The Nebraska Supreme Court and the Theory of "legislative Acquiescence," Erosion of the Legislative Function of the Nebraska Unicameral in Light of the Recent Nebraska Supreme Court's Decision in Lenz v. Central Parking

• Publication year: 2022

48 Creighton L. Rev. 289. THE NEBRASKA SUPREME COURT AND THE THEORY OF "LEGISLATIVE ACQUIESCENCE," EROSION OF THE LEGISLATIVE FUNCTION OF THE NEBRASKA UNICAMERAL IN LIGHT OF THE RECENT NEBRASKA SUPREME COURT'S DECISION IN LENZ V. CENTRAL PARKING

THE NEBRASKA SUPREME COURT AND THE THEORY OF "LEGISLATIVE ACQUIESCENCE," EROSION OF THE LEGISLATIVE FUNCTION OF THE NEBRASKA UNICAMERAL IN LIGHT OF THE RECENT NEBRASKA SUPREME COURT'S DECISION IN LENZ V. CENTRAL PARKING

TIERNAN T. SIEMS(fn*)

I. INTRODUCTION

Result oriented decisions, whatever their motivation, erode principles of separation of powers, stare decisis, and judicial credibility.(fn1) In interpreting the Nebraska Workers' Compensation Act(fn2) (the "Act"), the Nebraska Supreme Court has recently demonstrated a pattern of reaching decisions based upon a desired outcome rather than upon sound judicial principles.(fn3) Because less and less regard for the established rule of law has been shown in some of the court's most recent decisions, stare decisis has been replaced with random uncertainty.(fn4) At the same time, the Nebraska Unicameral's legislative authority has been appropriated, using a novel idea that elected State Senators can cede such constitutionally provided power through passive inactivity, or "acquiescence," as the Nebraska Supreme Court has labeled it.(fn5)

The conditions triggering the application of "legislative acquiescence" have not been fully articulated by the Nebraska Supreme Court.(fn6) As such, this anomaly could arguably be used by the Nebraska Supreme Court with unchecked abandon, relegating the function of the legislative branch of the Nebraska State government to little more than an advisory body with ever dwindling relevance.

Examples of shifts in legislative power from the Unicameral to the Judiciary are not new; however, the recent case of Lenz v. Central Parking System of Nebraska Inc.(fn7) offers perhaps the most obvious and recent example of this change.(fn8) At the same time, this particular decision has created an irreconcilable conflict with the doctrine of stare decisis and the principle of separation of powers.(fn9)

This Note will first detail the facts and proceedings leading up to the appeal before and the decision by the Nebraska Supreme Court in the recent case of Lenz v. Central Parking.(fn10) Then, in examining the context of how the Nebraska Supreme Court has created conflict and judicial uncertainty, this Note will examine the philosophy of the Nebraska Workers' Compensation Act, including its purpose, intended construction, and limits of its application.(fn11) This Note will also detail prior decisions from Nebraska courts that have analyzed and interpreted the Act, sometimes in keeping with prior decisions and the plain text of the Act and sometimes not.(fn12) Next, this Note will summarize a history of judicial construction of statutes giving rise to the concept of "legislative acquiescence."(fn13) Additionally, this Note will conclude that instances of judicial legislation, coupled with the use of legislative acquiescence has impermissibly redirected legislative authority from the Nebraska Unicameral to the Nebraska Supreme Court.(fn14) Finally, this Note will suggest several possible solutions to the current confusion, from the simplest remedy to the more drastic.(fn15)

II. FACTS AND HOLDING

The plaintiff in Lenz v. Central Parking System of Nebraska Inc.(fn16) was a parking lot attendant who occasionally worked outdoors at a parking garage in Omaha, Nebraska.(fn17) In December 2008, the plaintiff suffered a frostbite injury to his right foot while performing his work duties for Central Parking of Nebraska.(fn18) As a result, his claim for workers' compensation benefits was accepted by his employer and its insurance carrier, who initially paid certain medical and indemnity benefits.(fn19)

Among the benefits paid to Lenz was payment for medical treatment up until mid-2009.(fn20) Lenz also received indemnity payments, albeit at a rate lower than was actually owed.(fn21) On the other hand, Mr. Lenz was not initially paid any permanency benefits or mileage reimbursement in connection with his injury.(fn22) As such, the evidence indicated that although the claim had been accepted, Mr. Lenz had not been paid all of the benefits under the Nebraska Workers' Compensation Act(fn23) that he could have collected.(fn24)

