Gardner v. International Paper Destr. & Recycl. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
Bryant Gardner, appellee, v. International Paper
Destruction & R ecycling, appellant.
___ N.W.2d ___
Filed July 17, 2015. No. S-14-815.
1. Workers’ Compensation: Appeal and Error. 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.
2. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
3. ____: ____. In workers’ compensation cases, an appellate court deter-
mines questions of law.
4. Workers’ Compensation. The Nebraska Workers’ Compensation Act
provides that when an employee suffers personal injury caused by acci-
dent or occupational disease, arising out of and in the course of his or
her employment, such employee shall receive compensation from his or
her employer if the employee was not willfully negligent at the time of
receiving such injury.
5. Workers’ Compensation: Proof. In a proceeding to modify a prior
award, the employer has the burden of establishing a decrease of inca-
pacity and the employee has the burden of establishing an increase.
6. Workers’ Compensation: Words and Phrases. Under Neb. Rev. Stat.
§ 48-121 (Reissue 2010), a workers’ compensation claimant may receive
permanent or temporary workers’ compensation benefits for either par-
tial or total disability. “Temporary” and “permanent” refer to the dura-
tion of disability, while “total” and “partial” refer to the degree or extent
of the diminished employability or loss of earning capacity.
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
7. Workers’ Compensation. Compensation for temporary disability
ceases as soon as the extent of the claimant’s permanent disability is
ascertained.
8. ____. Temporary disability benefits should be paid only to the time
when it becomes apparent that the employee will get no better or no
worse because of the injury.
9. ____. When an injured employee has reached maximum medi-
cal improvement, any remaining disability is, as a matter of law,
permanent.
10. ____. Temporary disability benefits are discontinued at the point of
maximum medical improvement, because a disability cannot be both
temporary and permanent at the same time.
11. Actions: Appeal and Error. The law-of-the-case doctrine reflects the
principle that an issue litigated and decided in one stage of a case
should not be relitigated at a later stage.
12. Workers’ Compensation: Expert Witnesses: Physicians and
Surgeons. The Workers’ Compensation Court is the sole judge of the
credibility and weight to be given medical evidence, even when the
health care professionals do not give live testimony.
13. Workers’ Compensation. Causation of an injury or disability presents
an issue of fact.
14. ____. Whether a plaintiff in a workers’ compensation case is totally and
permanently disabled is a question of fact.
15. Judgments: Appeal and Error. In testing the sufficiency of the evi-
dence to support the findings of fact, an appellate court considers the
evidence in the light most favorable to the successful party, every con-
troverted fact must be resolved in favor of the successful party, and the
appellate court gives the successful party the benefit of every inference
reasonably deducible from the evidence.
16. Workers’ Compensation: Proof. A claimant is entitled to an award
under the Nebraska Workers’ Compensation Act for a work-related
injury and disability if the claimant shows, by a preponderance of the
evidence, that the claimant sustained an injury and disability proxi-
mately caused by an accident which arose out of and in the course of
the claimant’s employment, even though a preexisting disability or con-
dition has combined with the present work-related injury to produce the
disability for which the claimant seeks an award.
17. Workers’ Compensation. A workers’ compensation claimant can
recover benefits when an injury, arising out of and in the course
of employment, combines with a preexisting condition to produce
a disability.
18. Workers’ Compensation: Words and Phrases. Total disability does
not mean a state of absolute helplessness. It means that because of an
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Nebraska A dvance Sheets
291 Nebraska R eports
GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
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 from the Workers’ Compensation Court: James R.
Coe, Judge. Affirmed.
Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit &
Witt, L.L.P., for appellant.
Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch
Law, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Bryant Gardner, the appellee, suffered an accident aris-
ing out of and in the course of his employment on April 16,
2009, while he was employed by the appellant, International
Paper Destruction & Recycling (the employer). The Nebraska
Workers’ Compensation Court filed an “Award” on September
23, 2010, awarding temporary benefits to Gardner. The
employer filed a petition to modify the award on May 6,
2013, alleging that Gardner had reached maximum medical
improvement and had experienced a decrease in incapacity.
In an order filed May 24, the compensation court found that
Gardner had reached maximum medical improvement. After
a trial on the employer’s petition to modify, the compensation
court filed a “Further Award” on August 8, 2014, in which the
court applied the odd-lot doctrine and determined that, given
Gardner’s preexisting mental and cognitive deficits, and based
upon his physical injuries that arose from the accident, Gardner
was permanently and totally disabled. The employer appeals.
We affirm.
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Nebraska A dvance Sheets
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
STATEMENT OF FACTS
On April 16, 2009, while employed by the employer as a
truckdriver, Gardner was operating a semitrailer truck when he
was involved in an accident in Omaha, Nebraska. Due to the
accident, Gardner was briefly rendered unconscious and suf-
fered injuries to his head, neck, and lower back. Gardner filed
a petition in the Workers’ Compensation Court on August 27,
seeking compensation for his injuries. The employer filed its
answer on September 3, generally denying the allegations set
forth in Gardner’s petition and raising an affirmative defense of
willful negligence.
After a trial was held on June 14, 2010, the compensation
court filed its “Award” on September 23. The court stated that
on April 16, 2009, Gardner was operating a semitrailer truck
and that as he was exiting eastbound L Street to merge onto
northbound Interstate 680, he failed to negotiate the circular
entrance ramp and the semitrailer truck rolled. The court found
that Gardner sustained a “‘closed head injury’” in the acci-
dent of April 16 and that Gardner was unconscious for a brief
period of time after the accident.
Gardner saw Dr. Kip Burkman on April 23, 2009. Dr.
Burkman noted that Gardner’s symptoms included headache,
depression, anxiety, blurred vision, dizziness, neck pain, numb-
ness and tingling, confusion, poor balance, and memory loss.
The compensation court determined that Gardner’s medical
history showed that prior to the accident, Gardner had expe-
rienced all of the symptoms that Dr. Burkman listed in his
report of April 23. The court further determined, based on
medical reports, a CT scan of Gardner’s head, and an MRI
of Gardner’s brain, that Gardner did not suffer any physical
injury to his brain.
