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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express forMay 2, 2008

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NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Appeal and Error, Jurisdiction
Jurisdiction, Real Property, Tax Exempt Status
Statutes, Employment and Investment Growth Act, Interpretation
Workers' Compensation, Earning Capacity, "Hub" Community
Workers' Compensation, Odd Lot Worker

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Case Summaries

Appeal and Error, Jurisdiction

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The Nebraska Supreme Court here determines that a petition in error is not the means by which to seek a redress of grievances against a county board of equalization which granted tax-exempt status to the property of another. The Nebraska Supreme Court here finds that the Tax Equalization and Review Commission is the proper forum and dismisses the action.

McClellan v. Board of Equal. Of Douglas Cty., 275 Neb. 581 (2008)

Supreme Court Headnotes

Statutes:

1. In the absence of a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

2. Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

3. Legislature: Intent. The fundamental rule in construing statutes is that they shall be construed in pari materia and from their language as a whole to determine the intent of the Legislature; all subordinate rules are mere aids in reaching this fundamental determination.

Jurisdiction:

1. Words and Phrases. Subject matter jurisdiction is a court’s power to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action before the court and the particular question which it assumes to determine.

Actions:

1. Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

Standing:

1. Jurisdiction:

a. Justiciable Issues. As an aspect of jurisdiction and justi-ciability, standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court’s jurisdiction and justify the exercise of the court’s remedial powers on the litigant’s behalf.

b. Parties: Judgments: Appeal and Error. It is generally the case that only parties to a judgment or their privies have standing to invoke a higher court’s jurisdiction for review of the judgment.

2. Municipal Corporations. generally, in order to have standing to bring suit to restrain an act of a municipal body, the persons seeking such action must show some special injury peculiar to themselves aside from a general injury to the public, and it is not sufficient that they have merely a general interest common to all members of the public.

Taxation:

1. Appeal and Error. Neb. Rev. Stat. § 77-202.04 (Cum. Supp. 2006) delineates who may appeal from the decision of the county board of equalization on a tax exemption determination.

Appeal and Error:

1. Words and Phrases. The word “appeal” is a word of general application in the law. Ordinarily it refers to the removal of proceedings from one court or tribunal to another for review.

Date Filed and Case No.: May 2, 2008. No. S-06-1072.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may2/s06-1072.pdf

Court Appealed From: District Court for Douglas County: J. Michael Coffey, Judge.

Attorneys for the Appeal: Michael D. McClellan for Michael D. McClellan et al., appellants. Kristin M. Lynch for appellee Board of Equalization of Douglas County. Gerard T. Forgét III and William E. Pfeiffer for appellee Intercessors of the Lamb, Inc.

Justices: Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Not Participating: Wright, J.

Authored By: McCormack, J.

Summary: The appellants, taxpayers and homeowners in Douglas County, appeal from the denial of their petition in error to the district court, which petition sought review of tax-exempt status granted to three neighboring residential properties owned by the Intercessors of the Lamb, Inc. (Intercessors). The Intercessors are a Catholic religious organization formed as a nonprofit corporation. The Archdiocese of Omaha describes the Intercessors as a public association of approximately 40 laypersons conducting their activities under the authority of the Archbishop of Omaha. The core group of laypersons have taken hermit vows which are recognized by the Catholic Church. Four priests are also affiliated with the association. Eleven residences and some real property owned by the Intercessors in an area known as Ponca Hills have already been deemed tax exempt and are not the subject of the current appeal. The Intercessors acquired three additional residences in Ponca Hills that, in 2005, they asked also to be designated as tax exempt.

A public hearing before the Douglas County Board of Equalization (Board) was held on the Intercessors’ request to exempt the three properties from taxation. Michael D. McClellan, a taxpayer in Douglas County and an attorney for a neighborhood association in Ponca Hills, along with several residents and members of the Ponca Hills community, were allowed to express their objections before the Board. The Board ultimately granted the exemptions.

McClellan and the other objectors (hereinafter petitioners), filed a petition in error in the district court contesting the Board’s grant of exempt status for the three properties. The district court affirmed the decision of the Board, and the petitioners appealed.

