Lewis v. MBC Constr. Co. , 309 Neb. 726 ( 2021 )


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    07/30/2021 09:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    Allen Michael Lewis, appellee and
    cross-appellant, v. MBC Construction
    Co., Inc., and Carolina Casualty
    Ins. Co., appellants and
    cross-appellees.
    ___ N.W.2d ___
    Filed July 16, 2021.    No. S-20-728.
    1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat.
    § 48-185 (Cum. Supp. 2020), a judgment, order, or award of the com-
    pensation court may be modified, reversed, or set aside only upon the
    grounds that (1) the compensation court acted without or in excess of
    its powers; (2) the judgment, order, or award was procured by fraud; (3)
    there is not sufficient competent evidence in the record to warrant the
    making of the order, judgment, or award; or (4) the findings of fact by
    the compensation court do not support the order or award.
    2. ____: ____. On appellate review, the factual findings made by the trial
    judge of the Workers’ Compensation Court have the effect of a jury ver-
    dict and will not be disturbed unless clearly wrong.
    Appeal from the Workers’ Compensation Court: Julie A.
    Martin, Judge. Vacated and remanded with directions.
    Daniel P. Lenaghan and Christine E. Westberg Dorn, of
    Sodoro, Mooney & Lenaghan, L.L.C., for appellants.
    Justin High and Erin N. Fox, of High & Younes, L.L.C., for
    appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    Per Curiam.
    NATURE OF CASE
    Allen Michael Lewis was injured in the course of his
    employment with MBC Construction Co., which injury ulti-
    mately resulted in the amputation of his left leg. This case
    arises from Lewis’ request for MBC Construction Co. and
    Carolina Casualty Ins. Co. (collectively MBC) to build acces-
    sible housing for him. The compensation court rejected Lewis’
    proposal for a four-bedroom, three-garage accessible house,
    but found certain accessibility features reasonable, necessary,
    and required due to the nature of Lewis’ injury. It ordered
    MBC to modify an existing home or potentially build a unit
    to meet Lewis’ accessibility requirements. MBC appeals, and
    Lewis cross-appeals. Because of ambiguity in its order, we
    conclude that the compensation court’s order did not provide
    a meaningful basis for appellate review of its order regarding
    alternative accessible housing, and accordingly, we vacate the
    order and remand the cause with directions to enter an order
    in compliance with Workers’ Comp. Ct. R. of Proc. 11 (2021).
    In view of our disposition of the appeal, we do not consider
    Lewis’ cross-appeal.
    STATEMENT OF FACTS
    On May 1, 2015, while Lewis was working for MBC
    Construction Co., an autopaving machine rolled on Lewis and
    crushed his leg. The leg was ultimately amputated above the
    knee. Neither party disputes that the amputation was a conse-
    quence of Lewis’ original injury. Lewis now uses a wheelchair,
    scooter, and crutches. One of Lewis’ treating physicians, Dr.
    Toby Free, testified to Lewis’ challenges using a prosthe-
    sis, including edema, vascular damage, and other issues that
    affected the healing and fit at the amputation site.
    Before and after the injury, Lewis lived with friends, with
    family, or in rental homes. The compensation court noted
    that most recently, he lived in a two-bedroom apartment with
    his sister.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    Because of his restrictions, Lewis sought modification of his
    rental property from MBC and retained a physician assistant
    to evaluate his residence and vehicle for medically neces-
    sary modifications to accommodate his injury. Based on this
    report from the physician assistant, Dr. Free agreed that Lewis
    should have an accessible home. However, before an accessi-
    bility solution was implemented, Lewis was evicted from that
    rental property.
    Lewis sought an estimate from a home builder for an acces-
    sible house with four bedrooms—one for himself and each of
    his children. The estimate was nearly $400,000. Lewis filed a
    motion to compel that would direct MBC to build the acces-
    sible house for his use. Lewis submitted evidence that a four-
    bedroom accessible house is difficult to find.
    Dr. Free opined that “Lewis will need a fully handicap
    accessible home with a bathroom on the main floor. His home
    needs to be fully wheelchair accessible. He sometimes needs to
    use the wheelchair now and I expect he will need to use it more
    in the future as he ages.” He opined that Lewis’ “current living
    situation is untenable.”
    Although MBC claimed it was willing to make modifica-
    tions to an existing home, it was not willing to purchase or
    construct a home for Lewis. It submitted an affidavit of Scott
    Vogt, the chief operating officer of a real estate company,
    which affidavit discussed homes in the Omaha, Nebraska, area
    meeting Lewis’ requirements. Vogt analyzed the Omaha rental
    market and found at least 105 available rental units that would
    meet Dr. Free’s requirements, ranging from $515 to $1,100
    per month.
    The compensation court found that Lewis’ proposed four-
    bedroom, three-car-garage house was not reasonable and nec-
    essary. However, it also found that Lewis’ injuries limited
    his ability to get around his home and take care of activities
    of daily living. It noted that the doors in his living quar-
    ters are not wide enough, the cabinets are not at the correct
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    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    height, and the ground presents tripping hazards documented
