Fentress v. Westin, Inc. ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/21/2020 08:06 AM CST
- 619 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
Suzy Fentress, formerly known as Suzy Schlick,
appellee, v. Westin, Inc., and its workers’
compensation insurer, LM Insurance
Corporation, appellants.
___ N.W.2d ___
Filed December 6, 2019. No. S-19-128.
1. Appeal and Error. As a threshold matter, an appellate court must
determine what assignments of error were properly raised and argued
on appeal.
2. Rules of the Supreme Court: Appeal and Error. The cross-appeal
section of an appellate brief must set forth a separate title page, a table
of contents, a statement of the case, assigned errors, propositions of law,
and a statement of the facts.
3. ____: ____. When a brief of an appellee fails to present a proper cross-
appeal pursuant to Neb. Ct. R. App. P. § 2-109 (rev. 2014), an appellate
court declines to consider its merits.
4. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the compensation court may be modified, reversed, or set aside
by an appellate court 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 sup-
port the order or award.
5. ____: ____. Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless they are
contrary to law or depend on findings of fact which are clearly wrong in
light of the evidence.
6. Workers’ Compensation: Statutes: Appeal and Error. The meaning
of a statute is a question of law, and an appellate court is obligated in
workers’ compensation cases to make its own determinations as to ques-
tions of law.
- 620 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
7. Workers’ Compensation: Evidence: Appeal and Error. Admission of
evidence is within the discretion of the Workers’ Compensation Court,
whose determination in this regard will not be reversed upon appeal
absent an abuse of discretion.
8. Workers’ Compensation. Whether a plaintiff in a Nebraska workers’
compensation case is totally disabled is a question of fact.
9. Workers’ Compensation: Evidence: Appeal and Error. In testing
the sufficiency of the evidence to support the findings of fact in a
workers’ compensation case, 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.
10. Workers’ Compensation: Pretrial Procedure. Neb. Rev. Stat. § 48-177
(Cum. Supp. 2018) is a voluntary dismissal of a case which removes the
case from the compensation court’s docket.
11. Workers’ Compensation. Neb. Rev. Stat. § 48-162.03(1) (Cum. Supp.
2018) grants a compensation court broad authority to rule on any motion
except motions for new trial and motions for reconsideration.
12. Workers’ Compensation: Evidence. Given the beneficent purposes of
workers’ compensation law, a compensation court can admit evidence in
order to investigate cases in the manner it judges is best calculated to
ascertain the substantial rights of the parties and to carry out justly the
spirit of the Nebraska Workers’ Compensation Act.
13. Workers’ Compensation: Rules of the Supreme Court. If an
employer denies compensability for an injury, the employee can avoid
the chain of referral and has a right pursuant to Neb. Rev. Stat.
§ 48-120(2)(a) (Cum. Supp. 2018) and Workers’ Comp. Ct. R. of Proc.
50(A)(6) (2018) to select his or her own physicians for treatment and
later seek compensation.
14. Workers’ Compensation: Proximate Cause: Proof. In workers’ com-
pensation cases, an independent intervening cause, as the proximate
cause of an injury, is, generally, a matter of defense and, as such, must
be proved by the party asserting that defense.
15. Workers’ Compensation. The mere possibility of an independent
intervening cause does not relieve an employer from liability for an
employee’s otherwise compensable claim for workers’ compensation
and benefits.
16. Workers’ Compensation: Proof. A defendant asserting a break in
causation by an independent intervening cause must prove the break
in causation by competent medical testimony if the claimed injuries
are of such a character that scientific testimony is required to prove
their validity.
- 621 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
17. Workers’ Compensation: Attorney Fees. A determination of an award
of attorney fees under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2018) must
be calculated on a case-by-case basis.
Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Affirmed.
Robert Kinney-Walker, of Law Offices of James W. Nubel,
for appellants.
