. However, Zachry argues that its counsel called the trial court's attention to the foundational issues of Dr. Vasa's report, preserving the error. At the hearing on the motion to compel, Graham's counsel offered Graham's affidavit, which stated in paragraph 8, "Dr. Vasa has indicated that his recent treatment of me, as well as the referral to Dr. Lodhia, relates to my original work injury from March 17, 2008. See attached report of Dr. Vasa, Exhibit E." (We have quoted Dr. Vasa's report in the background portion of this opinion.) Zachry's counsel objected to paragraph 8 of Graham's affidavit based on foundation, stating, "Neither [Graham] nor Dr. Vasa had all the facts. Certainly, [Graham] doesn't have the expertise to offer medical opinions, and that's what paragraph 8 contains." The trial court confirmed that Dr. Vasa's report was attached to the affidavit, and remarked that if Graham had given live testimony of the facts alleged in paragraph 8, the trial court would have sustained the objection and "let the medical record speak for itself." The trial court sustained Zachry's objection to paragraph 8, but received Dr. Vasa's report and relied on it in the order.
We conclude that because Zachry's counsel failed to specifically object to Dr. Vasa's report, any claimed error concerning its admission was not preserved for our consideration on appeal. We also conclude that Zachry's counsel did not preserve any error by referring to possible deficiencies in Dr. Vasa's report with an offhand remark within another objection.
Zachry further asserts that the trial court erred in relying on Dr. Vasa's report and applying an irrebuttable presumption of correctness to Dr. Vasa's report. There is no indication in the record that the trial court applied an irrebuttable presumption of correctness to the report.
To the extent that Zachry assigns and argues that the trial court erred in relying on Dr. Vasa's report, we observe that a determination concerning the sufficiency of the foundation for an expert's opinion is left to the discretion of the trial court and that it was within the trial court's power to determine whether Dr. Vasa's report was credible. See, Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007); Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003) (as trier of fact, single judge of Workers' Compensation Court is sole judge of credibility of witnesses and weight to be given their testimony). The record from the original hearing in this case shows that Dr. Vasa was Graham's primary care physician and was involved in Graham's care in 2008 and in December 2011. Dr. Vasa was one of the physicians to whom the original award ordered payment. In light of these facts, the powers of the compensation court, and our standard of review, we cannot say that the compensation court erred in admitting and relying on Dr. Vasa's report.
Ruling on Motion to Compel.
Zachry essentially contends that the evidence was insufficient to support the trial court's order requiring Zachry to reimburse Graham for his out-of-pocket medical expenses and provide for an MRI and epidural injection. In testing the sufficiency of the evidence to support the findings of fact by the Workers' Compensation Court, our standard of review is that the evidence must be considered in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence. Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010).
The Nebraska Workers' Compensation Court has the statutory authority to order payment of future medical expenses incurred more than 2 years after the date of the last compensation payment. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001). Before an order for future medical benefits may be entered, there should be a stipulation of the parties or evidence in the record to support a determination that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease. Id. An award of future medical expenses requires explicit evidence that future medical treatment is reasonably necessary to relieve the injured worker from the effects of the work-related injury. Adams v. Cargill Meat Solutions, 17 Neb. App. 708, 774 N.W.2d 761 (2009).
In the instant case, the trial court awarded Graham future medical benefits for his compensable back injury on November 25, 2009. Medical records reflect that in December 2011, Graham sought treatment for an "exacerbation" of his back pain. In a report dated January 25, 2012, Dr. Vasa, who had treated Graham prior to the original award for his initial injury and from whom Graham sought treatment in 2011, opined that based on his prior and present treatment of Graham, Graham's most recent treatment for back pain was related to his original work injury. Graham provided medical bills associated with his treatment. We conclude that this evidence was sufficient to support the trial court's ruling on the motion to compel payment for future medical care.