Was the Petition in Error the proper means to seek review of the Board’s decision? In that this case involved a complaint against a county board of equalization, the Court reviewed the requirement of “standing” necessary to file a complaint. They noted that while there is an exception to the “special injury” rule of standing for persons objecting to an illegal expenditure of public funds or an illegal increase in the burden of municipal taxation, there does not appear to be any common-law right to seek direct review of an order relating to the exemption of another taxpayer’s property. Nor is there any constitutional right to lodge such an appeal. Thus, as is generally the case regarding the right to appeal, the question of whether a taxpayer may seek review of the exempt status of another taxpayer’s property depends on whether the Legislature conferred such a right. “It is to that analysis that we now turn” wrote the Court.

In considering the legislation that preceded and established the Tax Equalization and Review Commission (TERC) the Court’s inquiry turned to one’s standing to invoke court action when complaining of error by the county board. Section 77-1510 has, since its enactment in 1903, provided a specific mode of direct appeal from any action of a board of equalization. Until the creation of the TERC, such appeal was taken to the district courts. Of particular relevance here was Bemis v. Board of Equalization of Douglas County, where the Court explained that another statute, Neb. Rev. Stat. § 77-202.04 delineated “who may appeal from the decision of the county board of equalization on a tax exemption determination.” The Bemis Court held that the county assessor, because he was not specified in § 77-202.04, had no standing to appeal the grant of an exemption of a taxpayer’s property.

After Bemis, § 77-202.04 was amended and at the time the Intercessors’ exemptions were upheld by the Board in this case, the statute stated that “Only the county assessor may appeal the grant of such an exemption by a county board of equalization.” Other appeals pursuant to this section were to be made to the TERC. The TERC was created in 1995 and provided that the TERC had the power and duty to hear and determine appeals of decisions of any county board of equalization granting or denying tax-exempt status for real or personal property. Rather than having valuation decisions lie with the myriad of district courts, a single TERC was intended to produce “fairer,” more “consistent” appeal results.

Based on the plain language of the statutes, in particular the TERC statute, the Court did not find any preexisting “right to a petition in error.” Under common law, taxpayers do not have standing to seek direct review of the tax-exempt status of someone else’s property. “Moreover, a ‘petition in error’ is simply a method of review, and it is not, as the petitioners suggest, more akin to a right of action” wrote the Court. Because there is no preexisting common-law right to a petition in error under these circumstances, the Court said it was not, as the petitioners suggest, subject to the rule strictly construing against the abrogation of such a right to a petition in error.

Reviewing the statute and the Legislature’s intent when creating the TERC, the Court found that the Legislature’s stated purpose in the TERC Act was to create an efficient mode of review by a single body which would provide a more consistent review of tax exemption and equalization decisions made by a board of equalization. The language of § 77-202.04 very specifically lists who may appeal from exemption decisions. The Legislature did not see fit to allow every indirectly affected taxpayer to appeal from the exemption status of someone else’s property. Instead, the Legislature determined that giving standing to the county assessor to appeal the grant of an exemption was sufficient to protect the public’s general interest in what properties are included on the tax rolls.

Conclusion: The Nebraska Supreme Court concluded that the district court lacked jurisdiction over the petition in error that is the subject of this appeal. When a lower court lacks the authority to exercise its subject matter jurisdiction to adjudicate the merits of the claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court. “However,” they said, “when an appeal is dismissed because the lower court lacked jurisdiction to enter the order appealed from, an appellate court may nevertheless enter an order vacating the order issued by the lower court without jurisdiction.” The Court therefore vacated the order of the district court and dismissed the appeal. VACATED AND DISMISSED.

Jurisdiction, Real Property, Tax Exempt Status

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McClellan v. Board of Equal. Of Douglas Cty., 275 Neb. 581 (2008)

Supreme Court Headnotes

Statutes:

1. In the absence of a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

2. Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

Jurisdiction:

Actions:

1. Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

Standing:

1. Jurisdiction:

Taxation:

1. Appeal and Error. Neb. Rev. Stat. § 77-202.04 (Cum. Supp. 2006) delineates who may appeal from the decision of the county board of equalization on a tax exemption determination.

Appeal and Error:

1. Words and Phrases. The word “appeal” is a word of general application in the law. Ordinarily it refers to the removal of proceedings from one court or tribunal to another for review.

Date Filed and Case No.: May 2, 2008. No. S-06-1072.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may2/s06-1072.pdf

Court Appealed From: District Court for Douglas County: J. Michael Coffey, Judge.

Justices: Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

Not Participating: Wright, J.

Authored By: McCormack, J.