Brynne Holsten Puhl, of Atwood, Holsten, Brown, Deaver &
Spier Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Suzy Fentress, plaintiff-appellee, suffered a work-related
injury in October 2014 while working for Westin, Inc. In
October 2017, the Workers’ Compensation Court entered an
award under which she received temporary partial workers’
compensation benefits. In 2018, Westin and LM Insurance
Corporation (collectively Westin), defendants-appellants, filed
a motion to terminate these temporary indemnity benefits and
a motion to determine maximum medical improvement (MMI)
and permanency. On October 22, 2018, the compensation court
held an evidentiary hearing on Westin’s motion to determine
MMI. The compensation court admitted significant medical
evidence, depositions, and testimony. On October 25, after the
hearing, Westin moved to withdraw its motion to determine
MMI, but the compensation court disallowed the withdrawal of
the motion. A subsequent hearing was held on November 19,
on Fentress’ motion for attorney fees.
In a written order filed January 15, 2019, the compensation
court made detailed factual findings and, inter alia, awarded
temporary total disability and attorney fees to Fentress. Westin
filed an appeal, and Fentress filed a purported cross-appeal.
- 622 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
As explained below, we determine that the compensation
court did not err when it overruled Westin’s motion to with-
draw its motion to determine MMI; admitted recordings of
Fentress’ consultation with her physician; found that Fentress
had achieved MMI with respect to mental health issues but
not physical health issues; and awarded Fentress medical treat-
ment, temporary total disability, and attorney fees. Accordingly,
we affirm. Further, as indicated below, we do not consider
Fentress’ purported cross-appeal.
STATEMENT OF FACTS
On October 4, 2014, Fentress suffered compensable work-
related injuries to her hip and mental health in the course of her
employment with Westin, Inc., and she was awarded temporary
partial benefits by the Nebraska Workers’ Compensation Court
in an October 6, 2017, award. The fact of the initial injury
and initial award are not challenged in this appeal. Following
the 2017 award, Fentress continued treatment, including hip
surgery and pain management treatment targeted to avoid
substance abuse relapse. Westin eventually filed motions to
terminate indemnity benefits and to determine MMI and per-
manency, and in response, Fentress filed a motion requesting
payment of medical expenses and attorney fees. The compensa-
tion court’s January 15, 2019, order on these motions generally
in favor of Fentress is the subject of this appeal.
The compensation court held a hearing on October 22, 2018,
limited to the issue of whether Fentress had reached MMI. The
parties submitted evidence and testimony, and the court took
judicial notice of the October 6, 2017, award. On November
19, 2018, the court held a hearing on medical expenses to
date and Fentress’ request for attorney fees. The compensation
court dictated its reasoning regarding the award of attorney
fees to Fentress at the November 19 hearing. Neither hearing
addressed permanency benefits.
At the October 22, 2018, hearing, the compensation court
admitted exhibit 85, which included a recording taken by
Fentress on May 2, 2018, of her consultation with her treating
- 623 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
physician, Dr. Steven Aviles. Fentress testified in her deposi-
tion and at trial that she took her cell phone to the appoint-
ments with Dr. Aviles and recorded what they said to each
other, because she did not want to forget what he said. She
testified that sometimes when she visited Dr. Aviles, she could
not remember later what he said to do, so she recorded the
conversation with her cell phone. At the point the recording
was made, Fentress had been denying any improvement from
surgery and Dr. Aviles placed Fentress at MMI and ordered a
functional capacity evaluation (FCE). The recording includes
the following exchange:
Dr. Aviles: How does it feel?
Fentress: [inaudible.]
Dr. Aviles: Ok, well. At this point we’ll say the surgery
failed. Okay. It didn’t work. We tried.
Dr. Aviles: I’ll give you [an FCE] to assess where
you’re at. Those are going to be permanent restrictions.
Okay?
Fentress: Okay.
Dr. Aviles: There is no interpretation of the data.
Whatever they say, is what it is.
Fentress: Right.
Dr. Aviles: Okay. Unless you fail what is called the
reliability testing. Okay. So if for some reason they think
that you’re faking it, then it is unreliable, at that point you
return to work without restrictions. So you have to give
good effort. Okay? I’m sorry it didn’t work for you.
The comments regarding failed surgery were consistent with
a prior medical record from March 2018, in which Dr. Aviles
had opined that “[u]nfortunately it is possible that the surgery
may not have worked for her.” At the hearing, Westin objected
to receipt of exhibit 85 and stated the recordings were surrepti-
tious and made without the permission of Dr. Aviles. Westin
objected on the basis of foundation, hearsay, and late disclo-
sure. The compensation court overruled these objections and
admitted exhibit 85.
