Straub v. City of Scottsbluff

[6] We view an attorney’s failure to respond to inquiries and
requests for information from the Counsel for Discipline as a
grave matter and as a threat to the credibility of attorney disci-
plinary proceedings. Respondent’s failure to reply to repeated
inquiries from the Counsel for Discipline demonstrates nothing
less than a total disrespect for our disciplinary jurisdiction and
a lack of concern for the protection of the public, the profes-
sion, and the administration of justice.
In light of the foregoing precedent and the particular facts of
this case, and with no mitigating circumstances apparent from
the pleadings, we find and hereby order that respondent should
be indefinitely suspended from the practice of law in the State
of Nebraska, with a minimum suspension of 2 years, effective
on June 3, 2009, the date of our order of temporary suspen-
sion. Any application for reinstatement filed by respondent
after the minimum suspension period shall include a showing
which demonstrates her fitness to practice law. Respondent is
directed to comply with Neb. Ct. R. § 3-316 and to pay costs
and expenses of these proceedings.
Judgment of suspension.
 Id.
 See id.
StRAub v. CIty of SCottSbluff 	163
Cite as 20 Neb. 163
RobeRt A. stRAub, Appellee , v. C ity of sCottsbluff,
A politiCAl subdivision, And leAgue A ssoCiAtion
of R isk mAnAgement, AppellAnts.
4 N.W.2d 6
filed July 2, 2010. 	No. S-09-1121.
1. Workers’ Compensation: Appeal and Error. 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.
2. ____: ____. In workers’ compensation cases, an appellate court is obligated to
make its own determinations regarding questions of law.
3. Workers’ Compensation. the dual purpose rule provides that if an employee is
injured in an accident while on a trip which serves both a business purpose and
a personal purpose, the injuries are compensable as arising out of the course and
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

scope of employment, provided the trip involves some service to be performed
on the employer’s behalf which would have occasioned the trip, even if it had not
coincided with the personal journey.
4. ____. An employee’s injury which occurs en route to a required medical appoint-
ment that is related to a compensable injury is also compensable, as long as the
chosen route is reasonable and practical.
5. Workers’ Compensation: Appeal and Error. upon appellate review, the find-
ings of fact made by the trial judge of the compensation court have the effect of
a jury verdict and will not be disturbed unless clearly wrong.
6. Workers’ Compensation: Evidence: Appeal and Error. In testing the sufficiency
of the evidence to support the findings of fact by the Workers’ Compensation
Court, the evidence must be considered in the light most favorable to the suc-
cessful party, every controverted fact must be resolved in favor of the successful
party, and the successful party will have the benefit of every inference that is
reasonably deducible from the evidence.
. Workers’ Compensation: Appeal and Error. Earning power, as used in Neb.
Rev. Stat. § 4-121(2) (Reissue 2004), is not synonymous with wages, but
includes eligibility to procure employment generally, ability to hold a job
obtained, and capacity to perform the tasks of the work, as well as the ability of
the worker to earn wages in the employment in which he or she is engaged or for
which he or she is fitted.
Appeal from the Workers’ Compensation Court. Affirmed.
John W. Iliff and Jessica S. Wolff, of Gross & Welch, P.C.,
l.l.o., for appellants.
Kristine R. Cecava and Michael J. Javoronok, of Javoronok
& Neilan, for appellee.
H eAviCAn, 	C.J., 	WRigHt, 	C onnolly, 	geRRARd, 	stepHAn,
mCC oRmACk, and milleR-leRmAn, JJ.
H eAviCAn, C.J.
INtRoDuCtIoN
the City of Scottsbluff and the league Association of Risk
Management (collectively appellants) appeal the decision of
the three-judge panel of the Nebraska Workers’ Compensation
Court, affirming the trial court’s award. the trial court awarded
Robert A. Straub the maximum weekly wage of $600 for 13⁄
weeks of total temporary disability and $229.21 for 294⁄
weeks for a 35-percent loss of earning power.
164 	20 NEbRASKA REPoRtS