Gardner was seen by a neurologist, Dr. Scott Diesing. In
a report dated November 5, 2009, Dr. Diesing noted that
an MRI of Gardner’s brain on May 6 was normal and that
Gardner’s neurological examination demonstrated a short-
term recall impairment and mild deficits on a short test of
mental status. Dr. Diesing noted that Gardner’s complaints
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
were mostly consistent with the musculoskeletal injury as
previously diagnosed. Gardner underwent an MRI examina-
tion of the cervical spine and the lumbar spine that showed
a disk protrusion at the C4-5 and C5-6 levels and, addition-
ally, a slight bulge of the lumbar spine at the S1-L5 level. Dr.
Diesing recommended continued symptomatic care.
Gardner continued to complain of neck and back pain, and
on November 12, 2009, Dr. Burkman referred him to another
physician for a cervical epidural injection, which was per-
formed on November 30. In a report of January 11, 2010, Dr.
Diesing noted that Gardner’s problems with headaches, nausea,
balance, cognitive deficits, and neck pain were improving until
the epidural injection on November 30, 2009.
On February 11, 2010, Gardner underwent an MRI exami-
nation which, according to Dr. Diesing’s report dated April
16, showed that Gardner had a cerebrospinal fluid leak (CSF).
The CSF was caused by a leak in the spinal cord’s protec-
tive sac in which spinal fluid leaked out of a hole in the
dura. Gardner underwent a “blood patch” to correct the CSF,
as prescribed by Drs. Burkman and Diesing, and Gardner’s
symptoms improved thereafter. In its award, the compensation
court determined that “the evidence preponderates in a finding
that the cause of the CSF was due to the epidural injection on
November 30, 2009.”
Because of Gardner’s complaints of cervical and low-back
pain, he was referred to Dr. George Greene, a neurosurgeon,
and Dr. Eric Phillips, an orthopedic surgeon. In a report dated
May 21, 2009, Dr. Phillips stated that Gardner was not a surgi-
cal candidate and suggested Gardner continue pain manage-
ment with Dr. Burkman. In an October 8 report, Dr. Greene
likewise did not believe that Gardner was a surgical candidate
for neck or back pain.
With respect to Gardner’s cognitive injury, Gardner was
examined by Dr. Jeffery Snell, a neuropsychologist; Dr. Ty
Callahan, a psychologist; Dr. Jennifer Linder, a psycholo-
gist; Dr. John Donaldson, a psychiatrist; and Dr. Ian Crabb, a
neurologist. In a report dated November 10, 2009, Dr. Linder
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
stated that Gardner had global impairment in memory and
severe cognitive deficits related to memory impairment and
was incapable of managing finances and daily tasks.
In a report dated January 27, 2010, Dr. Callahan stated that
Gardner suffered from depression and major anxiety disorder
and that his emotional state leads to magnification of symp-
toms sufficient to interfere with his recovery. Dr. Callahan
noted that Gardner had suffered a concussion as a result of
the April 16, 2009, accident, but that he did not believe any
of Gardner’s current symptoms were related to any injury
to his brain. Dr. Callahan stated that Gardner had reached
maximum medical improvement with respect to his cognitive
defects within 2 to 3 weeks, or at the most 2 months, after the
accident. Dr. Callahan noted Gardner’s prior symptoms and
stated that he had evidence of malingering based on Gardner’s
test results. Dr. Callahan stated he believed that the cause of
Gardner’s cognitive deficits, to the extent they existed, was due
to Gardner’s previously existing narcotic drug use, marijuana
use, and sleep apnea.
Dr. Snell also examined Gardner. In his report and deposi-
tion, Dr. Snell stated that based on a CT scan and the “Glasgow
coma score,” he would not expect any cognitive impairments.
Dr. Snell performed various tests on Gardner and suggested
that based on Gardner’s low test scores, Gardner was not put-
ting forth his full effort on the tests.
Dr. Donaldson examined Gardner, and in a report dated July
2, 2009, Dr. Donaldson stated that there was no objective evi-
dence of physical damage to Gardner’s brain. Dr. Donaldson
noted that Gardner had some memory loss, and Dr. Donaldson
was concerned the cause of the memory loss was Gardner’s
medications and his sleep apnea. In a July 8 report, Dr.
Donaldson stated that Gardner’s symptoms were more typical
of a concussion because, based on the MRI, there was no sign
of brain laceration or significant hemorrhage.
In a report dated October 13, 2009, Dr. Crabb stated that
several CT scans showed no traumatic brain injury. Dr. Crabb
determined that Gardner had suffered a strained cervical spine
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
and a low-back strain, that no surgery was indicated, and that
Gardner was at maximum medical improvement with no per-
manent impairment or restrictions. The compensation court’s
original award mentioned that Dr. Crabb stated that the epi-
dural injection on November 30 was more likely than not the
cause of the CSF.
In a report dated June 1, 2010, Dr. Burkman stated that from
a brain injury standpoint, Gardner was at maximum medical
improvement, but he was still doing active physical therapy,
and that therefore, Gardner was not at maximum medical
improvement from a physical therapy standpoint.
Based on the evidence, the compensation court set forth its
findings in its September 23, 2010, award and stated that
the evidence preponderates in a finding that [Gardner]
was injured in the course and scope of his employment
on April 16, 2009, when he was involved in a motor vehi-
cle accident. The evidence preponderates in a finding that
[Gardner] suffered a concussion in that accident and as a
result had some temporary cognitive deficits that resolved
and resulted in no permanent impairment from a cogni-
tive and depression standpoint as a result of the accident
and injury of April 16, 2009. The evidence preponderates
in a finding that [Gardner’s] preexisting conditions were
the same from a cognitive standpoint prior to the acci-
dent as subsequent to the accident and the exacerbation
of the symptoms from the accident of April 16, 2009,
was a temporary condition. The evidence preponderates
in a finding that the cause of the cognitive deficits was
due to the preexisting depression and anxiety from which
[Gardner] suffered, the sleep apnea from which [Gardner]
suffered and the narcotic and other medications [Gardner]
was prescribed prior to the accident.