- 624 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
The clinic where Fentress had completed physical therapy
conducted an FCE on May 22, 2018, approximately 3 weeks
after the recordings of the consultation with Dr. Aviles. The
FCE was found to be valid, based on Fentress’ consistent per-
formance and acceptable effort, and recommended a 41-pound
lifting restriction. The FCE found that Fentress had a loss of
motion, extension, abduction, adduction, internal rotation, and
external rotation when the left hip is compared to the right hip,
as well as decreased strength of the left hip. Prior to her hip
surgery, Fentress had been working at a position requiring her
to lift up to 50 pounds.
With regard to work restrictions, Westin disputed the restric-
tions recommended by the FCE and put on evidence that
Fentress was released to full-duty work both by Westin’s psy-
chologist and by Dr. Aviles. Dr. Aviles opined that Fentress
was able to return “to work full duty” and that she did not
require “any future medical treatment/medications as a result
of any hip injury.” He wrote, “I normally do not recommend
restrictions after hip arthroscopy. Previous repair has healed.”
Subsequently, Westin’s counsel supplied Dr. Aviles with the
recordings made by Fentress, and Dr. Aviles signed an October
18, 2018, statement that stated Fentress was a “malingerer”
who was “simply exaggerating her disability.”
Westin also submitted evidence that Fentress suffered some
type of fall on June 30, 2018, subsequent to her FCE, which
was documented in medical records. Westin contends that the
fall eliminates its liability for the work-related injury. Fentress
testified that the incident occurred when she was walking in
a park. She testified, “I caught my left foot on — which is
my bad leg, on that cement slab. And I basically stumbled. I
caught myself with that bad leg out of reflex, and it initially
hurt right away. It wasn’t like super alarming, but it continued
to hurt for a week.” On July 6, Fentress was evaluated for her
left hip pain and diagnosed with a left hip strain and referred
to physical therapy, which she attended from July 31 through
September 9. The compensation court noted that there are no
- 625 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
records showing a further examination related to the incident
at the park.
Fentress testified that her left hip pain continually got worse
and that she attempted to return to her pain management phy-
sician for an appointment in September 2018. Westin did not
authorize the visit or medications. Fentress was referred by her
family care physician to a different pain management special-
ist, Dr. Christopher D. Nelson.
Fentress consulted with Dr. Nelson of Des Moines Orthopedic
Surgeons. Westin denied coverage for Dr. Nelson’s care of
Fentress. Dr. Nelson evaluated Fentress and reviewed her
treatment records. Fentress reported that she had muscle pain
localized to the “IT band, groin, hip flexor, quadriceps, bursa,
glute, [sacroiliac joint], and low back,” that she had difficulty
standing for long periods of time, and that she was “depressed,
miserable, and angry” as a result of her pain. Dr. Nelson’s
examination showed a decrease in motion of the left hip.
Dr. Nelson diagnosed intra-articular left hip pain that
was confirmed by a diagnostic injection. After the injection,
Fentress had no groin pain from walking and walked without
a limp. Dr. Nelson opined that Fentress’ “current pain dates
back to her original injury” and that “[i]f we do not seek
alternative treatment options, she would have continued life-
long pain with severe limitations.” Because of the relief after
the pain injection, Dr. Nelson recommended a revision hip
surgery because the injection indicated a clear source of intra-
articular pain.
Following the October 22, 2018, hearing on MMI, the com-
pensation court gave the parties until October 29 to submit
written closing arguments. On October 25, Westin, identifying
itself as “Defendants” filed pleadings entitled “Withdrawal
of Motion to Terminate” and “Withdrawal of Motion to
Determine,” the substance of which had been the subject of
the hearing.
The compensation court ruled that Westin would not be per-
mitted to withdraw the issue of whether Fentress had reached
- 626 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
MMI. In its ruling, the compensation court referred to Neb.
Rev. Stat. § 48-177(2) (Cum. Supp. 2018). The court ordered
the parties to submit briefs. Westin filed a written objection to
the court’s decision disallowing withdrawal of its motions. As
noted, on November 19, 2018, the compensation court held a
hearing on Fentress’ motion for attorney fees.
