Rogers v. Jack's Supper Club ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/15/2021 01:07 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107Sheryl A. Rogers, appellee, v. Jack’s Supper
Club and Continental Western
Group, appellants.
___ N.W.2d ___
Filed January 8, 2021. No. S-20-170.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the compensation court may be modified, reversed, or set aside
only upon the grounds that (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. ____: ____. An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
3. Courts: Appeal and Error. After receiving a mandate, a trial court is
without power to affect rights and duties outside the scope of the remand
from an appellate court.
4. Judgments: Appeal and Error. When an appellate court remands a
cause with directions, the judgment of the appellate court is a final judg-
ment in the cause.
5. Courts: Appeal and Error. When a lower court is given specific
instructions on remand, it must comply with the specific instructions and
has no discretion to deviate from the mandate.
6. Workers’ Compensation. Neb. Rev. Stat. § 48-120(6) (Cum. Supp.
2018) establishes that an employer may contest any future claims for
medical treatment on the basis that such treatment is unrelated to the
original work-related injury or occupational disease, or that the treat-
ment is unnecessary or inapplicable.
Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107Jenna M. Christensen and Caroline M. Westerhold, of Baylor
Evnen, L.L.P., for appellants.
Trevor J. Matulka and Todd R. McWha, of Waite & McWha
Law Firm, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Funke, and
Papik, JJ.
Cassel, J.
INTRODUCTION
An employer and its insurer appeal a Nebraska Workers’
Compensation Court’s order on remand, which appointed the
employee’s “Form 50” physician and clarified that it was not
ordering a review of the employee’s treatment regimen. The
employer and its insurer attack the order as deficient under
Workers’ Comp. Ct. R. of Proc. 11(A) (2011) in that it made no
determination whether the employee’s future medical treatment
will be reasonable or necessary. Because the order complied
with our mandate and fully resolved the controversy presented
by the employee’s motion to compel, we decline to provide a
ruling in anticipation of a future controversy beyond the scope
of our mandate. We affirm the court’s order.
BACKGROUND
This is the second appearance of the parties before this
court. We first summarize the prior appeal and then set forth
the additional background leading to the instant appeal.
First Appeal
In our previous opinion, 1 we described the factual back-
ground in more detail. For purposes of this appeal, our opinion
is summarized as follows.
Continental Western Group is the workers’ compensation
carrier for Jack’s Supper Club, which employed Sheryl A.
1
Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d 754 (2019).
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Nebraska Supreme Court Advance Sheets
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ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107Rogers. We hereinafter refer to the employer and its insurer
collectively as “JSC.”
In 2001, Rogers injured her back in the course and scope
of her employment. As part of a settlement between Rogers
and JSC, she completed a Form 50. The Form 50 anticipated
that JSC would pay for treatment of Rogers’ work-related
injuries by her Form 50 physician, who could only be changed
through an agreement of Rogers and JSC or by order of the
Nebraska Workers’ Compensation Court. Because Rogers lived
in Nebraska at the time, Rogers chose a Nebraska doctor to
serve as her Form 50 physician.
In 2010, Rogers moved to Florida and informed JSC that
she had chosen a Florida doctor, Dr. Jonathan Daitch, as her
new Form 50 physician. JSC responded that Rogers could
not unilaterally change her Form 50 physician. After discus-
sions between Rogers and JSC broke down and JSC stopped
paying for Rogers’ treatment, Rogers filed a motion to com-
pel, demanding that JSC cover Rogers’ medical treatment by
Dr. Daitch.
JSC argued that Rogers did not have the unilateral power
to change her Form 50 physician pursuant to a statute 2 gov-
erning selection of Form 50 physicians. Furthermore, JSC
challenged the necessity and reasonableness of Rogers’ ­opioid
treatment, offering medical reports setting forth opinions
regarding Rogers’ injury and treatment. The reports expressed
concerns about possible adverse effects from Rogers’ medica-
tion regimen and recommended weaning her from opioids. The
compensation court expressed a similar concern at a hearing
as well.
The compensation court issued a written order, concluding
that because Rogers had moved to Florida and could not be
expected to continue to be treated by a Nebraska doctor, the
statute did not apply. The compensation court ordered JSC
2
Neb. Rev. Stat. § 48-120(2) (Cum. Supp. 2018).
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Nebraska Supreme Court Advance Sheets
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ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107to pay Rogers’ medical bills and stated that Dr. Daitch was
allowed to continue to treat Rogers. JSC appealed.
