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Flesner v. Lincoln Poultry8/23/2005
Flesner appealed to the review panel, alleging, inter alia, that the trial court erred in finding that Cincinnati had paid him based on a 20-percent loss of earning capacity and in failing to award a waiting-time penalty on late or unpaid benefits based on a 40-percent loss of earning capacity. Cincinnati cross-appealed. The transcript before this court does not contain Cincinnati's application for review, and we glean information regarding the cross-appeal from the review panel's order. Cincinnati asserted that the trial court erred in finding Cincinnati liable for Flesner's injuries, that there was a reasonable controversy concerning the assessment of an attorney fee for the medical bills, that the assessment of a 50-percent loss of earning capacity was speculation by the trial court, and that Flesner did not present evidence that he would need future medical treatment.
The review panel found that the trial court erred in not assessing a waiting-time penalty, because the trial court incorrectly accepted Cincinnati's representation that it had paid Flesner based on a "20 percent total rating." The review panel observed the evidence that Cincinnati had paid one-third of the 20-percent loss of earning capacity and stated:
If Cincinnati . . . was correct in its assertion of potential liability on the other two defendants, the remedy of Cincinnati . . . was to file a motion with the trial court pursuant to [Neb. Rev. Stat. §] 48-178.01 [(Reissue 2004)] which allows a dispute between defendants to be resolved by the Court and payment of benefits made to the plaintiff until the final resolution of defendant's liability is decided. [Flesner's] lawsuit is against [Lincoln Poultry]. [Flesner] cares not which insurance company of [Lincoln Poultry] pays his indemnity benefits, only that he is timely paid. The defendant Cincinnati . . . cannot rely on a self-imposed finding of its proportional liability to escape the imposition of a late payment penalty.
The review panel finds as a matter of fact that the trial court was incorrect in finding that the defendant Cincinnati . . . had paid [Flesner] based on a 20 percent total rating. The reasoning by the trial court not to impose a penalty was therefore in error. If the representation by Cincinnati . . . was the only reason the trial court did not issue a penalty then the trial court should issue a penalty for incomplete payment of benefits pursuant to [Neb. Rev. Stat. §] 48-125 [(Reissue 2004)]. If there are further issues that may lead the Court to find that there was a reasonable controversy the Court should so state in a reasoned decision pursuant to [Workers' Comp. Ct. R. of Proc.] 11 [(2004)].
The trial court should make the same determination as to the merits of whether [Flesner] is entitled to a further penalty when . . . Stricklett increased [Flesner's] loss of earning capacity to a minimum of 40 percent after the new restrictions by . . . Diamant in October of 2003, when [Flesner's] loss of earning capacity was increased to a range of between 40 and 50 percent.
Regarding Cincinnati's cross-appeal, the review panel concluded that the trial court's decision was supported by the record and that Cincinnati's assignments of error lacked merit.
Cincinnati and Lincoln Poultry (hereinafter collectively Appellants) now appeal, and Flesner cross-appeals.
ASSIGNMENTS OF ERROR
Appellants assign that the review panel erred in (1) finding that the incidents occurring after April 2000 did not result in new injuries to Flesner, (2) finding that Cincinnati was liable for all of Flesner's medical bills, (3) finding that Cincinnati was liable for all indemnity payments to Flesner, (4
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