bACKGRouND
Straub is a sergeant with the Scottsbluff Police Department
and was employed in that capacity when he suffered injuries
as a result of two accidents within a 6-week period of time.
the first accident occurred on June 25, 2006, when Straub was
struck by a passing vehicle during a routine traffic stop. Straub
recorded the traffic stop, and the recorded video was made part
of the record as a DVD. from the DVD, it appears as though
Straub was struck in his left hip by the side mirror of the pass-
ing vehicle. He also suffered a puncture wound to his lower
leg. Straub stated that he did not know how his lower leg was
punctured, but that it happened during the accident.
After the accident, Straub went to a hospital emergency
room and stated that he was hurting “from [his] hips to [his]
toes.” the doctor who treated him recommended that Straub
use ice and follow up as soon as possible with an orthopedist.
the accident resulted in a fractured left iliac wing and lower
back complaints with associated soft tissue injuries. Straub’s
chosen orthopedist recommended that Straub take some time
off of work. Straub testified that he had begun taking days
off at the time of the incident and had returned to work on
Wednesday, June 2, 2006. Straub testified that he continued
to have pain in his hip, lower back, and midback, and pain and
numbness in his legs.
Straub further testified that he continued to have pain and
that his orthopedist ordered an MRI. on August , 2006, while
on his way to a hospital for the MRI, Straub’s vehicle was hit
by another vehicle. Straub had taken the day off from work
and had taken his children to a babysitter’s house. the acci-
dent occurred between the babysitter’s house and the hospital.
Straub testified that the impact occurred on the driver’s side
and that he was thrown forward in the vehicle. Straub testified
that his chest, back, and neck ached immediately after the acci-
dent and that he later developed shoulder pain. Straub stated
that he had braced himself against the vehicle’s dashboard on
impact and that he believed that was how his shoulder had
been injured.
StRAub v. CIty of SCottSbluff 	165
Cite as 20 Neb. 163

the Workers’ Compensation Court found that both accidents
were work related and compensable. Specifically, the trial court,
citing larson’s Workers’ Compensation law,1 determined that
the car accident was compensable because Straub was on his
way to a doctor’s appointment due to injuries received during
the first work-related incident. the trial court did not find suf-
ficient evidence that Straub’s shoulder injuries stemmed from
a work-related accident, but did find sufficient evidence that
his left hip, lower back, and left lower leg were injured. the
trial court found that Straub had a 35-percent loss of earning
power as a result of the accidents. the trial court then awarded
$600 to Straub for 13⁄ weeks for total temporary disability and
$229.21 per week for 294⁄ weeks for a 35-percent loss of
earning power. Appellants were also ordered to pay medical
expenses for or on behalf of Straub, or to reimburse Straub or
his health care provider.
Appellants appealed the decision of the trial court, and the
three-judge panel of the Workers’ Compensation Court issued
an order of affirmance on review. Appellants appeal from that
order, and we affirm the award.
ASSIGNMENtS of ERRoR
Appellants assign, restated and consolidated, that the trial
court erred in determining that (1) the accident on August
, 2006, occurred within the scope and course of Straub’s
employment, (2) Straub had a 35-percent loss of earning capac-
ity, and (3) the DVD of the first accident shows that Straub’s
left hip was injured.
StANDARD of REVIEW
[1] 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.2
1 1 Arthur larson & lex K. larson, larson’s Workers’ Compensation law
§ 10.0 (2009).
2 Money v. Tyrrell Flowers, 25 Neb. 602, 4 N.W.2d 49 (200).
166 	20 NEbRASKA REPoRtS