    in the exhibits.
    At the time of the hearing, Lewis resided with family in their
    apartment. The court found that modifications to Lewis’ home
    are necessary and that “[h]ad it not been for the accident and
    injury sustained while employed by MBC Construction [Co.],
    [Lewis] would not now need accessible housing.” However,
    the compensation court explained that such modifications
    could not be completed on the apartment where Lewis was
    staying. It analyzed the case law and concluded, “[i]f modi-
    fications cannot be done to an existing property, the [court]
    reads the statute broadly . . . that would require defendants to
    obtain new living quarters for plaintiff that are accessible.” It
    ordered MBC to find new living quarters within 45 days that
    are accessible.
    The compensation court directed MBC to find “an exist-
    ing home . . . to which modifications need to be made.” As
    an alternative, it directed MBC to provide housing for Lewis
    by “either building or purchasing an accessible home for”
    him. The order provided that regardless of the eventuality, the
    potential housing should include at least 11 specified features
    to make it “accessible for [Lewis’] condition”:
    1. At least three bedrooms;
    2. 36-inch wide doorways throughout the home and at
    all entry points and exit points;
    3. Either zero entry or a ramp for all entry and exit
    points into the structure;
    4. Zero entry for the shower;
    5. Reinforced shower bench and grab bars sufficient for
    his weight;
    6. Cut-outs under the sinks in his home so the wheel-
    chair can fit underneath;
    7. 60 inches between the cabinets so he can move in
    and out while opening the cabinets;
    8. Reinforced grab bars around the toilets and in the
    laundry room for safety;
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    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    9. Nonslip flooring in the bathroom, laundry room,
    and kitchen;
    10. An oversized commode; and
    11. Electrical outlets in the garage, if there is one, for
    charging his scooter and in the bedroom for charging his
    prosthetic leg.
    MBC appeals, and Lewis cross-appeals.
    ASSIGNMENTS OF ERROR
    As its sole assignment of error, MBC claims that the com-
    pensation court erred when it directed MBC “to purchase real
    property for the benefit of . . . Lewis.”
    On cross-appeal, Lewis claims that the Workers’ Compen­sa­
    tion Court erred when it found his proposed new construction
    home was unreasonable and unnecessary. He also claims it
    was clearly wrong for the compensation court not to require
    garage space in its list of required features in its adaptive hous-
    ing award. In view of our disposition of the appeal, we do not
    reach the cross-appeal.
    STANDARD OF REVIEW
    [1] Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), a
    judgment, order, or award of the compensation court may be
    modified, reversed, or set aside only upon the grounds that (1)
    the compensation court acted without or in excess of its pow-
    ers; (2) the judgment, order, or award was procured by fraud;
    (3) there is not sufficient competent evidence in the record to
    warrant the making of the order, judgment, or award; or (4)
    the findings of fact by the compensation court do not support
    the order or award. See Boring v. Zoetis LLC, ante p. 270, 
    959 N.W.2d 795
     (2021).
    [2] On appellate review, the factual findings made by the
    trial judge of the Workers’ Compensation Court have the
    effect of a jury verdict and will not be disturbed unless clearly
    wrong. Melton v. City of Holdrege, ante p. 385, 
    960 N.W.2d 298
     (2021).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    ANALYSIS
    Both the appeal and cross-appeal taken in this case pertain
    to an employer’s responsibility for an injured worker’s home
    to be made accessible for the worker’s work-related injuries.
    As an initial matter, we set forth our statutory and case law on
    Neb. Rev. Stat. § 48-120 (Cum. Supp. 2020) as it applies to
    housing accommodations. Section 48-120(1)(a) provides:
    The employer is liable for all reasonable medical, surgi-
    cal, and hospital services, including plastic surgery or
    reconstructive surgery but not cosmetic surgery when the
    injury has caused disfigurement, appliances, supplies,
    prosthetic devices, and medicines as and when needed,
    which are required by the nature of the injury and which
    will relieve pain or promote and hasten the employee’s
    restoration to health and employment, and includes dam-
    age to or destruction of artificial members, dental appli-
    ances, teeth, hearing instruments, and eyeglasses, but,
    in the case of dental appliances, hearing instruments, or
    eyeglasses, only if such damage or destruction resulted
    from an accident which also caused personal injury enti-
    tling the employee to compensation therefor for disability
    or treatment, subject to the approval of and regulation
    by the Nebraska Workers’ Compensation Court, not to
    exceed the regular charge made for such service in simi-
    lar cases.
    Nebraska courts have previously held that modifications to
    an injured employee’s home can be medical expenses under
    the appliances or supplies categories of § 48-120(1)(a) when
    the modifications are “required by the nature of the injury”
    and if the modifications “relieve pain or promote and hasten
    the employee’s restoration to health and employment.” See,
    Miller v. E.M.C. Ins. Cos., 
    259 Neb. 433
    , 
    610 N.W.2d 398
    (2000); Koterzina v. Copple Chevrolet, 
    1 Neb. App. 1000
    ,
    