This court reversed the compensation court’s order and
remanded the cause with instructions. We ruled that JSC was
not required to pay for Rogers’ Florida medical treatment,
because Rogers had not followed the statutory procedures to
change her Form 50 physician. 3 We characterized the services
furnished by providers in Florida as “‘medical services fur-
nished or ordered by [a] physician or other person selected by
the employee in disregard of [§ 48-120].’” 4 Furthermore, we
determined that the compensation court’s order was insufficient
under rule 11(A). We explained:
We cannot determine what the compensation court
meant by ordering that Rogers is allowed to continue
treatment with Dr. Daitch’s office. It is not clear if the
compensation court intended to make Dr. Daitch Rogers’
Form 50 Physician going forward or if it made the nec-
essary findings to do so. We have previously alluded to
the compensation court’s authority to order a change of
the Form 50 Physician, but it can do so when it “deems
such change is desirable or necessary.” . . . We read the
compensation court’s order, however, to equivocate about
whether it is “desirable or necessary” for Rogers to con-
tinue to be treated by Dr. Daitch. While the order stated
that Rogers could continue to receive treatment from Dr.
Daitch, it expressed concern about the opioids he contin-
ues to prescribe for Rogers.
In addition, the compensation court appeared to believe
that some type of review of the opioid regimen prescribed
by Dr. Daitch was necessary. We do not understand
from its order, however, whether the court was ordering
3
See § 48-120(2).
4
Rogers, supra note 1, 304 Neb. at 615, 935 N.W.2d at 762 (quoting
§ 48-120(2)(f )).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107such a review or what effect the results of that review
might have on whether the compensation court believes it
is necessary or desirable for Rogers to have Dr. Daitch as
her Form 50 Physician. 5
Because it was not possible to determine whether the compen-
sation court made the findings necessary to support the relief
awarded, we remanded the cause and instructed:
Upon remand, the compensation court shall enter an order
regarding Rogers’ right to reimbursement for ongoing
medical treatment that complies with rule 11. Such order
shall address whether it is changing Rogers’ Form 50
Physician under § 48-120(6) and clarify the ambiguity
about any review of Rogers’ treatment regimen that is to
take place. 6
Instant Appeal
On remand, it does not appear that the compensation court
held a hearing or that it sought or received any new evidence.
The only bill of exceptions presented in the instant appeal is
the same one that was filed in the first appeal.
In the compensation court’s order on remand, it appointed
Dr. Daitch as Rogers’ Form 50 physician and found:
[I]t is desirable or necessary, or both, to allow [Rogers]
to change physicians because she now lives in Florida.
Dr. . . . Daitch is appoint[ed] the [r]ule 50 physician. Dr.
Daitch is appointed because he has treated [Rogers] for
a number of years, and it is [Rogers’] desire to remain
under his care and treatment.
The compensation court clarified:
[JSC] had Nebraska physicians write reports as the [c]ourt
noted in its Order of September 26, 2018. The discus-
sion in that Order was meant to provide the parties with
5
Id. at 617, 935 N.W.2d at 763.
6
Id. at 618, 935 N.W.2d at 764.
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ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107advice to submit to Dr. Daitch the reports of physicians
who believe there should be an adjustment in care. Far
too often, there is a breakdown in communication, and
one physician (especially a physician in Florida) does not
know what the other physicians are thinking. The only
purpose of the comments was to advise the parties and/or
[JSC] to submit to Dr. Daitch the reports and recom-
mendations of the other physicians. It is up to Dr. Daitch
to decide the appropriate method of care and treatment
for [Rogers].
JSC filed a timely appeal, which we moved to our docket. 7
ASSIGNMENTS OF ERROR
JSC assigns, reordered, that the compensation court (1) vio-
lated rule 11(A) in its order on remand and (2) erred as a mat-
ter of law and fact in failing to determine whether Dr. Daitch’s
treatment was reasonable and necessary to treat Rogers’ work-
related injuries.
STANDARD OF REVIEW
[1,2] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside only upon the grounds
that (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. 8 An appellate court is obligated in
workers’ compensation cases to make its own determinations
as to questions of law. 9
7
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
8
Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).
9
Frans v. Waldinger Corp., 306 Neb. 574, 946 N.W.2d 666 (2020).
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ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107[3] After receiving a mandate, a trial court is without power
to affect rights and duties outside the scope of the remand from
an appellate court. 10
ANALYSIS
Rule 11
JSC first challenges the compensation court’s order on
remand, arguing that it fails to satisfy a compensation court
rule requiring a reasoned decision. We disagree.
Rule 11(A) states: “Decisions of the court shall provide the
basis for a meaningful appellate review. The judge shall spec-
ify the evidence upon which the judge relies.” JSC argues that
“comparing the [order reversed in the first appeal] and the . . .
[o]rder on [r]emand, the findings . . . as to the necessity and
reasonableness of . . . medical treatment remain contradictory
and unclear.” 11
At this point, we observe that JSC does not assign error
or make any argument attacking the portion of the order on
remand appointing Dr. Daitch as Rogers’ Form 50 physician.