[2] In workers’ compensation cases, an appellate court is
obligated to make its own determinations regarding questions
of law.3
ANAlySIS
stRAub’s inJuRies on August 7, 2006,
WeRe C ompensAble
Appellants first argue that Straub’s injuries on August ,
2006, were not compensable injuries because they did not arise
out of and in the course of his employment. the record indi-
cates that after Straub’s first accident, his orthopedist ordered
an MRI to be administered at a Scottsbluff hospital. Straub
was not working on the day of the appointment, and he drove
from his house to the babysitter’s house to drop off his children
before driving to the hospital. the second accident occurred on
the way to the hospital from the babysitter’s house.
[3] the trial court cited Kraus v. Jones Automotive, Inc.,4
for the proposition that a trip serving a dual purpose was still
compensable under certain circumstances. the dual purpose
rule provides:
[I]f an employee is injured in an accident while on a trip
which serves both a business and a personal purpose, the
injuries are compensable as arising out of the course and
scope of employment provided the trip involves some
service to be performed on the employer’s behalf which
would have occasioned the trip, even if it had not coin-
cided with the personal journey.5
In Kraus, the Court of Appeals held that a plaintiff who had
been on a business trip from omaha, Nebraska, to lincoln,
Nebraska, was acting within the course and scope of his
employment even though he had embarked on a private errand.
3 Id.
4 Kraus v. Jones Automotive, Inc., 3 Neb. App. 5, 529 N.W.2d 10 (1995),
citing Jacobs v. Consolidated Tel. Co., 23 Neb. 2, 46 N.W.2d 64
(1991).
5 Jacobs, supra note 4, 23 Neb. at 5, 46 N.W.2d at 66.
StRAub v. CIty of SCottSbluff 	16
Cite as 20 Neb. 163

the record demonstrated that the plaintiff had driven from
lincoln toward Grand Island, Nebraska, on a personal errand,
but had turned around and was returning to omaha when he
was killed in a one-vehicle accident.6
the trial court also cited larson’s Workers’ Compensation
law § 10.0, “Accident During trip to Doctor’s office,”
which states that an accident occurring on a trip to a doctor’s
office or a place of testing ordered by the doctor is generally
compensable if the original injury was also compensable. the
trial court also pointed out that the Workers’ Compensation
Court routinely orders payment for mileage to and from doc-
tor’s visits and testing.
We have specifically declined to address this issue in the
past. And while some courts have rejected the rule found
in Professor larson’s treatise,9 other courts have allowed
workers to recover for injuries sustained on the way to a
medical appointment for a compensable injury.10 We find
Taylor v. Centex Construction Co.11 particularly persuasive in
this case.
In Taylor, the employee sustained an eye injury in the course
of his employment. He was granted leave to go to the doctor.
After the doctor’s appointment, the employee stopped for lunch
and to have the company truck serviced, and he then proceeded
to drive back to work. While driving back to his jobsite, the
employee was involved in a car accident and was injured. the
6 Kraus, supra note 4.
 1 larson & larson, supra note 1.
 Phipps v. Milton G. Waldbaum & Co., 239 Neb. 00, 4 N.W.2d 919
(1991).
9 Bear v. Anson Implement, Inc., 96 S.W.2d 553 (Mo. App. 199); Lee v.
Industrial Com’n, 262 Ill. App. 3d 110, 635 N.E.2d 66, 200 Ill. Dec.
42 (1994); Gayler v. North American Van Lines, 566 N.E.2d 4 (Ind.
App. 1991).
10 Manuel v. Davidson Transit Org., No. M200-0150-CV-R3-WC, 200
Wl 436492 (tenn. Spec. Workers’ Comp. Panel 200); Kehr Mid-West
Iron v. Bordner, 29 N.E.2d 213 (Ind. App. 2005); American Mut. Ins. v.
Hernandez, 252 Wis. 2d 155, 642 N.W.2d 54 (2002); Taylor v. Centex
Construction Co., 191 Kan. 130, 39 P.2d 21 (1963).
11 Taylor, supra note 10.
16 	20 NEbRASKA REPoRtS

