S-12-0320, Edward Tuttle (Appellant) v. Bunge Milling Inc.
Nebraska Workers’ Compensation Court, Judge Michael K. High
Attorneys: Jeffry D. Patterson (Bartle & Geier) (Appellant) --- Melvin C. Hansen, Brian C. Hansen (Hansen Lautenbaugh & Buckley LLP) (Appellee)
Civil: Determination of new or recurrence of injury
Proceedings below: The trial court found plaintiff was suffering from a recurrence of his original May 7, 1992 injury on February 13, 2003. Therefore, plaintiff was entitled to temporary total disability for certain periods. The trial court also awarded a waiting time penalty for underpayment and late payment of permanent partial disability benefits and an attorney fee. The Court of Appeals heard argument on the case. Both parties filed motions for rehearing after the Court of Appeals issued its opinion. The Court of Appeals granted both motions for rehearing and withdrew the opinion. Thereafter, the case was moved to the Supreme Court and ordered to be placed on the October 2013 Call.
Issues: The trial court erred as a matter of law in (1) failing to fully compensate Appellant for his loss of earning capacity attributed to his 1992 injury; (2) concluding that the 2003 reappearance of symptoms was a recurrence; (3) not awarding waiting time penalties and attorney fees regarding defendant’s refusal to pay temporary total disability from June 10, 2009 to July 29, 2011, and refusal to pay Appellant’s 40% loss of earning capacity determined by the court-appointed vocational counselor.