The Court finds that the evidence preponderates in a
finding that [Gardner] sustained an injury to the cervi-
cal and lumbar spine and that as a result [Gardner] is
still undergoing physical therapy rehabilitation and is
not at maximum medical improvement from the injuries
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Nebraska A dvance Sheets
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
to the cervical and lumbar spine. [Gardner] is at maxi-
mum medical improvement regarding any concussion
or cognitive aggravation he sustained as a result of the
accident of April 16, 2009.
The Court finds that [Gardner] is not at maximum
medical improvement, likewise, due to the continuing
treatment for the CSF as stated by Dr. Diesing in his
report of May 26, 2010.
The compensation court then rejected the employer’s affirma-
tive defense of willful negligence.
The compensation court noted the parties stipulated that
Gardner’s average weekly wage for purposes of temporary
total disability was $605.51 per week and that Gardner’s aver-
age weekly wage for purposes of permanent impairment was
$641.60 per week. The court ordered:
The [employer] shall pay to and on behalf of [Gardner]
benefits of $403.67 per week from and including April
16, 2009, to and including July 6, 2009, and thereafter
and in addition thereto benefits of $282.57 for a 70 per-
cent temporary partial loss of earning capacity from and
including July 7, 2009, to and including November 30,
2009, and thereafter and in addition thereto the sum of
$403.67 per week from and including December 1, 2009,
to and including the date of this hearing on June 14, 2010,
and a like amount each week for so long as [Gardner]
remains temporarily totally disabled.
The court further ordered that the employer pay certain out-
standing medical expenses, that the employer is entitled to a
credit for previous payment of medical expenses and indem-
nity benefits, and that the employer pay certain future medi-
cal expenses.
On October 7, 2010, the employer filed an “Application
for Review” of the award with the review panel, claiming
17 errors made by the compensation court. Gardner did not
appeal or cross-appeal the award. On November 10, 2011, the
review panel filed its order in which it affirmed the award of
the compensation court. The review panel stated that “there is
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
ample evidence in the record to support the Court’s findings,”
and it determined that the employer’s assigned errors were
without merit.
On January 26, 2012, Dr. Phillips performed an MRI exami-
nation on Gardner’s spine and he compared that MRI to the
original MRI of May 6, 2009. Based on the January 2012 MRI,
Dr. Phillips recommended surgery. On July 27, Gardner under-
went surgery performed by Dr. Phillips for an anterior cervical
diskectomy and a three-level fusion from the C-4 level to the
C-7 level.
On May 6, 2013, the employer filed its petition to modify
the award, alleging that Gardner had reached maximum medi-
cal improvement and had experienced a decrease in incapac-
ity. In his answer filed May 21, Gardner generally denied
the employer’s petition to modify. Gardner stated that he had
not reached maximum medical improvement, had not experi-
enced a decrease in incapacity, “and may have experienced an
increase in incapacity due solely to his original injury.”
On May 13, 2013, the employer filed a motion to compel
requesting the court to order Gardner to appear for a func-
tional capacity evaluation at the location recommended by
Dr. Phillips. On May 24, the compensation court filed an
order recognizing that there was a dispute between the parties
regarding who should provide a functional capacity evaluation
to Gardner “now that [Gardner] has reached maximum medical
improvement.” The court ordered that Gardner should receive
the functional capacity evaluation pursuant to Dr. Phillips’
recommendation.
Gardner completed a functional capacity evaluation on
July 15, 2013. The functional capacity evaluation found that
Gardner could work at a “medium physical demand” level
with lifting restrictions of 30 pounds shoulder level, 25 pounds
overhead, and a two-hand carry of 40 pounds.
On September 11, 2013, Dr. Phillips responded to a letter
from the employer’s counsel in which Dr. Phillips stated that
Gardner had reached maximum medical improvement with
regard to his work-related injury.
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
On September 25, 2013, the compensation court filed an
order appointing vocational rehabilitation counselor, Patricia
Reilly, to perform an evaluation for vocation rehabilitation
services for Gardner in addition to performing a loss of earn-
ing capacity evaluation. On October 18, the employer filed
a motion in limine to exclude an October 10 report of Dr.
Jay Rich, a psychiatrist, from being considered in Gardner’s
loss of earning capacity evaluation. In the October 10 report,
Dr. Rich was asked, “Do you believe the truck accident was
a (not the one and only) proximate cause of . . . Gardner’s
depression and post-traumatic stress disorder?” (Emphasis
in original.) Dr. Rich answered, “[Gardner] had no history
of depression or post traumatic stress prior to the accident.”
In its motion in limine, the employer argued that because
the compensation court had determined in its initial award
that Gardner had reached maximum medical improvement
with respect to his mental health, any ongoing problems are
related to his preexisting condition and not related to the com-
pensable injury. The employer thus argued Dr. Rich’s report
should not be considered in Gardner’s loss of earning capac-
ity evaluation.
In an order filed October 31, 2013, the compensation court
granted Gardner leave to provide a further report from Dr. Rich
to the vocational rehabilitation counselor, Reilly, “concerning
any further opinions that Dr. Rich may have upon [Gardner’s]
mental condition and/or restrictions, if any.” The court also
granted leave to the employer to take further discovery depo-
sitions and to rebut the opinion of Dr. Rich with an updated
report of the psychiatrist of the employer’s choice. The order
also stated the parties stipulated that the employer
shall pay to [Gardner] indemnity at the rate of a 45
percent loss of earning capacity to the time of final
­
resolution and that the finding of the 45 percent loss
of earning capacity shall be considered an agreement
by the parties with approval by the Nebraska Workers’
Compensation Court.