Zachry argues repeatedly throughout its brief that the trial court erred in granting the motion to compel because the ruling deprived Zachry of its right to investigate Graham's claim, thereby violating Zachry's right to due process. Zachry implies that Graham's request for enforcement of the award of future medical care is suspect because Graham operates a salvage yard, which requires heavy labor, and because Graham had not required future medical care until 2011, 2 years after the original award of future medical care. Zachry contends that in the context of this motion to compel, it could not take Graham's deposition or complete written discovery. However, the record shows that Zachry did not follow through on its alleged intent to take a deposition of Graham, nor is there any evidence that written discovery was ever actually attempted.
Zachry's attorney stated in an affidavit in evidence that Graham's counsel refused to provide a release for medical records or make Graham available for a statement. He also alleges that there were e-mail conversations concerning "scheduling . . . Graham's deposition and [Graham's counsel's] anticipated motion to quash the same." However, in an e-mail to Zachry's counsel dated March 14, 2012, Graham's counsel stated:
You had requested a deposition of . . . Graham and as we discussed, I planned to file a motion to quash that deposition, once a notice was received. In order to accommodate your request that the deposition/motion to quash be addressed before the hearing on my motion to compel payment, we moved the hearing on my motion to compel payment back to 3/29 and scheduled a hearing for a motion to quash for 3/15, the date my motion to compel payment was to originally be heard. Neither I nor my staff heard anything from you since your e-mail of 2/29/12. I sent you a follow up on Monday 3/12/12 asking you to state your intentions with respect to a deposition. To date, we have not received your deposition notice. As such, the hearing for tomorrow has been cancelled as I cannot move to quash a deposition for which there is no notice and I did not feel that the court needed to hold open a hearing date under such circumstances.Clearly, the evidence shows that Zachry did not follow through on its intentions to depose Graham and, moreover, that Graham's counsel had made arrangements to allow that court to determine, before the hearing on the merit, whether a deposition was proper. Finally, there is no evidence in the record that Zachry sought the assistance of the compensation court in obtaining evidence to defend against the motion to compel.
Prior to the hearing on the motion to compel, Zachry received the necessary documentation to support payment for Graham's care. Graham was not required to relitigate the issues presented at the original trial to recover for the previously awarded future medical care. As described above, he satisfied his burden of proving medical expenses that were related to his original injury, and we will not disturb the trial court's ruling on appeal.
Attorney Fees.
Zachry argues that attorney fees pursuant to Neb. Rev. Stat. § 48-125 (Cum. Supp. 2012) were not warranted. Section 48-125(2)(a) provides that where the employer does not pay after 30 days' notice has been given of the obligation for medical payments, and proceedings are held before the compensation court, a reasonable attorney fee shall be allowed the employee in all cases when the employee receives an award. Where there is no reasonable controversy, § 48-125 authorizes the award of attorney fees. Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370 (2004). A reasonable controversy under § 48-125 may exist if the properly adduced evidence would support reasonable but opposite conclusions by the Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part. Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).
The evidence shows that by February 15, 2012, Zachry had received medical bills, clinical notes, and Dr. Vasa's report connecting Graham's latest medical care to his compensable injury. As of the hearing on the motion to compel on March 29, Zachry had not reimbursed Graham for his medical expenses. The record does not contain any evidence from Zachry showing that the requested treatment was not related to the original compensable injury nor that the costs were not reasonable and necessary. Without such, there is no evidence establishing a reasonable controversy. Zachry failed to reimburse Graham within 30 days of receiving notice of its obligation. Having already determined Graham was entitled to be reimbursed for the future medical care for which Zachry failed to pay, and with no evidence of a reasonable controversy, we conclude that the trial court correctly determined that there was no reasonable controversy with respect to Zachry's obligation to pay for the disputed medical expenses and correctly awarded attorney fees.
CONCLUSION
For the reasons stated above, we affirm the order of the workers' compensation court.
AFFIRMED.