Statutes, Employment and Investment Growth Act, Interpretation

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This case looks at the Employment and Investment Growth Act, commonly referred to as L.B. 775, to determine whether the Nebraska State Tax Commissioner and a district court erred in determining that a company had failed to qualify for certain tax exemptions.

Goodyear Tire & Rubber Co. v. State, 275 Neb. 594 (2008)

Supreme Court Headnotes

Administrative Law:

1. Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. ••• When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

Statutes:

1. Appeal and Error. The meaning of a statute is a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. ••• In the absence of ambiguity, courts must give effect to the statutes as they are written. If the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.

2. Taxation. Tax exemption provisions are strictly construed, and their operation will not be extended by construction. Property which is claimed to be exempt must clearly come within the provision granting exemption from taxation.

Taxation:

1. Proof. The party claiming an exemption from taxation must establish entitlement to the exemption.

Words and Phrases.

1. The word “or,” when used properly, is disjunctive.

Date Filed and Case No.: May 2, 2008. No. S-06-1103.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may2/s06-1103.pdf

Court Appealed From: District Court for Lancaster County: Jeffre Cheuvront, Judge.

Attorneys for the Appeal: John M. Boehm and Quentin (Doug) Sigel for The Goodyear Tire & Rubber Company, appellant. Jon Bruning and L. Jay Bartel for State of Nebraska et al., appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-lerman, JJ.

Authored By: McCormack, J.

Summary: The Goodyear Tire & Rubber Company (Goodyear) appeals from the district court’s order affirming the decision by the Nebraska State Tax Commissioner (the Commissioner) to deny a portion of Goodyear’s claim for a tax refund under the employment and Investment growth Act, commonly referred to as “L.B. 775.” Goodyear sought a refund for components used to repair or replace parts of equipment utilized in the project covered by the L.B. 775 agreement entered into between Goodyear and the Nebraska Department of Revenue (the department). The Commissioner’s order states that the “parties have stipulated that the sole issue to be decided is ‘whether the transactions listed on exhibits 9 and 10 are for the purchase of qualified property pursuant to Neb. Rev. Stat. §77-4105(3)(a)(i)(Reissue 2003).’” Pursuant to the stipulation, both the Commissioner and the district court reviewed this sole issue. The district court, in its de novo review, concurred with the Commissioner’s interpretation of the term “qualified property.” The court found that the “parts used to repair equipment after such equipment was placed in service at the project are not ‘qualified property’ as defined in Section 77-4103(13).” The district court also determined that the Commissioner was not required to adopt and promulgate rules or regulations with regard to the Commissioner’s interpretation of L.B. 775.

Did the district court err in affirming the Commissioner’s finding that the repair and replacement parts for which Goodyear sought a refund are not qualified property under L.B. 775?. Goodyear argued that the definition of qualified property has been misconstrued by the Commissioner and the district court in that they wrongly interpreted qualified property as including components only where the components are placed on equipment newly located at the project covered under the L.B. 775 agreement. Looking to the Statute, the Court said that it has stated that the word “or,” when used properly, is disjunctive. Here, “qualified property,” therefore, includes two types of property: (1) any tangible property subject to depreciation, amortization, or other recovery under the Internal Revenue Code of 1986 or (2) components of such property. The question left for the Court to decide was what the phrase “of such property” entails.

The last portion of the first sentence of § 77-4103(13) states that tangible property is property that “will be located and used at the project.” The Court said that this phrase limits the property that is qualified under the statute. Thus, tangible property that is subject to depreciation, amortization, or other recovery under the Internal Revenue Code of 1986 is not qualified unless it will be used and located at the project. Because “of such property” refers to tangible property that is otherwise covered under the statute, components are not qualified unless the components are part of tangible property that will be used and located at the project.

The term “component” encompasses a wide variety of tangible property used in business and industry. Following the principle that tax exemptions are to be strictly construed, the Court read § 77-4103(13) to require that a component itself be “of a type subject to depreciation, amortization, or other recovery under the Internal Revenue Code” in order to constitute “qualified property.” The Court found this consistent with L.B. 775's stated policy of encouraging new business investment in Nebraska. The record did not reflect that any of the repair and replacement “components” for which Goodyear claimed sales and use tax refunds were themselves depreciable or subject to amortization or other recovery. For this reason, the Court concluded that the refund claim was properly denied.