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Nebraska A dvance Sheets
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
Dr. Rich treated Gardner four times between August 29 and
October 30, 2013. In his August 29 report, Dr. Rich stated that
Gardner was depressed and suffered from posttraumatic stress
disorder and he noted that Gardner had “no psychiatric treat-
ment history.” In a December 16 report addressed to Gardner’s
attorney, Dr. Rich stated that “Gardner’s pre-existing cognitive
defects and depression were aggravated by the rollover.” He
further stated that he believed Gardner’s “defects are perma-
nent” and that “Gardner’s current symptoms restrict him from
return[ing] to work at this time.”
In a “Clarification Report” dated February 13, 2014, Dr.
Rich stated that (1) Gardner suffered preexisting mental and
cognitive deficits, including depression, anxiety, sleep apnea,
and effects of narcotics and other medications; (2) the April
16, 2009, accident caused only a temporary exacerbation of
the cognitive preexisting conditions; (3) following the tem-
porary exacerbation, Gardner’s cognitive state returned to the
preexisting conditions he was suffering prior to the accident;
(4) the preexisting cognitive conditions, along with the pain
caused by the accident, limited Gardner’s ability to return to
full-time work; (5) Gardner’s preexisting cognitive conditions
were dynamic and naturally progressive mental states that were
left untreated and that they “naturally progressed and expect-
edly intensified”; and (6) Gardner’s preexisting cognitive con-
ditions were permanent and “were naturally progressing due
to . . . Gardner’s lack of treatment — not due to the April 16,
2009 rollover.”
In Reilly’s first loss of earning capacity analysis dated
October 3, 2013, Reilly determined that Gardner sustained
a loss of earning power of approximately 45 percent. The
scope of Reilly’s first analysis included only Gardner’s physi-
cal restrictions; it did not include his preexisting cogni-
tive deficits.
In Reilly’s addendum to the loss of earning power analysis
dated January 10, 2014, Reilly considered Gardner’s preexist-
ing cognitive deficits by relying upon the reports of Dr. Rich.
Reilly stated that “[w]ith consideration given to the opinions
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.
Cite as 291 Neb. 415
of Dr. Jay Rich . . . Gardner would be considered to fit the
definition of ‘odd-lot doctrine’ and therefore would not be able
to maintain regular full-time employment and would be con-
sidered permanently and totally disabled.”
In Reilly’s second addendum to the loss of earning power
analysis dated April 25, 2014, Reilly provided two alternative
loss of earning capacity opinions that were based on two hypo-
thetical scenarios presented by the parties’ attorneys. Based
on the scenario set forth by the employer, which posited that
Gardner had no neurocognitive or psychological impairment,
Reilly determined that “Gardner would not sustain a loss of
earning power as a result of the rollover accident.” In contrast,
based on the scenario set forth by Gardner, which posited
that Gardner had preexisting cognitive and mental conditions
that were progressing due to lack of treatment, Reilly deter-
mined that because of the combined effect of the preexisting
cognitive issues along with the orthopedic injury, “Gardner
would be considered to fit the definition of ‘odd-lot doctrine’
and therefore would not be able to maintain regular full-
time employment and would be considered permanently and
totally disabled.”
On April 28, 2014, a trial was held on the employer’s peti-
tion to modify. At the trial, the employer objected to, inter alia,
Gardner’s offer of the report of Dr. Rich, described above, and
a separate report of Dr. Jan Golnick. In a report dated March
25, 2013, Dr. Golnick stated that Gardner suffered chronic
headaches following the April 16, 2009, accident and that
since the accident, Gardner has experienced dizziness, cogni-
tive and memory problems, and regular episodes of confusion.
Dr. Golnick reported that Gardner had experienced depres-
sion and moderate to severe anxiety. The only past medical
history reported by Dr. Golnick was as follows: sinus and
nasal surgery in 2005; anterior cervical fusion, C4-C7 level,
by Dr. Phillips on July 12, 2012; hypertension; and sleep
apnea. Dr. Golnick stated he would like to schedule a followup
appointment with Gardner due to the complexity of his case
and “due to the fact that I [Dr. Golnick] need to learn more
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about him from his medical records before making more defi-
nite recommendations.”
In objecting to the reports at trial, the employer’s attorney
argued that the reports of Drs. Rich and Golnick
are all dealing with issues related to depression, the trau-
matic brain injury, the effect of that. And we believe that
that information is not relevant to the proceeding today
because the Court has already issued a decision regard-
ing the depression and the traumatic brain injury and said
that that healed without impairment or restriction. And
this is essentially an attempt to modify, when that’s not
appropriate, because the law of the case says that that’s
already been decided. It’s essentially a relevance objec-
tion, Your Honor.
In response, Gardner’s attorney asserted that
when you do a loss of earning capacity, you do the loss
of earning capacity with respect to the injury that . . . was
precipitated as a result of the work injury, and then you
take the person as whole. What does that person bring to
the table at the time that she was injured?
Gardner’s attorney further stated that
it is our position, when we’re doing the loss of earn-
ing capacity, that the Court must consider, not only the
injuries that [Gardner] sustained at the time of the work
injury, but his — what he brought to the table at the time
that he was injured. What were his preexisting conditions
that could affect his ability to earn a living?
The court overruled the employer’s objection and received the
reports of Drs. Rich and Golnick.
On August 8, 2014, the compensation court filed its “Further
Award” from which this appeal is taken. In sum, the com-
pensation court applied the odd-lot doctrine, which generally
provides that while a worker is not altogether incapacitated
for work, the worker is so handicapped that the worker will
not be employed regularly in any well-known branch of the
labor market, and the compensation court determined that
Gardner was permanently and totally disabled. See Schlup v.
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Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992).
Specifically, in the further award, the court determined that
the necessity for the diskectomy and the three-level cervi-
cal fusion performed by Dr. Phillips was a result of the April
16, 2009, accident. Based upon the medical evidence and the
loss of earning capacity reports from Reilly, the court further
determined that Gardner was permanently and totally disabled.