    510 N.W.2d 467
     (1993). We note that the first sentence of
    § 48-120 provides a list of examples of reasonable services and
    items preceded by the word “including.” We have previously
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    309 Nebraska Reports
    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    stated that the word “include,” as used in a statute, connotes
    that the provided list of components is not exhaustive and that
    there are other items includable that are not specifically enu-
    merated. In re Interest of Seth C., 
    307 Neb. 862
    , 
    951 N.W.2d 135
     (2020); See, also, Antonin Scalia & Bryan A. Garner,
    Reading Law: The Interpretation of Legal Texts 132 (2012). As
    its sole assignment of error, MBC contends that the compensa-
    tion court ordered it to purchase real property for the benefit of
    Lewis, which MBC understands as a directive that it build or
    purchase an accessible house for Lewis, and that this directive
    exceeded the compensation court’s statutory authority under
    § 48-120. Lewis claims that an employer is potentially liable
    to provide an accessible home for the benefit of an injured
    worker. See, e.g., Squeo v. Comfort Control Corp., 
    99 N.J. 588
    ,
    
    494 A.2d 313
     (1985); Peace River Elec. Corp. v. Choate, 
    417 So. 2d 831
     (Fla. App. 1982); Arce v. Mountain Wood Forestry,
    Inc., No. COA09-490, 
    2010 WL 10962
     (N.C. App. Jan. 5,
    2010) (unpublished disposition listed in table at 
    201 N.C. App. 726
     (2010)). As we read the compensation court’s order, we
    agree it is plausible MBC would potentially be required to
    build or purchase real property thereunder. In this regard, the
    order states at one point that MBC “shall be responsible for
    either building or purchasing an accessible home for [Lewis].”
    However, the evidence relied on by the compensation court
    showed alternative housing arrangements that could meet
    Lewis’ needs, and other portions of the order indicate that the
    compensation court believed MBC’s obligation to Lewis could
    be met through a lease arrangement or by modifying rental
    property. The compensation court’s failure to clearly direct the
    parties’ future action precludes meaningful appellate review,
    and we vacate the order and remand the cause with directions
    to enter an order complying with the requirements of Rule 11
    of the compensation court rules of procedure.
    Rule 11 provides, in relevant part, that “[d]ecisions of
    the court shall provide the basis for a meaningful appellate
    review.” Rule 11 ensures that compensation court orders are
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    309 Nebraska Reports
    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    sufficiently clear in addressing the parties’ requested relief so
    that an appellate court can review the evidence relied upon
    by the trial judge in support of his or her findings. It requires
    “explicit findings of fact and conclusions of law so that all
    interested parties and a reviewing court can determine the legal
    and factual basis upon which a decision is made.” Torres v.
    Aulick Leasing, 
    258 Neb. 859
    , 863, 
    606 N.W.2d 98
    , 102 (2000).
    It also requires a record that elucidates the factors contributing
    to the lower court’s decision. Hynes v. Good Samaritan Hosp.,
    