Did the district court err when it concluded that the Commissioner’s decision should not be set aside because of the department’s failure to adopt and promulgate rules regarding the department’s interpretation of “qualified property?” In the present case, the Court said that § 77-4111 requires the Commissioner to adopt and promulgate those rules and regulations, but only those rules that are necessary for carrying out the purposes of L.B. 775. The purpose of L.B. 775 is to “accomplish economic revitalization of Nebraska” and to “encourage new businesses to relocate to Nebraska, retain existing businesses and aid in their expansion, promote the creation and retention of new jobs in Nebraska, and attract and retain investment capital in the State of Nebraska.” They concluded that promulgating rules and regulations regarding interpretation of qualified property is not necessary for carrying out those purposes.

Conclusion. For those reasons the Nebraska Supreme Court affirmed the decision of the district court. AFFIRMED.

Workers' Compensation, Earning Capacity, "Hub" Community

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This appeal presents two issues. First, in determining a worker’s loss of earning power, did the trial judge err by excluding the place was she was employed and injured (Lincoln) and finding that the relevant labor market was the community which she moved to in good faith (Table Rock)? Second, did the trial judge err in finding that the worker was totally and permanently disabled as an odd-lot worker? The Nebraska Supreme Court concluded that the trial judge correctly decided both issues.

Money v. Tyrrell Flowers, 275 Neb. 602 (2008)

Supreme Court Headnotes

Workers’ Compensation:

1. A trial judge should base the compensation an employer pays on the worker’s loss of earning power. ••• The first step in identifying the relevant labor market for assessing a worker’s loss of earning power is to determine whether the hub is where the injury occurred, or where the claimant resided when the injury occurred, or where the claimant resided at the time of the hearing. ••• If a claimant relocates to a new community in good faith, the new community will serve as the hub community from which to assess the claimant’s loss of earning power. ••• After a trial judge determines a claimant’s hub community, the trial judge may also consider whether surrounding communities are part of the relevant labor market. ••• Whether a claimant should reasonably seek work in an area outside the hub community is a determination based on the totality of circumstances. ••• In determining whether a surrounding community should be included in the relevant labor market, a trial judge should consider the following factors: (1) availability of transportation, (2) duration of the commute, (3) length of workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, (5) economic feasibility of a person in the claimant’s position working in that location, and (6) whether others who live in the claimant’s hub community regularly seek employment in the prospective area. ••• Under the odd-lot doctrine, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. ••• Whether a plaintiff is totally and permanently disabled is a question of fact.

2. Appeal and Error. Under Neb. Rev. Stat. § 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (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. ••• 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. ••• In workers’ compensation cases, an appellate court is obligated to make its own determinations regarding questions of law.

3. Expert Witnesses:

a. Presumptions. The opinions of a court-appointed vocational rehabilitation expert regarding vocational rehabilitation and loss of earning power have a rebuttable presumption of validity.

b. Proof. If an employer believes a vocational rehabilitation expert has incorrectly selected the relevant geographic areas, the employer has the burden to rebut the expert’s opinion.

4. Proof. To recover workers’ compensation benefits, a claimant must prove by a preponderance of the evidence that an accident or occupational disease arose out of or occurred in the course of the employment and that the accident or occupational disease proximately caused an injury which resulted in compensable disability. ••• To recover workers’ compensation benefits, an injured worker must prove by competent medical testimony a causal connection between the alleged injury, the employment, and the disability.

5. Expert Witnesses. In assessing a claimant’s disability, physical restrictions and impairment ratings are important, but once the claimant establishes the cause of disability, the trial judge is not limited to this evidence and may also rely on the claimant’s testimony to determine the extent of the disability.

6. Words and Phrases. disability, in contrast to impairment, is an economic inquiry. It can be determined only within the context of the personal, social, or occupational demands or statutory or regulatory requirements that the individual is unable to meet because of the impairment. ••• Total disability does not mean a state of absolute helplessness. It means that because of an injury, (1) a worker cannot earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform or (2) the worker cannot earn wages for work for any other kind of work which a person of his or her mentality and attainments could do.

Appeal and Error.

1. Under the law-of-the-case doctrine, an appellate court’s holdings on questions presented to it in reviewing the trial court’s proceedings become the law of the case; those holdings conclusively settle, for that litigation, all matters ruled upon, either expressly or by necessary implication. ••• Generally, absent extraordinary circumstances, a court should be reluctant to revisit its own prior decision or that of another court in a single case. ••• The law-of-the-case doctrine does not apply in a later appeal of the same action if a higher court has since issued a contrary decision.