The court recognized that in its initial award, it had stated
that Gardner’s preexisting cognitive deficits were temporar-
ily aggravated by the accident and that they “resolved to their
prior state and resulted in no permanent impairment as a result
of the work related accident of April 16, 2009.” The court fur-
ther stated:
Having found that [Gardner’s] preexisting emotional
condition returned to its pre-accident state, [Gardner’s]
emotional condition prior to the accident did not resolve.
The Court finds that as a result of the [CSF] and the per-
manent impairment from the three-level cervical fusion
with continuing pain combined with [Gardner’s] prior
emotional and mental state involving learning disability,
depression, anxiety and cognitive impairment all devel-
oped to make [Gardner] permanently and totally disabled
pursuant to the loss of earning capacity analysis of the
vocational rehabilitation expert . . . Reilly.
The court also noted that “[s]everal of [Gardner’s] physicians
have found that [Gardner] will be in need of future medical care
such as Dr. Rich stated for pain management and [Gardner’s]
depression, anxiety, and cognitive difficulties.”
In the further award, as modified by an order nunc pro tunc
filed August 15, 2014, the court ordered that the employer
shall pay to and on behalf of [Gardner] the sums for
temporary total disability and temporary partial disabil-
ity for those periods of time and amounts as set forth
in the Award of September 23, 2010, and the Order of
October 31, 2013 to and including the date of the filing
of this Further Order and thereafter in addition thereto
the [employer] shall pay to and on behalf of [Gardner]
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the sum of [$427.73] per week for so long as [Gardner]
remains permanently and totally disabled.
The court further ordered that the employer pay Gardner cer-
tain outstanding medical expenses and that the employer is
entitled to a credit for previous payments of medical expenses
and indemnity. The court also stated that the employer “should
continue to provide and pay for such reasonable and necessary
medical expenses as may be necessary as a result of the acci-
dent and injury of April 16, 2009.”
The employer appeals.
ASSIGNMENTS OF ERROR
The employer generally assigns, restated, that the compen-
sation court erred when it found that Gardner was permanently
and totally disabled and entered the further award accord-
ingly. In particular, the employer contends that because the
original award found that Gardner’s mental health issues had
reached maximum medical improvement, no further awards
or evidence regarding mental health issues were appropriate.
Thus, the employer claims that the compensation court erred
when it considered Gardner’s mental and cognitive deficits,
admitted reports of Drs. Rich and Golnick, and awarded
future medical care including treatment for Gardner’s men-
tal health.
STANDARDS OF REVIEW
[1] 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 sup-
port the order or award. See Neb. Rev. Stat. § 48-185 (Cum.
Supp. 2014).
[2,3] On appellate review, the factual findings made by
the trial judge of the Workers’ Compensation Court have the
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effect of a jury verdict and will not be disturbed unless clearly
wrong. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541
(2015). In workers’ compensation cases, we determine ques-
tions of law. Id.
ANALYSIS
The employer generally claims that the compensation court
erred when it found that Gardner was permanently and totally
disabled. The employer asserts that in its original award, the
compensation court found that Gardner had reached maxi-
mum medical improvement with respect to his head and
mental injuries resulting from the April 16, 2009, accident
and that this finding was the “law of the case,” thus preclud-
ing consideration of subsequent mental health issues in the
proceedings resulting in the further award. Specifically, the
employer claims the compensation court erred when it consid-
ered Gardner’s preexisting mental health issues and admitted
medical reports which discussed Gardner’s subsequent mental
condition. We find no merit to these arguments and determine
that the compensation court did not err when it found that
Gardner was permanently and totally disabled.
Applicable Law.
[4] The Nebraska Workers’ Compensation Act provides that
when an employee suffers personal injury caused by accident
or occupational disease, arising out of and in the course of his
or her employment, such employee shall receive compensation
from his or her employer if the employee was not willfully
negligent at the time of receiving such injury. Neb. Rev. Stat.
§ 48-101 (Reissue 2010).
With respect to the modification of awards in workers’
compensation cases, Neb. Rev. Stat. § 48-141 (Reissue 2010)
provides:
All amounts paid by an employer or by an insurance
company carrying such risk, as the case may be, and
received by the employee or his or her dependents by
lump-sum payments pursuant to section 48-139 shall be
final and not subject to readjustment if the lump-sum
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settlement is in conformity with the Nebraska Workers’
Compensation Act, unless the settlement is procured by
fraud, but the amount of any agreement or award payable
periodically may be modified as follows: (1) At any time
by agreement of the parties with approval of the Nebraska
Workers’ Compensation Court; or (2) if the parties can-
not agree, then at any time after six months from the date
of the agreement or award, an application may be made
by either party on the ground of increase or decrease of
incapacity due solely to the injury . . . .
It is well recognized with respect to modification of awards
that “[a]t the administrative level, awards can be reopened by
the compensation board for modification to meet changes in
claimant’s condition, such as increase, decrease, or termination
of disability.” 13 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law, ch. 131 at 131-1 (2015). It has
been further stated:
In all states, some kind of provision is made for
reopening and modifying awards. This provision is a
recognition of the obvious fact that, no matter how
competent a commission’s diagnosis of claimant’s con-
dition and earning prospects at the time of hearing
may be, that condition may later change markedly for
the worse, or may improve, or may even clear up alto-
gether. Under the typical award in the form of periodic
payments during a specified maximum period or dur-
ing disability, the objectives of the legislation are best
accomplished if the commission can increase, decrease,
revive, or terminate payments to correspond to a claim-
ant’s changed condition.
Id., § 131.01 at 131-3.
[5] In a proceeding to modify a prior award, the employer
has the burden of establishing a decrease of incapacity and
the employee has the burden of establishing an increase.
Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d
845 (2013). We have stated that the employee has the burden
of proving that his injury caused permanent impairment as a
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predicate to an award for permanent disability, i.e., loss of
earning capacity. See id. See, also, Green v. Drivers Mgmt.,
Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).