On January 15, 2019, the compensation court filed an order
in which it made detailed factual findings and awarded tempo-
rary total disability and attorney fees to Fentress. With regard
to injuries to her mental health, the court found Fentress had
reached MMI but needed future medical treatment and medical
care to maintain this level. See Neb. Rev. Stat. § 48-120 (Cum.
Supp. 2018). With regard to the hip injury, the court found
Fentress had not reached MMI and was entitled to future medi-
cal care. See id.
The compensation court explicitly rejected Dr. Aviles’ opin-
ion that Fentress was lying and malingering, because it found
this later opinion contradicted earlier office notes document-
ing failed surgery. In its order, the court noted, “As you can
tell from the statements signed by Dr. Aviles on October 18,
2018[,] he was very unhappy that someone would record con-
versations during an examination.”
The compensation court found that Fentress was still in
pain and that the intra-articular injection Dr. Nelson had given
Fentress gave her relief and had not been previously attempted.
The order found Fentress’ treatment with Dr. Nelson was com-
pensable and ordered Westin to compensate Fentress for con-
tinued future treatment with Dr. Nelson.
Finally, the court ordered Westin to pay Fentress’ attorney
fees in the amount of $2,500 incurred, because Westin failed
to timely make required medical payments. See Neb. Rev. Stat.
§ 48-125 (Cum. Supp. 2018). The order incorporated the “rea-
son for the determination . . . and the amount due [Fentress] for
attorney’s fees [as] dictated to the court reporter at the time of
the hearing on November 19, 2018.”
- 627 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
Westin appeals, and Fentress filed a purported cross-appeal
challenging the accuracy of certain calculations regarding
benefits.
ASSIGNMENTS OF ERROR
On appeal, Westin claims that the compensation court erred
when it (1) denied Westin’s motions to withdraw its previously
filed motions, (2) admitted recordings taken by Fentress of her
consultation with her physician, (3) found Fentress’ treatment
with Dr. Nelson compensable, (4) awarded Fentress temporary
total disability, (5) failed to analyze whether Fentress suffered
an independent intervening event, and (6) failed to specifi-
cally discuss the reasons supporting its award of attorney fees
to Fentress.
[1] Fentress attempts to raise a cross-appeal related to
the calculation of certain temporary benefits and penalties,
but failed to separately assign errors as the basis of her pur-
ported cross-appeal. As a threshold matter, we must determine
what assignments of error were properly raised and argued on
appeal. In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714
(2018). Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014) of our
court rules of appellate practice provides:
Where the brief of appellee presents a cross-appeal, it
shall be noted on the cover of the brief and it shall be set
forth in a separate division of the brief. This division shall
be headed “Brief on Cross-Appeal” and shall be prepared
in the same manner and under the same rules as the brief
of appellant.
[2,3] Thus, the cross-appeal section of an appellate brief
must set forth a separate title page, a table of contents, a state-
ment of the case, assigned errors, propositions of law, and a
statement of the facts. In re Estate of Graham, supra. Although
a subheading in Fentress’ brief states that the compensation
court erred in not ordering payment of underpaid temporary
indemnity benefits and a waiting-time penalty, this is not an
acceptable substitute for a proper assignment of error. See
- 628 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
In re Interest of Samantha L. & Jasmine L., 286 Neb. 778,
839 N.W.2d 265 (2013). When a brief of an appellee fails to
present a proper cross-appeal pursuant to § 2-109, as in this
case, we decline to consider its merits. See In re Estate of
Graham, supra.
STANDARDS OF REVIEW
[4,5] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside by an appellate court
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. Neb.
Rev. Stat. § 48-185 (Cum. Supp. 2018). Determinations by a
trial judge of the Workers’ Compensation Court will not be
disturbed on appeal unless they are contrary to law or depend
on findings of fact which are clearly wrong in light of the evi-
dence. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586,
883 N.W.2d 676 (2016).
[6] The meaning of a statute is a question of law, and an
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law. Id.
[7] Admission of evidence is within the discretion of the
Workers’ Compensation Court, whose determination in this
regard will not be reversed upon appeal absent an abuse of
discretion. Tchikobava v. Albatross Express, 293 Neb. 223, 876
N.W.2d 610 (2016).
[8,9] Whether a worker in a Nebraska workers’ compensa-
tion case is totally disabled is a question of fact. Id. In testing
the sufficiency of the evidence to support the findings of fact
in a workers’ compensation case, 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. Id.