    285 Neb. 985
    , 
    830 N.W.2d 499
     (2013).
    In several cases where a compensation court made ambig­
    uous or contradictory findings, we found that meaningful
    appellate review was precluded, even though the failure was
    not a jurisdictional defect. Dawes v. Wittrock Sandblasting &
    Painting, 
    266 Neb. 526
    , 
    667 N.W.2d 167
     (2003), disapproved
    on other grounds, Kimminau v. Uribe Refuse Serv., 
    270 Neb. 682
    , 
    707 N.W.2d 229
     (2005); Owen v. American Hydraulics,
    
    254 Neb. 685
    , 
    578 N.W.2d 57
     (1998). The order before us
    is similarly ambiguous and contradictory. In its order, the
    compensation court acknowledged that MBC offered several
    alternatives which MBC was apparently willing to provide for
    Lewis. The court observed: “It did not seem to the Court that
    [MBC] so much objected to providing an accessible home, just
    that what [Lewis] proposed was not reasonable. . . . [MBC has]
    presented evidence that other alternatives are available that
    would meet [Lewis’] needs.”
    The order cited the affidavit of Vogt with respect to available
    properties in the Omaha area. The properties described therein
    included a range of options at many price points, included both
    rental homes and houses for sale, and included homes that
    were already accessible and homes needing modification to be
    accessible. The court continued:
    If an existing home is found for [Lewis] to which modi-
    fications need to be made, [MBC] must also see that
    plans are drawn up for any necessary modifications along
    with a timetable for completion of those modifications
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    LEWIS v. MBC CONSTR. CO.
    Cite as 
    309 Neb. 726
    and those plans must be presented to [Lewis] within this
    45-day deadline. The Court realizes the deadline is tight,
    but there have been numerous delays already on this issue,
    and [Lewis] should not be the one to suffer for them.
    However, the compensation court’s order failed to clearly
    address whether and which of the housing options was reason-
    able and necessary, or the extent of MBC’s specific economic
    obligations, such as insurance, taxes, and rental or mortgage
    payments, once appropriate housing for Lewis is identified.
    Compare, Squeo v. Comfort Control Corp., 
    99 N.J. 588
    , 
    494 A.2d 313
     (1985) (addressing construction costs, maintenance,
    capital repairs, insurance, and taxation); Arce v. Mountain
    Wood Forestry, Inc., No. COA09-490, 
    2010 WL 10962
     (N.C.
    App. Jan. 5, 2010) (unpublished disposition listed in table at
    
    201 N.C. App. 726
     (2010)) (dividing cost of housing between
    employer and worker).
    We have previously reversed orders and remanded causes
    under rule 11 when the order of the compensation court was
    unclear. See, e.g., Rogers v. Jack’s Supper Club, 
    304 Neb. 605
    ,
    
    935 N.W.2d 754
     (2019); Owen v. American Hydraulics, 
    supra;
    Hale v. Standard Meat Co., 
    251 Neb. 37
    , 
    554 N.W.2d 424
    (1996). In a case where the order was ambiguous and contra-
    dictory, we said that “[n]either party should prevail on the basis
    of an ambiguity.” Owen v. American Hydraulics, 
    254 Neb. at 695,
     
    578 N.W.2d at 64
    . Compare Lovelace v. City of Lincoln,
    
    283 Neb. 12
    , 
    809 N.W.2d 505
     (2012) (finding order was not
    confusing and complied with rule 11).
    In the instant case, the order is confusing and the undertak-
    ings of each party are unclear. We vacate the order of the com-
    pensation court and remand the cause for further proceedings.
    On remand, the compensation court shall, inter alia, enter an
    order based on the existing record, clarifying which accessible
    alternative housing options should be pursued and in which
    order, and it should clarify in findings MBC’s economic obli-
    gations under the Nebraska Workers’ Compensation Act with
    respect to the housing ultimately obtained.
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    LEWIS v. MBC CONSTR. CO.
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    309 Neb. 726
    CONCLUSION
    The compensation court erred when it issued a decision
    that did not comply with rule 11, and we vacate the order and
    remand the cause with directions to enter an order in compli-
    ance with rule 11 as described in our opinion above. In so
    doing, we express no opinion on an employer’s potential liabil-
    ity, if any, to construct or purchase adaptive housing under
    § 48-120(1)(a), and we find it unnecessary to consider Lewis’
    cross-appeal.
    Vacated and remanded with directions.
    Stacy, J., concurring.
    I agree with the majority’s conclusion that the order of the
    Workers’ Compensation Court is too ambiguous for meaning-
    ful appellate review and therefore must be vacated. I write
    separately to suggest that any expansion of our holding in
    Miller v. E.M.C. Ins. Cos. 1 presents issues of public policy for
    the Legislature.
    In Miller, the injured worker used a wheelchair and we
    affirmed an order of the Workers’ Compensation Court direct-
    ing the employer’s insurer to pay for the modifications needed
    to make the worker’s home wheelchair accessible. We found
    that Neb. Rev. Stat. § 48-120(1) (Reissue 1993) provided the
    necessary authority for such an order, reasoning:
    [M]odifications to an injured employee’s home [can] be
    considered medical expenses under the appliances or sup-
    plies categories if the modifications are “required by the
    nature of the injury,” and if the modifications “relieve
    pain or promote and hasten the employees’ restoration to
    health and employment.” 2
    Miller found the first requirement was satisfied by evidence
    that doctors had recommended certain modifications to the
    employee’s home to allow him to access and use the home
    1
    Miller v. E.M.C. Ins. Cos., 
    259 Neb. 433
    , 
    610 N.W.2d 398
     (2000).
    2
    