[6-9] Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a
workers’ compensation claimant may receive permanent or
temporary workers’ compensation benefits for either partial
or total disability. “Temporary” and “permanent” refer to the
duration of disability, while “total” and “partial” refer to the
degree or extent of the diminished employability or loss of
earning capacity. Rodriguez v. Hirschbach Motor Lines, 270
Neb. 757, 707 N.W.2d 232 (2005). Compensation for tempo-
rary disability ceases as soon as the extent of the claimant’s
permanent disability is ascertained. Id. In other words, tempo-
rary disability benefits should be paid only to the time when
it becomes apparent that the employee will get no better or no
worse because of the injury. Visoso v. Cargill Meat Solutions,
supra; Rodriguez v. Hirschbach Motor Lines, supra. Simply
stated, when an injured employee has reached maximum medi-
cal improvement, any remaining disability is, as a matter of
law, permanent. Id.
[10] We have stated that temporary disability benefits are
discontinued at the point of maximum medical improvement,
because a disability cannot be both temporary and permanent
at the same time. Visoso v. Cargill Meat Solutions, supra.
Temporary payments do not continue after maximum medi-
cal improvement has been reached by the employee, as to all
injuries. See Rodriguez v. Hirschbach Motor Lines, supra.
And once the employer establishes that the employee has
reached maximum medical improvement, the employer has
satisfied its burden of proof that the employee’s temporary
disability payments should cease. See Visoso v. Cargill Meat
Solutions, supra.
After determining that temporary disability payments should
cease, the next question is what, if any, permanent disability
payments the employer should pay to the employee. See id.
Permanent disability is an essential element of an employee’s
claim in workers’ compensation, and therefore, the burden
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rests with the employee to prove the elements of his or her
compensation claim. Id. See, also, Green v. Drivers Mgmt.,
Inc., supra. After reaching maximum medical improvement,
the employee has the burden of proving that his or her injury
caused permanent impairment and that this permanent impair-
ment resulted in a loss of earning capacity. See Visoso v.
Cargill Meat Solutions, supra.
Employer’s Petition to Modify
and Further Award.
In this case, the compensation court awarded temporary
benefits to Gardner in the original award filed September 23,
2010. On May 6, 2013, the employer filed a petition to modify
the original award, alleging that Gardner had reached maxi-
mum medical improvement as to all of his injuries and had
experienced a decrease in his incapacity. In his answer filed
May 21, Gardner alleged that he had not reached maximum
medical improvement, that he had not experienced a decrease
in incapacity, and that he “may have experienced an increase
in incapacity due solely to his original injury.” Gardner sug-
gests that a petition to modify may not have been appropriate.
However, because the original award did not set forth terms to
convert from temporary to permanent benefits and the parties
did not agree to convert, we reject this suggestion. Compare,
Weber v. Gas ’N Shop, 280 Neb. 296, 786 N.W.2d 671 (2010);
Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d
598 (2007).
With respect to when Gardner reached maximum medi-
cal improvement, the record shows that on May 24, 2013,
the compensation court filed an order in which it stated that
Gardner “has reached maximum medical improvement” and
that he should receive a functional capacity evaluation pur-
suant to Dr. Phillips’ recommendation. Furthermore, in an
August 20 letter, the employer’s counsel asked Dr. Phillips
whether Gardner had reached maximum medical improve-
ment, and in a September 11 response, Dr. Phillips stated that
Gardner had reached maximum medical improvement. We
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note for completeness that in an order filed on October 31, the
compensation court recognized, inter alia, that the parties had
stipulated that the employer
shall pay to [Gardner] indemnity at the rate of a 45
percent loss of earning capacity to the time of final
­
resolution and that the finding of the 45 percent loss
of earning capacity shall be considered an agreement
by the parties with approval by the Nebraska Workers’
Compensation Court.
Because it was established that Gardner had reached maxi-
mum medical improvement, Gardner had the burden of prov-
ing that his injury caused permanent impairment and that this
permanent impairment resulted in a loss of earning capac-
ity. See Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826
N.W.2d 845 (2013). After trial, the compensation court filed
its further award on August 8, 2014, in which the court deter-
mined that Gardner’s injury had caused permanent impairment
and that his permanent impairment resulted in a 100-percent
loss of earning capacity. The compensation court thus awarded
Gardner permanent total disability benefits.
Employer’s Contentions.
The employer claims that the compensation court erred
in its further award, because the court considered Gardner’s
preexisting mental and cognitive conditions and admitted and
relied upon the reports of Drs. Rich and Golnick, which
reports discussed Gardner’s mental and cognitive conditions.
The employer asserts that such consideration violates the law-
of-the-case doctrine. The employer acknowledges that in the
original award, the court had determined that Gardner had
preexisting mental health problems that were temporarily exac-
erbated by the April 16, 2009, accident, but the employer
focuses on the ruling to the effect that the head and mental
injuries resulting from the accident had reached maximum
medical improvement. In the current proceeding, the employer
argues that given the finding of maximum medical improve-
ment of mental health issues in the original award, the court
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improperly considered Gardner’s mental and cognitive condi-
tions and the medical reports that discuss such conditions in
determining the extent of Gardner’s disability in the further
award. In response, Gardner notes that in the original award,
the Workers’ Compensation Court found that Gardner had a
preexisting mental condition and that Gardner’s mental and
emotional deficits had returned to the baseline preexisting
level. Gardner contends that the enduring fact for law-of-
the-case purposes is that Gardner has a preexisting mental
health condition.
[11] We have stated that the law-of-the-case doctrine reflects
the principle that an issue litigated and decided in one stage
of a case should not be relitigated at a later stage. In re 2007
Appropriations of Niobrara River Waters, 283 Neb. 629, 820
N.W.2d 44 (2012). With respect to the law-of-the-case doc-
trine in workers’ compensation cases, it has been stated:
[In a] [c]hange-of-condition reopening proceeding, the
issue before the [compensation court] is sharply restricted
to the question of extent of improvement or worsening of
the injury on which the original award was based. If the
original award held that there was no connection between
the accident and claimant’s permanent disability, there is
nothing to reopen, and claimant cannot retry the issue of
work-connection through the device of a reopening peti-
tion. Conversely, when the employee reopens to show
increased disability, the insurance carrier cannot raise the
basic issue of liability. In short, no matter who brings
the reopening proceeding, neither party can raise original
issues such as work-connection, employee or employer
status, occurrence of a compensable accident, and degree
of disability at the time of the first award.
