Observations of the legal scene from the Cornhusker State, home of Roscoe Pound and Justice Clarence Thomas' in-laws, and beyond.
Tuesday, August 09, 2005
WC Court on remand for WC Court rule 11 error was free to increase disability awardMeredith v. Schwarck Quarries, 13 Neb. App. 765 Filed August 9, 2005. No. A-03-1136.
Worker comp case went back to trial court when appeals court found trial judge's decision did not comply with WCCrule 11 (reasoned decisions). On remand the court increased permanent disability from 44% to perm total disability. Although the review panel found the trial court exceeded its authority on remand when it changed its findings on perm. disability the appeals court disagrees and reinstates the trial court ruling for perm total disability: "When a cause is remanded with specific directions, the court to which the mandate is directed has no power to do anything but to obey the mandate. The order of the appellate court is conclusive on the parties, and no judgment or order different from, or in addition to, that directed by the appellate court can be entered by the trial court. However the remand to the trial court in this case was not an instruction to enter a final judgment. Rather, our remand included instructions for the trial court to “enter an order which complies with the requirements of rule 11 (reasoned decisions), based on the whole record available to the court when the first award was entered.”Where a workers’ compensation award is reversed on the basis that the award fails to comply with Workers’ Comp. Ct. R. of Proc. 11 (2002), the order is effectively rendered a nullity. On a subsequent appeal, the issue is not whether the order on remand is inconsistent with the original award, but, rather, whether it is supported by the evidence under the applicable standard of review. "The trial court entered an order which, if the evidence supports the findings in that order and the order sets forth a reasoned decision, complies with rule 11. Our order did not prevent the trial court from modifying its prior order if the court determined that the evidence as it already existed on the record supported a different determination of disability."
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