Pick v. Cedar County and its Workers’ Compensation Insurer, 090320 NEWC, 1033

Docket Nº:1033
Case Date:September 03, 2020
Court:Nebraska
 
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DEAN PICK, Plaintiff,
v.
CEDAR COUNTY AND ITS WORKERS’ COMPENSATION INSURER, NEBRASKA INTERGOVERNMENTAL RISK MANAGEMENT ASSOCIATION, Defendants.
No. 1033
Doc. 219
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 Center          AWARD           JOHN R. HOFFERT, JUDGE.          THIS 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 post-trial.          The 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.          I.          Prior 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 trial.          The Court accepts the stipulations of the parties and so finds.          The 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.          The 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.          The 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 Exhibit 20.          Finally, 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.          II.          The 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.          Neb. 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.          As 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...

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