13 Arthur Larson & Lex K. Larson, Larson’s Workers’
Compensation Law § 131.03[2][b] at 131-35 (2015). The
authority just quoted illustrates the types of determinations in
a workers’ compensation case that are subject to the law-of-
the-case doctrine. We have effectively applied the concept of
law of the case in workers’ compensation cases. E.g., Starks
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v. Cornhusker Packing Co., 254 Neb. 30, 37-38, 573 N.W.2d
757, 763 (1998) (stating in modification proceeding that modi-
fication of original award could not be applied retroactively
to date of original award because “a modification award,
retroactively applied to the date of the original award, would
effectively afford the parties involved an opportunity to reliti-
gate the award. Such action is prohibited by the principle of
res judicata”).
In the present case, in the original award, the compensation
court found that Gardner had preexisting mental and cogni-
tive deficits prior to the April 16, 2009, accident, including
depression, anxiety, confusion, and memory loss. The court
determined that these preexisting mental and cognitive deficits
were temporarily aggravated by the injury to the head in the
accident, but that after the aggravation subsided, Gardner’s
mental and cognitive deficits returned to their prior baseline
condition. The court stated that “[t]he evidence preponder-
ates in a finding that [Gardner’s] preexisting conditions were
the same from a cognitive standpoint prior to the accident as
subsequent to the accident and that the exacerbation of the
symptoms from the accident of April 16, 2009, was a tempo-
rary condition.”
The fact that Gardner had preexisting mental and cognitive
deficits that remained after being temporarily exacerbated by
the accident, as found in the original award, became a fact
decided in this case from which no appeal was taken. Given
the fact that Gardner had been determined to have a preexist-
ing mental health condition, under the law-of-the-case doctrine,
the compensation court could and did properly consider the
significance of the preexisting condition in rendering its fur-
ther award. In this regard, the compensation court stated in the
further award:
The Award of September 23, 2010 acknowledged
[Gardner’s] preexisting cognitive, depression and anxiety
deficits and found that the accident of April 16, 2009
resulted in a temporary aggravation that resolved to their
prior state and resulted in no permanent impairment as
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a result of the work related accident of April 16, 2009.
Having found that [Gardner’s] preexisting emotional con-
dition returned to its pre-accident state, [Gardner’s] emo-
tional condition prior to the accident did not resolve.
[12] As a further argument regarding Gardner’s mental
health issue, the employer contends that the reports of Drs.
Rich and Golnick should not have been considered. We do
not agree. The reports of Drs. Rich and Golnick were relevant
to the issue of Gardner’s mental health condition as it related
to his disability at the time of consideration of the petition
to modify. In this case, the Workers’ Compensation Court
did not make a separate award for mental illness. Compare
Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179
(2009). Nevertheless, mental health evidence was relevant to
the issue of permanent disability. In Dr. Rich’s reports, he
noted that Gardner suffered from depression, anxiety, and post-
traumatic stress disorder, which limited his ability to work.
In Dr. Golnick’s report, he noted that Gardner experienced
depression, dizziness, cognitive and memory problems, regu-
lar episodes of confusion, and moderate to severe anxiety.
These symptoms, as well as Gardner’s reported “difficulty
with word finding,” bore on Gardner’s employability. The
Workers’ Compensation Court is the sole judge of the cred-
ibility and weight to be given medical evidence, even when
the health care professionals do not give live testimony. See
Damme v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014).
The compensation court did not err when it admitted and con-
sidered the reports of Drs. Rich and Golnick.
[13-15] The employer claims generally that the compensa-
tion court erred when it found Gardner was permanently and
totally disabled. We find no merit to this assignment of error.
Causation of an injury or disability presents an issue of fact.
Damme v. Pike Enters., supra. Whether a plaintiff in a work-
ers’ compensation case is totally and permanently disabled
is a question of fact. See, Armstrong v. State, 290 Neb. 205,
859 N.W.2d 541 (2015); Money v. Tyrrell Flowers, 275 Neb.
602, 748 N.W.2d 49 (2008). In testing the sufficiency of the
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evidence to support the findings of fact, an appellate court
considers the evidence in the light most favorable to the suc-
cessful party, every controverted fact must be resolved in favor
of the successful party, and we give the successful party the
benefit of every inference reasonably deducible from the evi-
dence. See Money v. Tyrrell Flowers, supra.
[16,17] With respect to preexisting conditions, we have
stated that a claimant is entitled to an award under the Nebraska
Workers’ Compensation Act for a work-related injury and
disability if the claimant shows, by a preponderance of the
evidence, that the claimant sustained an injury and disability
proximately caused by an accident which arose out of and in
the course of the claimant’s employment, even though a pre-
existing disability or condition has combined with the present
work-related injury to produce the disability for which the
claimant seeks an award. Schlup v. Auburn Needleworks, 239
Neb. 854, 479 N.W.2d 440 (1992). See, also, Damme v. Pike
Enters., supra. A workers’ compensation claimant can recover
benefits when an injury, arising out of and in the course of
employment, combines with a preexisting condition to produce
a disability. See Damme v. Pike Enters., supra.
Although a South Carolina Court of Appeals’ case involved
issues regarding a separate award for mental illness, we agree
with the observation of that court, which stated that “[a mental
health] symptom which is present and causally connected, but
found not to impact upon the claimant’s condition at the time
of the original award, may later manifest itself in full bloom
and thereby worsen his or her condition.” Estridge v. Joslyn
Clark Controls, Inc., 325 S.C. 532, 540, 482 S.E.2d 577, 581
(S.C. App. 1997). Thus, the worsening of a claimant’s mental
health over time remains a possibility.
