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Spaulding v. Alliant Foodservice11/16/2004
I. INTRODUCTION
Alliant Foodservice, Inc. (Alliant), and Sentry Insurance a Mutual Company (Sentry) appeal the affirmance by a three-judge review panel of an award of the Nebraska Workers' Compensation Court to Jeffery Spaulding. Alliant and Sentry argue that Spaulding was willfully negligent, which negligence would prohibit him from obtaining an award. Spaulding cross-appeals, contesting the review panel's affirmance of the trial court's denial of his request for a waiting-time penalty and attorney fees as well as the review panel's denial of his request for attorney fees on appeal. We find that because the trial court found the actions of Spaulding that resulted in his injuries to be unintentional, Spaulding was not willfully negligent. We further find that Spaulding is not entitled to a waiting-time penalty and attorney fees at the trial court level, due to the uncertainty in this area of law that existed prior to this opinion. Spaulding is, however, entitled to attorney fees for his appeal to the review panel, because there was no reduction in the amount of his award on appeal.
II. BACKGROUND
Spaulding worked as an "order selector" for Alliant. This job entailed " icking product to be shipped out to [Alliant's] customers n a timely manner." To accomplish this, Spaulding utilized a high rise machine to access racks on which the products for the orders were stored. These racks were approximately 20 feet high. Spaulding was required to wear a safety harness while on the high rise machine. The harness attached to the machine with a lanyard to prevent him from falling. When Spaulding had to get off of the high rise machine, he had to unhook his lanyard and then reattach it when getting back on the machine. This happened about 30 times during each shift.
On December 13, 2001, Spaulding was injured while "picking an order." Using the high rise machine, Spaulding was retrieving product from the top rack when "more than one case" fell against him and knocked him off the high rise machine. Spaulding fell approximately 20 feet to the ground and landed on his hands and knees. Having sustained multiple fractures to his left leg and a fracture to his right shoulder, Spaulding was taken to a hospital in an ambulance. Spaulding's shoulder was operated on, and he spent a total of approximately 4 weeks in hospitals and a care center. Spaulding subsequently received physical therapy, used crutches or a wheelchair for about 3 months, used crutches only for another 3 months, and continued to use a walking stick as of the date of trial.
At the time of his fall, Spaulding's lanyard was not attached to the high rise machine. Alliant has a safety rule that states, "No Associate should be elevated above a height of 4 feet without being in an approved safety cage and/or wearing the proper fall protection equipment." At trial, Spaulding testified that at the time of his fall, although his lanyard was not attached to the high rise machine, he was under the belief that it was properly attached.
On April 22, 2002, Spaulding filed a petition in the Nebraska Workers' Compensation Court, seeking medical benefits, disability benefits, vocational rehabilitation, a waiting-time penalty, and attorney fees. Alliant and Sentry admitted that Spaulding had been injured, but answered that Spaulding's injuries were a result of his willful negligence. A trial was held on January 27, 2003. The trial court found that Spaulding was not willfully negligent and that " t most, the evidence demonstrated momentary inadvertence and ordinary negligence." The court then awarded Spaulding medical and disability benefits, but denied Spaulding's request for a waiting-time penalty and attorne
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