employer argued that the second injury was not compensable,
because it did not arise out of or in the scope of his employ-
ment and because he deviated from the most direct route back
to work.12
the Kansas court found that because the workers’ compen-
sation statute required employees to undergo medical treatment
for work-related injuries, an injury sustained on the way to
such medical treatment occurred in the course and scope of his
employment.13 the court also found that there was nothing in
the workers’ compensation statute that required the employee
to take the most direct route between the doctor’s office and his
place of employment, but only that the route selected be rea-
sonable and practical, and one that would not materially delay
the employee’s return to work.14
[4] the Nebraska Workers’ Compensation Act, like the statu-
tory scheme in Taylor, provides that if an employee fails to
avail himself or herself of medical or surgical treatment, he or
she can lose those benefits.15 We have also allowed compensa-
tion for travel to and from necessary medical services in the
past.16 We find that an employee’s injury which occurs en route
to a required medical appointment that is related to a compen-
sable injury is also compensable, as long as the chosen route is
reasonable and practical.
Having determined that an injury sustained on the way to
a doctor’s appointment is compensable, we apply the rule in
Kraus1 and Jacobs v. Consolidated Tel. Co.1 under our dual
purpose rule, an injury arising out of a trip with both a busi-
ness and a personal purpose is compensable if the trip was
12 Id.
13 Id.
14 Id.
15 Neb. Rev. Stat. § 4-120(2)(c) (Cum. Supp. 2006). See, also, Yarns v. Leon
Plastics, Inc., 23 Neb. 132, 464 N.W.2d 01 (1991).
16 Behrens v. American Stores Packing Co., 22 Neb. 1, 421 N.W.2d 12
(19); Pavel v. Hughes Brothers, Inc., 16 Neb. 2, 94 N.W.2d 492
(1959).
1 Kraus, supra note 4.
1 Jacobs, supra note 4.
StRAub v. CIty of SCottSbluff 	169
Cite as 20 Neb. 163

occasioned by a business purpose. We find that an employee
who is injured while en route to a medical appointment for
a covered injury is acting within the course and scope of his
or her employment, as long as the route taken is reasonable
and practical.19 Much like in Kraus, Straub had completed his
personal errand of dropping off his children at the babysitter’s
house and was continuing on the business errand of attending
his medical appointment.
We therefore find appellants’ first assignment of error to be
without merit.
tRiAl C ouRt WAs not C leARly WRong in
deteRmining tHAt stRAub HAd 35-peRCent
loss of eARning CApACity
[5,6] Appellants next argue that Straub did not present suf-
ficient evidence that he sustained a 35-percent loss of earning
capacity. We note first that upon appellate review, the findings
of fact made by the trial judge of the compensation court have
the effect of a jury verdict and will not be disturbed unless
clearly wrong.20 In testing the sufficiency of the evidence to
support the findings of fact by the Workers’ Compensation
Court, the evidence must be considered in the light most favor-
able to the successful party, every controverted fact must be
resolved in favor of the successful party, and the successful
party will have the benefit of every inference that is reasonably
deducible from the evidence.21
the basis for the trial court’s decision that Straub had
a 35-percent loss of earning power was the report of the
court-appointed vocational case manager. under Neb. Rev.
Stat. § 4-162.01(3) (Cum. Supp. 200), a court-appointed
vocational case manager’s opinion is entitled to a rebuttable
presumption of correctness. the trial court also considered a
rebuttal report.
19 See, Behrens, supra note 16; Pavel, supra note 16.
20 Bishop v. Speciality Fabricating Co., 2 Neb. 11, 60 N.W.2d 352
(2009).
21 Id.
10 	20 NEbRASKA REPoRtS

the court-appointed vocational case manager’s report stated
that Straub was limited to “‘light’” physical activity, which
represented a loss of earning capacity. that report estimated
Straub’s loss of earning power at 46 percent, including his
shoulder injuries. the rebuttal report listed Straub’s loss of
earning capacity as somewhere between 0 and 15 percent, and
placed him in the “Medium” range of physical capabilities.
the trial court determined that the court-appointed voca-
tional case manager’s report was rebutted in part, specifically
as to the shoulder injuries and overhead reaching. the trial
court concluded that considering the orthopedist’s reports and
the reports of the vocational counselors, Straub suffered a 35-
percent loss of earning capacity. Appellants essentially argue
that the court-appointed vocational case manager’s report was
not competent, and they argue that the trial court should not
have given that report the weight that it did.
We note, however, that both the rebuttal report and the court-
appointed vocational case manager’s report state that Straub
has some restrictions due to his injuries. the trial court in its
order recognized both reports and the differences between them
and stated that it had considered both reports when making its
decision. thus, we cannot say that the trial court’s decision was
clearly wrong.
In conjunction with its assertion that the court-appointed
vocational case manager’s report was not credible, appellants
also argue that Straub has not sufficiently demonstrated a loss
of earning capacity, because Straub continues to work for the
Scottsbluff Police Department and because his wages have
increased. Appellants also argue that because Straub is a statu-
tory civil service employee, he cannot suffer a loss of earn-
ing capacity.
[] In Davis v. Goodyear Tire & Rubber Co.,22 however,
we stated:
Earning power, as used in Neb. Rev. Stat. § 4-121(2),
is not synonymous with wages, but includes eligibility
to procure employment generally, ability to hold a job
22 Davis v. Goodyear Tire & Rubber Co., 269 Neb. 63, 6, 696 N.W.2d
142, 14 (2005).
StRAub v. CIty of SCottSbluff 	11
Cite as 20 Neb. 163

