Hobza v. Seedorff Masonry, Inc.

Meller-Lerman, J.,

concurring in part, and in part dissenting.

I respectfully disagree with that portion of the majority opinion which holds in this scheduled injury case that permanent *677partial disability benefits should have been paid to Hobza as of the date of the injury in this case. I concur with the view of the majority that a denial of attorney fees, interest, and penalties under Neb. Rev. Stat. § 48-125 (Reissue 1998) was correct.

In my opinion, the review panel correctly determined that Hobza was not entitled to permanent partial disability benefits (PPD) until he had reached maximum medical improvement (MMI), and thus, the payments at issue were timely made.

It is undisputed that Hobza received temporary disability benefits when he was unable to work as a result of his injury for the period between his date of injury and his notice of permanent disability. Based on the language of Neb. Rev. Stat. § 48-119 (Reissue 1998), the majority concludes that Hobza’s PPD benefits should be computed from the date of his injury and that he should be paid PPD benefits for any dates on which he did not receive temporary disability benefits, dating back to the date of his injury. I do not think the unadorned use of “injury” and “disability” in § 48-119, when viewed within the context of the workers’ compensation statutory scheme, dictates the result reached by the majority. Rather, the purpose of § 48-119 is to merely define a statutory exclusionary period, or “waiting period,” prior to eligibility for workers’ compensation benefits.

Hobza suffered a rotator cuff injury to his right shoulder, which is a scheduled injury under Neb. Rev. Stat. § 48-121(3) (Reissue 1998). Hobza has received a permanent disability rating of 15 percent to his shoulder. The assignment of a permanent disability rating means that Hobza has reached MMI. See Sheldon-Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000). There is a medical determination in the record of this case that Hobza reached MMI on March 2, 1998. When an injured worker reaches MMI, his or her physical condition is permanent. See, Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991); Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990). See, also, Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998); Kubik v. Union Ins. Co., 4 Neb. App. 831, 550 N.W.2d 691 (1996).

By definition, the term “permanent” means that the condition is no longer “temporary.” See, Gibson, supra; Foreman v. State, 240 Neb. 716, 483 N.W.2d 752 (1992). An injured worker such *678as Hobza cannot fluctuate repeatedly between permanent and temporary disability status with respect to the same scheduled injury. See, e.g., Heiliger v. Walters and Heiliger Electric, Inc., 236 Neb. 459, 472, 461 N.W.2d 565, 574 (1990) (“[w]hen an injured worker has attained maximum physical recovery after a work-related injury, any residual disability from a compensable injury is permanent and prevents the worker’s entitlement to compensation for temporary disability”); Briggs v. Consolidated Freightways, 234 Neb. 410, 413, 451 N.W.2d 278, 282 (1990) (“claimant is not entitled to compensation for temporary total disability after he has achieved maximum medical healing”). See, also, Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990); § 48-121(3) (“compensation for temporary disability shall cease as soon as the extent of the permanent disability is ascertainable”).

By deeming the date Hobza was injured as the date Hobza’s employer should have paid Hobza permanent disability benefits, the majority, incorrectly in my view, causes Hobza to receive temporary disability benefits interspersed with permanent disability benefits. Under the decision reached by the majority, Hobza will receive permanent disability benefits during the period when Hobza was temporarily disabled rather than in accordance with a linear progression anticipated by the statutes with respect to a scheduled injury during which the worker is to receive temporary disability benefits followed by permanent disability benefits. I believe the application of the workers’ compensation statutes urged by the majority to be illogical.

As we recently stated,

When construing statutes, “we are guided by the presumption that the Legislature intended a sensible, rather than an absurd, result in enacting the statute and its amendments.” Battle Creek State Bank v. Haake, 255 Neb. 666, 680, 587 N.W.2d 83, 92 (1998). As a further aid to statutory interpretation, “we must look to the statute’s purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.” Id.

Sheldon-Zimbelman, 258 Neb. at 579, 604 N.W.2d at 403. In my opinion, the majority’s decision to pepper payments of perma*679nent disability to Hobza while he was temporarily disabled is not sensible or required under § 48-119. Therefore, I would affirm the decision of the Nebraska Workers’ Compensation Court review panel.

Stephan, J., joins in this concurrence and dissent.