In the present case, the Workers’ Compensation Court
relied on the odd-lot doctrine. In Schlup, we considered the
odd-lot doctrine and agreed with the Workers’ Compensation
Court that the claimant was permanently and totally disabled
under the odd-lot doctrine. We quoted Professor Larson and
stated that “‘[u]nder the odd-lot doctrine, which is accepted
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in virtually every jurisdiction, 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.’ 2
A. Larson, The Law of Workmen’s Compensation § 57.51(a)
at 10-164.68 (1989).” Schlup v. Auburn Needleworks, 239
Neb. at 865, 479 N.W.2d at 448. See 7 Arthur Larson & Lex
K. Larson, Larson’s Workers’ Compensation Law § 83.01
(2015). We further quoted Professor Larson by stating:
“A considerable number of the odd-lot cases involve
claimants whose adaptability to the new situation cre-
ated by their physical injury was constricted by lack of
mental capacity or education. This is a sensible result,
since it is a matter of common observation that a man
whose sole stock in trade has been the capacity to per-
form physical movements, and whose ability to make
those movements has been impaired by injury, is under
a severe disadvantage in acquiring a dependable new
means of l­ivelihood . . . .”
Schlup v. Auburn Needleworks, 239 Neb. at 865, 479 N.W.2d
at 448. See 7 Larson & Larson, supra, § 83.04.
In Schlup, the claimant suffered from carpal tunnel syn-
drome arising out of her employment and she filed a claim in
the Workers’ Compensation Court. We noted that the claim-
ant had preexisting problems with her back and that she had
left high school in 10th grade and had not received a diploma
through the general educational development program. We
recognized that because of her preexisting back problems and
academic shortcomings, it was impossible for her to find work
that did not involve the use of her hands. We determined that
in assessing her work-related injury, the compensation court
did not err when it considered evidence of her preexisting
back problems and academic shortcomings.
[18] With respect to total and permanent disability, we
recently stated that total disability does not mean a state of
absolute helplessness. Armstrong v. State, 290 Neb. 205, 859
N.W.2d 541 (2015). See, also, Schlup v. Auburn Needleworks,
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supra. 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 attain-
ments could do. Id.
In the present case, the Workers’ Compensation Court
found that Gardner had reached maximum medical improve-
ment with respect to all of his injuries arising out of the April
16, 2009, accident. Relying upon the previous finding of his
“pre-accident cognitive and learning disability, depression and
anxiety,” the evidence properly admitted at trial, and applying
the odd-lot doctrine, the compensation court determined that
Gardner’s injury resulting from the accident had combined
with his preexisting mental and cognitive conditions and
that Gardner was permanently and totally disabled. Included
in the evidence upon which the compensation court relied
was a report from Dr. Golnick dated March 25, 2013, which
stated that since Gardner underwent the three-level cervical
fusion of his spine, Gardner continued to have headaches and
neck pain, and that he “report[ed] periods of confusion and
difficulty with word finding.” The compensation court also
noted a December 16 report by Dr. Rich, which stated that
Gardner had preexisting cognitive deficits and depression
prior to the accident and that Gardner “limits his physical
activity based on his pain which restricts [Gardner’s] interac-
tions and limits other activity and social involvements based
on his anxiety and depression.” Importantly, Dr. Rich stated
that Gardner’s restrictions continued to cause an inability to
work. Dr. Rich stated that Gardner’s preexisting cognitive
conditions were permanent and “were naturally progressing
due to . . . Gardner’s lack of treatment.” Under the odd-lot
doctrine, the court could look to Gardner’s physical injury
resulting from the accident along with his preexisting mental
and cognitive conditions, including depression and anxiety, in
order to determine the extent of his loss of earning power. In
view of the evidence and applicable law, we determine that
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the court did not err when it determined that Gardner was
permanently and totally disabled.
We note for completeness that the employer also claims that
the compensation court erred when it awarded Gardner future
medical care for his depression, anxiety, and cognitive deficits.
However, our reading of the further award does not show the
specific award about which the employer complains and we
reject this assignment of error.
According to the further award, the employer “should con-
tinue to provide and pay for such reasonable and necessary
medical expenses as may be necessary as a result of the
accident and injury of April 16, 2009.” In paragraph III of
the further award, the compensation court stated: “Several of
[Gardner’s] physicians have found that [Gardner] will be in
need of future medical care such as Dr. Rich stated for pain
management and [Gardner’s] depression, anxiety, and cogni-
tive difficulties.” In paragraph IV of the further award, the
court stated that the employer
should pay to and on behalf of [Gardner] any outstanding
medical bills set forth in Exhibit 237. The defendant is
entitled to a credit for any previous payment of medical
bills as itemized in Exhibits 267 and 268. To the extent
that there are any other third-party payees or reimburse-
ments to [Gardner] those payments should be made as
indicated. In addition, the medical fees shall be paid
pursuant to the medical fee schedule as adopted by the
Nebraska Workers’ Compensation Court.
In paragraph V of the further award, the court stated that the
employer “is entitled to a credit for its previous payment of
indemnity and medical expenses as set forth in Exhibit 267.”
The further award also provided that the employer “shall
pay to and on behalf of [Gardner] the outstanding medical
expenses set forth more particularly in paragraph IV above
and subject to the terms and conditions of that paragraph.”
The order provided that the employer “is entitled to a credit
for its previous payment of indemnity and medical expenses
as set forth more particularly in paragraphs IV and V above.”
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Taken as a whole, the court did not make a specific order
finding a mental health injury or specifically regarding future
medical care for Gardner’s mental health issues. We find no
error in the further award.
CONCLUSION
As explained above, we determine that the compensation
court did not err when it admitted and relied upon the reports
of Drs. Rich and Golnick and when it considered Gardner’s
preexisting mental and cognitive deficits in determining the
extent of his disability. We further determine that the compen-
sation court did not err when it applied the odd-lot doctrine
and found that Gardner was permanently and totally disabled.
Accordingly, we affirm the further award of the compensa-
tion court.
A ffirmed.