    Id. at 451,
     
    610 N.W.2d at 412
    .
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    from his wheelchair. And the second requirement was satisfied
    by evidence that the employee’s “pain [was] caused by the loss
    of independence to function and to enter and move about his
    own home.” 3 The Nebraska Court of Appeals used similar rea-
    soning in Koterzina v. Copple Chevrolet 4 to affirm a Workers’
    Compensation Court order directing the insurer to pay $18,376
    in construction costs to modify the home of an injured worker
    who used a wheelchair.
    In the 20-plus years since this court’s decision in Miller, the
    relevant provisions of § 48-120(1) on which that holding was
    based have not been amended by the Legislature. And although
    the Legislature has defined some of the terms appearing in
    § 48-120, 5 it has not defined either “appliances” or “supplies”
    for purposes of that statute. Generally, when a statute has been
    judicially construed and that construction has not evoked an
    amendment, it is presumed the Legislature has acquiesced in
    the court’s determination of the Legislature’s intent. 6
    But the primary question raised by the parties in this appeal
    is not whether the employer or its insurer can be ordered to
    pay for modifications to Lewis’ residence to make it accessible
    after his work-related injury. The parties agree that question
    was answered in the affirmative by Miller. Rather, the question
    here appears to be the extent of the employer’s responsibility
    for modifications under Miller and Koterzina when the injured
    worker does not have housing that can be modified.
    We do not reach that question in this appeal, because we
    are not able to discern what the trial court has ordered in that
    regard. Has the court ordered the employer or its insurer to
    purchase or custom build an entire home that is accessible?
    3
    Id. at 452, 
    610 N.W.2d at 412
    .
    4
    Koterzina v. Copple Chevrolet, 
    1 Neb. App. 1000
    , 
    510 N.W.2d 467
     (1993).
    5
    See Neb. Rev. Stat. § 48-120.01 (Reissue 2010) (defining terms “plastic
    surgery” and “reconstructive surgery” for purposes of § 48-120).
    6
    Rodriguez v. Lasting Hope Recovery Ctr., 
    308 Neb. 538
    , 
    955 N.W.2d 707
    (2021).
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    If so, how are the associated costs to be allocated between the
    employer and the employee to ensure the employer pays for the
    necessary modifications under Miller and Koterzina, but not
    for the ordinary features of the home?
    It is a familiar proposition of law that the Nebraska Workers’
    Compensation Court, as a statutorily created court, has only
    such authority as has been conferred upon it by statute, and its
    power cannot extend beyond that expressed in the statute. 7 I see
    nothing in the plain text of § 48-120, or in our current case law,
    that would support expanding the definition of medical “appli-
    ances” or “supplies” to include an entire home. Nor, in my
    opinion, are the courts the proper place to debate the ­various
    public policy concerns implicated by such an expansion.
    So while I agree with the majority that the order of the
    workers’ compensation court is too ambiguous and confusing
    for meaningful appellate review, I respectfully suggest that any
    expansion of the rule announced in Miller and Koterzina impli-
    cates important public policy questions about the compensabil-
    ity of accessible housing for injured workers and is something
    properly left to the Legislature.
    Funke, J., joins in this concurrence.
    7
    Hofferber v. Hastings Utilities, 
    282 Neb. 215
    , 
    803 N.W.2d 1
     (2011).