2. Res Judicata: Collateral Estoppel. Unlike the doctrines of res judicata and collateral estoppel, which involve successive suits, the law-of-the-case doctrine involves successive stages of one continuing lawsuit.

Actions:

1. Appeal and Error. On appeal, the law-of-the-case doctrine is a rule of practice that operates to direct an appellate court’s discretion, not to limit its power.

Judgments:

1. Appeal and Error. When testing the trial judge’s findings of fact, an appellate court considers the evidence in the light most favorable to the successful party and gives the successful party the benefit of every inference reasonably deducible from the evidence.

Trial:

1. Witnesses. As the trier of fact, the trial judge determines the credibility of the witnesses and the weight to give their testimony.

Date Filed and Case No.: May 2, 2008. No. S-07-681.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may2/s07-681.pdf

Court Appealed From: Workers’ Compensation Court. Affirmed.

Attorneys for the Appeal: Dallas D. Jones and Amanda A. Dutton for Tyrrell Flowers and Continental Western Group, appellants. Jeffry D. Patterson for Christine M. Money, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Summary: The appellee, Christine M. Money, suffered an injury while working for Tyrrell Flowers in Lincoln, Nebraska. Afterward, she moved 75 miles away to Table Rock, Nebraska. Tyrrell Flowers employed Money to work in the greenhouse and make deliveries for $8 an hour. In May 2000, she tripped on a small ledge and fell suffering injuries to her left chest wall, left shoulder, and neck. Testing later showed she had a herniated disk in her neck and after conservative treatment failed, a neurosurgeon recommended spinal surgery. Sometime in 2001, Money and her husband moved from Lincoln to Table Rock (75 miles southeast of Lincoln) to live in a friend’s house while the friend was absent. Money was living in Table Rock when she underwent surgery. Money continued to have physical pain following the surgery and was unable to stay employed due to the pain.

In its order, the trial judge stated that it was Tyrrell’s position the Money should be required to move back to Lincoln because she would have greater job opportunities. The judge found, however, that Money had not moved to Table Rock in bad faith or to reduce her employment opportunities. He concluded that her move for low-cost housing was, and continued to be, motivated by economic necessity. The judge further found that requiring Money to drive to Lincoln for a job that paid $6 to $8 per hour was not economically feasible. Accordingly, he concluded that the relevant labor market was in and around Table Rock. Regarding Money’s impairment, the trial judge found that the evidence showed Money had made a reasonable and good faith effort to find employment but had failed. He concluded that this evidence rebutted an expert’s opinion regarding Money’s loss of earning capacity. He further concluded that Money was “totally disabled and entitled to permanent total loss of earning power” because employers would not hire her.

The Workers’ Compensation Court Review Panel agreed with Tyrrell that the trial judge erred in limiting Money’s labor market to Table Rock even if she moved there in good faith. It reasoned that limiting the labor market to a claimant’s new community would open the door to unscrupulous behavior. It remanded with instructions for the trial judge to reassess Money’s permanent loss of earning power.

On remand, the trial judge stated that its “reassessment of [Money’s] loss of earning power includes the labor market in and around Table Rock, Nebraska, and the labor market at the time of her injury.” He again found Money totally disabled under the odd-lot doctrine in both labor markets. The judge explicitly stated that because of her significant physical impairments, coupled with her intellectual deficiencies, she would be hired only by very sympathetic employers.

Tyrrell again appealed and the review panel rejected Tyrrell’s argument that the record lacked evidence of Money’s loss of earning capacity in the Lincoln labor market.

Tyrrell appealed and the Nebraska Supreme Court wrote the opinion.

Did the review panel err in affirming the trial judge’s finding regarding Money’s earning capacity? Tyrrell argued that Money failed to prove loss of earning power (earning capacity) because she failed to present any evidence of her ability to procure employment in the Lincoln labor market. One of the factors used to assess earning power is the worker’s general ability to procure employment. In Giboo v. Certified Transmission Rebuilders, ante p. 369, 746 N.W.2d 362 (2008) the Court stated that this factor depends partly upon the number and type of jobs available in a given market. (Thus, in Giboo, the Court concluded that the first step in identifying the relevant labor market for assessing a worker’s loss of earning power is to determine whether the “hub” is where the injury occurred, or where the claimant resided when the injury occurred, or where the claimant resided at the time of the hearing.