On remand, the court made an express finding that it was
“desirable or necessary, or both” for Dr. Daitch to be Rogers’
new Form 50 physician. The court also cited the specific evi-
dence upon which it relied to justify that relief: Rogers now
lives in Florida and cannot be treated by Nebraska doctors, Dr.
Daitch has treated Rogers for many years, and Rogers desires
to stay under his care.
Rather, JSC addresses only the portion of the order on remand
resolving the ambiguity we noted in our first opinion. In that
portion, the compensation court clarified that it was not order-
ing a review of Dr. Daitch’s treatment, but instead was simply
fostering discussion between JSC’s experts and Dr. Daitch,
10
TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d
145 (2020).
11
Brief for appellants at 14.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107because ultimately “[i]t is up to Dr. Daitch to decide the appro-
priate method of care and treatment for [Rogers].”
Contrary to JSC’s argument, we do not read or understand
this language as a delegation of the court’s responsibility to
resolve a “dispute regarding medical . . . services . . . to be
furnished” or the court’s “authority to determine the neces-
sity, character, and sufficiency of any medical services . . . to
be furnished.” 12 Rather, it was simply a recognition that Dr.
Daitch was not Rogers’ Form 50 physician previously and that
all of the evidence relating to his treatment regimen was devel-
oped prior to his designation as such. There is literally no evi-
dence that in his capacity as the Form 50 physician, Dr. Daitch
had prescribed any course of treatment; thus, JSC effectively
relies on pure speculation.
[4] More fundamentally, JSC’s argument regarding rule
11(A) relies upon a flawed premise. When an appellate court
remands a cause with directions, the judgment of the appel-
late court is a final judgment in the cause. 13 The portion of
the first order, upon which JSC relies for comparison, has no
force or effect after our reversal of it. The order on remand
stands upon its own merits. JSC’s argument that the order on
remand violated rule 11(A) lacks merit. We therefore turn to
its substantive argument regarding the content of the order
on remand.
Treatment Determination
[5] Contrary to JSC’s substantive argument, the compensa-
tion court was not “specifically directed to make a determina-
tion as to whether the opioid treatment was reasonable and
necessary medical care.” 14 We have consistently held that
when a lower court is given specific instructions on remand, it
12
§ 48-120(6).
13
See Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997).
14
Brief for appellants at 12.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107must comply with the specific instructions and has no discre-
tion to deviate from the mandate. 15 We have already recited
the directions of our remand. In compliance with them, the
compensation court “chang[ed] Rogers’ Form 50 physician”
and “clarif[ied] the ambiguity about any review of Rogers’
treatment regimen.” 16 The compensation court obeyed our
instructions and did not deviate from our mandate.
[6] More broadly, JSC argues that the compensation court
should have determined whether Dr. Daitch’s treatment of
Rogers was reasonable or necessary. Section 48-120(6) estab-
lishes that an employer may contest any future claims for
medical treatment on the basis that such treatment is unrelated
to the original work-related injury or occupational disease, or
that the treatment is unnecessary or inapplicable. 17 But, in this
regard, JSC is anticipating a future controversy rather than
seeking to resolve an existing dispute.
Our decision in the first appeal reversed the compensation
court’s original order. Because Dr. Daitch was not Rogers’
Form 50 physician, her motion to compel failed. This litigation
has settled that prior to the Form 50 physician designation, JSC
is not required to pay for the treatment that was disputed in the
motion to compel.
At oral argument, in response to a question whether “going
forward if Dr. Daitch prescribes those opioids or prescribes
any course of treatment, that [JSC] would have the ability to
challenge that as not something they are required to reimburse
because it is not reasonable and necessary,” Rogers conceded
that “[i]f they want to [do so, it would be] challengeable.” In
other words, after this appeal, if Dr. Daitch’s treatment regi-
men as the Form 50 physician is disputed, JSC may challenge
it in a subsequent proceeding. However, this court will not
15
TransCanada Keystone Pipeline, supra note 10.
16
Rogers, supra note 1, 304 Neb. at 618, 935 N.W.2d at 764.
17
See Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ROGERS v. JACK’S SUPPER CLUB
Cite as 308 Neb. 107instruct the compensation court to indulge in speculation in
anticipation of a future controversy.
CONCLUSION
The compensation court did not err in its order on remand. It
sufficiently resolved the ambiguity inherent in its original order
and provided a basis for meaningful appellate review. Thus, the
compensation court complied with this court’s specific instruc-
tions. Whether a controversy exists after the appointment of
Dr. Daitch as Rogers’ Form 50 physician is pure speculation. If
such a dispute is determined to exist, the procedures authorized
in § 48-120 provide the authority to resolve it. We affirm the
compensation court’s order on remand.
Affirmed.
Freudenberg, J., participating on briefs.
Stacy, J., not participating.