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Meredith v. Schwarck Quarries8/9/2005
Irwin, Sievers, and Cassel, Judges.
I. INTRODUCTION
Schwarck Quarries, Inc. (Schwarck), appeals an order of a three-judge review panel for the Nebraska Workers' Compensation Court. Schwarck argues that the review panel erred in affirming the trial court's award of temporary total disability benefits and vocational rehabilitation services to Marvin Meredith, but correctly reversed the trial court's modified award of permanent total disability benefits. On cross-appeal, Meredith argues that the review panel erred in reversing the trial court's award of permanent total disability benefits.
We find that the review panel did not err in affirming the trial court's award of temporary total disability benefits and vocational rehabilitation services. We further find that the review panel did err in finding that the trial court exceeded its authority on remand by modifying the award of permanent total disability benefits.
II. BACKGROUND
This case comes before us for the second time. The first time, it was disposed of in an unpublished opinion, Meredith v. Schwarck Quarries, Inc., No. A-01-1318, 2002 WL 1315376 (Neb. App. June 18, 2002) (not designated for permanent publication). A detailed description of the facts is contained therein. We will discuss only the facts necessary to dispose of the case now before us.
On September 1, 1999, Meredith was injured in a work-related accident while working for Schwarck. Meredith testified that he had initially experienced some pain, that he had continued working, but that the pain increasingly worsened as time passed. In November, Meredith sought treatment from Saint Elizabeth Company Care, was given work restrictions, was prescribed medication, and was recommended for physical therapy. Meredith was later evaluated by Dr. D.M. Gammel, who diagnosed Meredith with "1. Chronic myofascitis of the cervical spine due to work related injury of 1 September 1999 2. Status postoperative spinal fusion L5-S1, with aggravation resulting in chronic myofascitis of the lumbar spine due to work related injury of 1 September 1999." Gammel opined that Meredith's "injury of 1 September 1999 has resulted in an aggravation of previous lumbar injury however there is no additional impairment." Gammel further opined that due to the September 1999 accident, Meredith incurred a 5-percent whole person impairment rating to his cervical spine.
On November 29, 1999, Meredith filed a petition in the Nebraska Workers' Compensation Court seeking compensation for the injury he suffered in September 1999. Specifically, Meredith sought medical costs, temporary total disability benefits, permanent partial disability benefits, vocational rehabilitation services, attorney fees, and penalties.
A trial was held on November 1, 2000. On April 2, 2001, the trial court entered an order determining that Meredith did suffer an injury in September 1999. The court determined that as a result of the injury, Meredith incurred medical and hospital expenses, was temporarily totally disabled from November 9, 1999, through May 12, 2000, and thereafter sustained a 44-percent loss of earning capacity. The court also specifically determined that the accident caused Meredith's injuries. The court awarded Meredith benefits for both his temporary total disability and his permanent partial disability and stated that he was entitled to vocational rehabilitation services.
Schwarck appealed the order of the trial court to a three-judge review panel. On appeal, the review panel affirmed the ruling of the trial court, stating that the findings of fact were not clearly wrong and that no error of law appeared. The review panel no
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