Looking to Giboo the Court reminded that it had held: If a claimant relocates to a new community in good faith, the new community will serve as the hub community from which to assess the claimant’s loss of earning power. Here, the holding in Giboo conflicted with the review panel’s determination that a court must assess loss of earning power based on both labor markets. The Court concluded that Money did not have to show her loss of earning power in both the Lincoln and the Table Rock communities.

Since Money did not appeal the review panel’s decision in Money’s first appeal decision, did that ruling—that a trial judge must consider both labor markets—became the law of the case? Tyrrell contended that when the review panel issued its decision in Money’s first appeal, neither the Nebraska Supreme Court nor the Court of Appeals, in a relocation case, had addressed the appropriate labor market (i.e. Giboo had not been decided.) Because Money did not appeal that decision, Tyrrell argued the review panel’s first decision—that a trial judge must consider both labor markets—became the law of the case. The Court held that the law-of-the-case doctrine does not apply in a later appeal of the same action if a higher court has since issued a contrary decision. The doctrine yields to an appellate court’s duty to oversee the development of consistent case law. They wrote that this case presented such a circumstance and concluded that the holding in Giboo is the controlling authority to determine the relevant labor market for assessing Money’s loss of earning power. “Thus, we disapprove the review panel’s first decision.” Their disapproval of the first decision, however, does not affect the final judgment here. Following remand, the trial judge found that Money was totally disabled in both the Lincoln and the Table Rock labor markets which finding resulted in the same award of benefits that Money would have received if the review panel had correctly affirmed the trial judge’s first order. “The rules set forth in Giboo are the rules that the trial judge applied in the first proceeding. He correctly determined that the area around Table Rock was the relevant labor market and that Lincoln should not be included in the labor market to assess Money’s loss of earning power.”

Did the trial judge err in concluding that Money was entitled to permanent total disability as an odd-lot worker? Tyrrell argued that the trial judge erred in failing to require Money to undergo additional vocational rehabilitation and that Money should have continued to search for employment before the trial judge concluded that she was permanently and totally disabled. The Court interpretted Tyrrell’s argument to be that Money is not totally and permanently disabled because medical experts believed she could perform some work functions. The Court said that they have previously rejected such contentions when reviewing findings of disability under the odd-lot doctrine. Looking over the record, the Court concluded that Money’s evidence of her significant physical impairments after the injury and her limited cognitive abilities was sufficient to support the trial judge’s finding of permanent and total disability under the odd-lot doctrine.

Conclusion: The Nebraska Supreme Court disapproved the review panel’s first decision. This disapproval, however, did not affect Money’s award of benefits. After the trial judge again determined in the subsequent proceeding that Money was entitled to benefits for total disability, the review panel affirmed the award on different grounds. Because the Court concluded that the trial judge was not clearly wrong in finding that Money was totally and permanently disabled in the Table Rock labor market under the odd-lot doctrine of disability, they affirmed. AFFIRMED.

Workers' Compensation, Odd Lot Worker

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Money v. Tyrrell Flowers, 275 Neb. 602 (2008)

Supreme Court Headnotes

Workers’ Compensation:

3. Expert Witnesses:

a. Presumptions. The opinions of a court-appointed vocational rehabilitation expert regarding vocational rehabilitation and loss of earning power have a rebuttable presumption of validity.

b. Proof. If an employer believes a vocational rehabilitation expert has incorrectly selected the relevant geographic areas, the employer has the burden to rebut the expert’s opinion.

Appeal and Error.

Actions:

1. Appeal and Error. On appeal, the law-of-the-case doctrine is a rule of practice that operates to direct an appellate court’s discretion, not to limit its power.

Judgments:

Trial:

1. Witnesses. As the trier of fact, the trial judge determines the credibility of the witnesses and the weight to give their testimony.

Date Filed and Case No.: May 2, 2008. No. S-07-681.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/may/may2/s07-681.pdf

Court Appealed From: Workers’ Compensation Court. Affirmed.

Attorneys for the Appeal: Dallas D. Jones and Amanda A. Dutton for Tyrrell Flowers and Continental Western Group, appellants. Jeffry D. Patterson for Christine M. Money, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Tyrrell again appealed and the review panel rejected Tyrrell’s argument that the record lacked evidence of Money’s loss of earning capacity in the Lincoln labor market.

Tyrrell appealed and the Nebraska Supreme Court wrote the opinion.