Besides being underpaid as to mileage and indemnity payments, Mr. Lenz's medical treatment was not paid by the defendants from approximately April 2009 forward.(fn25) It was during this same time period that Lenz moved from Nebraska to Colorado, where he sought additional treatment in light of the ongoing nature of his foot injury.(fn26) Specifically, Mr. Lenz's right foot had "frequent and near continuous episodes of recurrence of the ulcers."(fn27) Due to complications from these ongoing problems, Mr. Lenz eventually underwent a "partial amputation of the fifth metatarsal."(fn28)

After April 2009, Mr. Lenz unilaterally submitted some of the bills for right foot care to an indigent care program in Colorado.(fn29) Mr. Lenz testified that he knew the bills that were being incurred were the result of his compensable claim.(fn30) He also testified that he knew he could have filed his petition for benefits earlier than he did.(fn31) Still, it was not until he underwent the partial amputation of his fifth metatarsal on October 31, 2012, that he demanded payment for the remaining outstanding medical bills and additional indemnity benefits.(fn32)

Among the indemnity demanded by Lenz was reimbursement for mileage expenses, temporary total disability from the date of the accident forward, and permanent partial disability benefits from May 2009 forward.(fn33) This latter category of benefits was based upon a twenty percent impairment rating given by Mr. Lenz's surgeon who performed the partial amputation.(fn34) When his former employer's insurance carrier denied Mr. Lenz's claim on the basis of the statute of limitations found in section 48-137 of the Nebraska Revised Statutes,(fn35) he filed suit in January of 2013.(fn36) Before trial, the parties stipulated that more than two years had passed since the last payment of "compensation" within the meaning of the Nebraska Workers' Compensation Act.(fn37)

Issues before the trial court included whether Lenz's claim was barred by the statute of limitations found in section 48-137 and, if not, what benefits the plaintiff might be entitled to under the Act.(fn38) Lenz claimed, pursuant to an exception to the statute of limitations found in White v. Sears,(fn39) that his petition was timely, having been filed within two years of the alleged worsening of his condition.(fn40) Lenz, therefore, claimed entitlement to all benefits requested within his petition.(fn41)

In answer to the petition filed by Lenz, the defendants asserted that pursuant to Bassinger v. Nebraska Heart Hospital,(fn42) the statute of limitations exception in White was unenforceable, particularly considering that the Bassinger court had held that judicial legislation was not appropriate under the Nebraska Workers' Compensation Act.(fn43) Additionally, defendants alleged that even if the White exception to section 48-137 was enforceable, Lenz had failed to meet the test specified in White.(fn44) Finally, the defendants suggested that Lenz never reached a point where his condition plateaued such that he could prove a "substantial material worsening."(fn45)

Trial on the plaintiff's petition was held before Judge Thomas Stine of the Nebraska Workers' Compensation Court. Judge Stein generally rejected the arguments raised by defendants that the exception to section 48-137 was unenforceable.(fn46) In this regard, the trial court noted:

There is no doubt as to the right of an injured worker to receive compensation for an increase in disability that occurs following a compensable injury. Where there has been a proceeding before the compensation court and there has been an award, the procedure is set out in § 48-141. Where there is no dispute about the compensable nature of the injury which the worker sustained, and the employer has voluntarily paid compensation to the injured worker, the right to receive additional compensation in the event of a material increase in disability resulting from the injury is still available.(fn47)

As to defendants' argument regarding the application of the recent Bassinger decision, however, the trial court stated "[w]hile the Court is flattered that defendants believe the Court can unilaterally overturn the Nebraska Supreme Court's decision in White, the Court respectively [sic] declines to engage in such an act of megalomania."(fn48) The trial court then concluded that the plaintiff had sustained a substantial worsening in his condition, thus entitling him to additional benefits.(fn49) At the same time, the trial court found that "any claim for benefits prior to October 28, 2012, is barred by § 48-137."(fn50)

Central Parking appealed the trial court's award in Lenz, assigning error in the trial court's finding that the exception to the section 48-137 statute of limitations was valid, even after Bassinger.(fn51) Central Parking also assigned as error the trial court's finding that the test for the exception to the statute of limitations was satisfied based upon the facts of the case, particularly considering that Mr. Lenz had reason to bring...