obtained, and capacity to perform the tasks of the work,
as well as the ability of the worker to earn wages in the
employment in which he or she is engaged or for which
he or she is fitted.
We continued:
thus, the mere fact that after an injury, the employee
receives, or is offered, his or her former wages, or a larger
sum, does not necessarily preclude recovery of compen-
sation under the workers’ compensation statutes. . . . the
fact that an employee is still employed and still paid the
same or better does not, of itself, mean he or she has not
experienced some loss of earning capacity.23
We find appellants’ second assignment of error to be with-
out merit.
dvd sHoWed evidenCe of inJuRy to stRAub
finally, appellants claim the DVD, found at exhibit 2, does
not show that Straub’s hip had been injured. As noted, we
review the decision of the trial court for clear error and its find-
ings will not be otherwise overturned.24
the DVD shows a vehicle sideswipe Straub as he was
conducting a routine traffic stop. the vehicle knocked Straub
into the stopped vehicle, and then Straub limped away. the
DVD later shows Straub stopping the vehicle that hit him,
while Straub continued to limp. Appellants argue that Straub
is not a credible witness because he told his orthopedist that
he had been knocked down but the DVD did not support
that claim.
first, we note that our review of the record contains no such
statement by Straub. Straub testified that he was struck by a
passing vehicle, and the notes from his chiropractor indicate
that Straub reported being struck by a vehicle. In its order,
the trial court stated that it found Straub’s testimony cred-
ible and noted that Straub had been injured in the course of
his employment in the past but had never made any workers’
23 Id. at 6-9, 696 N.W.2d at 14.
24 Bishop, supra note 20.
12 	20 NEbRASKA REPoRtS

compensation claims. the trial court also viewed the DVD.
based on the record before us, we find that the trial court did
not clearly err in determining that Straub had injured his hip
during the first accident. Appellants’ third assignment of error
is without merit.
CoNCluSIoN
We find Straub’s second accident, which occurred while
en route to a required medical appointment for compensable
injuries, was also compensable. We also find the trial court
did not commit clear error when determining that Straub sus-
tained a 35-percent loss of earning capacity or when finding
that the DVD, found at exhibit 2, showed that Straub’s left hip
was injured.
A ffiRmed.
EIKMEIER v. CIty of oMAHA 	13
Cite as 20 Neb. 13
donAld b. eikmeieR, AppellAnt, v. tHe C ity of
omAHA, nebRAskA, A muniCipAl CoRpoRAtion,
et Al ., Appellees.
CHeRyl eCkeRmAn, AppellAnt, v. tHe C ity of
omAHA, nebRAskA, A muniCipAl CoRpoRAtion,
et Al ., Appellees.
3 N.W.2d 95
filed July 2, 2010. 	Nos. S-09-113, S-09-114.
1. Statutes: Appeal and Error. the determination of the applicability of a statute
is a question of law, and when considering a question of law, the appellate court
makes a determination independent of the trial court.
2. Attorney Fees: Appeal and Error. A party may recover attorney fees and
expenses in a civil action only when a statute permits recovery or when the
Nebraska Supreme Court has recognized and accepted a uniform course of pro-
cedure for allowing attorney fees.
3. Employer and Employee: Employment Contracts: Wages. A payment will be
considered a wage subject to the Nebraska Wage Payment and Collection Act if
(1) it is compensation for labor or services, (2) it was previously agreed to, and
(3) all the conditions stipulated have been met.
Appeals from the District Court for Douglas County: geRAld
e. moRAn, Judge. Affirmed.