DEAN PICK, Plaintiff,
CEDAR COUNTY AND ITS WORKERS’ COMPENSATION INSURER, NEBRASKA INTERGOVERNMENTAL RISK MANAGEMENT ASSOCIATION, Defendants.
Nebraska Workers' Compensation
September 3, 2020
Plaintiff: Eric B. Brown Atwood, Holsten, Brown, Deaver &
Spier Law Firm, PC, LLO
Defendants: David A. Dudley Baylor Evnen, LLP Wells Fargo
R. HOFFERT, JUDGE.
CAUSE came on for hearing before the Nebraska Workers'
Compensation Court at Lincoln, Lancaster County, Nebraska, on
July 21, 2020, on the Petition of the plaintiff, Answer of
the defendants and on the evidence, Judge John R. Hoffert,
one of the judges of said court, presiding. Plaintiff
appeared in person and was represented by counsel. Defendants
were represented by counsel. Testimony was taken, evidence
adduced, and cause submitted with the receipt of briefs
Court having listened to the testimony presented at trial;
having reviewed the exhibits received into evidence; having
had the benefit of the written closing arguments of counsel
last received on August 4, 2020; and, being otherwise fully
advised in the premises, finds as follows.
to the presentation of oral testimony, the parties advised
the Court they had reached several stipulations as
memorialized in Exhibit 18, to-wit: (1) The plaintiff had an
accident and injury to his right shoulder in Cedar County,
Nebraska, on July 24, 2015, arising out of and in the course
of his employment with the first-named defendant, for which
proper notice was given; (2) Proper venue for the trial is in
Lincoln, Nebraska; (3) Plaintiff’s average weekly wage
(AWW) at the time of his accident was $615.22; (4) Plaintiff
was temporarily totally disabled as a result of his accident
from July 24, 2015, through September 26, 2016; (5)
Defendants have paid plaintiff all temporary total disability
(TTD) owed during the time period the parties stipulated
plaintiff was temporarily totally disabled, with no
underpayment or overpayment of TTD; (6) The plaintiff makes
no further claim for TTD owed through the date of trial; (7)
In the days leading up to trial, the parties stipulated to a
slightly higher AWW than previously calculated and utilized.
Within 10 days of trial, defendants will make an additional
$634.77 permanent partial disability (PPD) payment to
plaintiff based on a 12 percent permanent partial impairment
assigned to his right arm; and, (8) Plaintiff makes no claim
for penalties, attorney fees, or interest through the date of
Court accepts the stipulations of the parties and so finds.
plaintiff offered Exhibits 1 through 11, 18, and 19 into
evidence. The defendants voiced no objections to the receipt
of the tendered materials. Hence, plaintiff’s Exhibits
1 through 11, 18, and 19 were received into evidence.
defendants, in turn, offered Exhibits 12 through 17 into
evidence. The plaintiff, likewise, voiced no objections.
Consequently, defendants Exhibits 12 through 17 were received
into evidence as well.
plaintiff requested that the Court take judicial notice of
the Petition filed by the plaintiff on July 26, 2019. In the
absence of any objection by the defendants, the Court took
the requested notice. That Petition has been marked as
the plaintiff requested leave of court to amend his Petition
so as to include a claim for a right carpal tunnel syndrome
injury alleged to be a compensable consequence of
his previously agreed upon right shoulder injury. The Court
extended permission to do so with the understanding that the
defendants would rely upon their general denial as set forth
in their previously filed Answer.
first issue presented for resolution concerns the
defendants’ assertion that the statute of limitations
has run on plaintiff’s claim. As an affirmative
defense, it is, of course, the defendants’ burden of
proof and persuasion to establish the bar they have asserted.
Rev. Stat. § 48-137 provides that when an employer or
its insurer has paid compensation, all claims shall be
forever barred two years from the time of the making of the
last payment. Precedential case law establishes that the time
of the making of a last payment means the date the employee
or the employee’s medical care provider receives the
payment. Obermiller v. Peak Interest, L.L.C., 277
Neb. 656, 764 N.W.2d 410 (2009). According, the statute of
limitations does not commence until the employee actually
receives the payment.
noted above, the plaintiff requested that the Court take
judicial notice of the filing of his Petition on July 26,
2019. This fact becomes important as one realizes that the
last payment of indemnity by the defendants was sent by
United States Postal Service, regular First-Class mail...