- 629 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
ANALYSIS
Denial of Westin’s Motion to Withdraw
Motion to Determine MMI
Was Not Error.
Central to Westin’s appeal is its contention that it was
improper for the compensation court to rule on a motion after
Westin had attempted to withdraw that motion; Westin specifi-
cally refers to its attempted withdrawal of its previously filed
motion to determine MMI. As noted above, Westin moved
to withdraw its motion to determine MMI following the evi-
dentiary hearing on this very issue. As explained below, we
conclude that Westin’s motion to withdraw was subject to the
ordinary procedure pertaining to motion practice, see Neb.
Rev. Stat. § 48-162.03(1) (Cum. Supp. 2018), and we review
the compensation court’s ruling thereon under the standards of
review recited above. Although our reasoning differs from that
of the compensation court, we find no error with respect to
the compensation court’s ruling which denied Westin’s motion
to withdraw. Accordingly, we find no merit to this assignment
of error.
In its ruling in which it denied Westin’s motion to withdraw
its previously filed motion to determine MMI, the compensa-
tion court relied on § 48-177. Westin contends that § 48-177
is the controlling statute, but maintains that the compensation
court misapplied it.
Section 48-177 is entitled “dismissal.” Section 48-177(1)
refers to the filing of “a petition or motion,” sometimes referred
to as “the cause,” and § 48-177(2) provides that a “cause may
be dismissed . . . (a) by the plaintiff . . . or (b) by the compen-
sation court upon a stipulation.”
Fentress has been denominated “plaintiff” throughout the
years this case has been pending. And because permanency
has not been determined, the matter is not closed or dismissed.
Notwithstanding these facts, the compensation court reasoned
that for purposes of § 48-177, the “defendants” were “‘the
plaintiff’” and their “withdrawal of motion” sought a dismissal.
- 630 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
[10] The compensation court’s strained interpretation of the
words of § 48-177 demonstrates that the statute is not appli-
cable to the motion at issue, which was filed in an ongoing
case. We have viewed § 48-177 as a voluntary dismissal of a
case which “removes the case from the [compensation] court’s
docket.” Knapp v. Village of Beaver City, 273 Neb. 156, 162,
728 N.W.2d 96, 100 (2007). Westin’s motion did not seek dis-
missal, nor did the compensation court’s ruling thereon dismiss
the matter. Given the above, we conclude that § 48-177 does
not control the analysis.
[11] The motions filed by Westin in this case related to a
pending case in which a petition had already been filed by
Fentress. Westin’s motion to determine MMI was encom-
passed by the motion practice under the broad language of
§ 48-162.03(1), which allows any party to a suit or proceeding
to make “any motion” to the compensation court, “includ-
ing, but not limited to, motions for summary judgment or
other motions for judgment on the pleadings but not includ-
ing motions for new trial.” We have stated that this language
“grants the court broad authority to rule on any motion except
motions for new trial and motions for reconsideration.” Cruz-
Morales v. Swift Beef Co., 275 Neb. 407, 413, 746 N.W.2d 698,
703-04 (2008). Withdrawal of a motion under § 48-162.03(1)
would not remove the case from the compensation court’s
docket. Compare Knapp, supra (interpreting § 48-177). Instead
of relying on § 48-177, we believe the ruling denying Westin’s
motion to withdraw its motion to determine MMI is controlled
by reference to § 48-162.03(1).
Because Westin’s motion to withdraw its motion for a deter-
mination of MMI is governed by ordinary motion practice, we
apply the standard of review required by § 48-185. We may
modify, reverse, or set aside such an order only on 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;
- 631 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
or (4) the findings of fact by the compensation court do not
support the order or award. Interiano-Lopez v. Tyson Fresh
Meats, 294 Neb. 586, 883 N.W.2d 676 (2016). In the present
circumstance, we apply the standard of review numbered “(3)”
above; that is, we must determine whether the record is suffi-
cient to warrant the order.
Westin contends that it needed additional time for discovery
after the hearing was held on its motion to determine MMI. The
record shows that despite a prior award in favor of Fentress,
Westin was denying compensability and Fentress would have
been prejudiced by a further delay in receipt of medical and
disability benefits if Westin’s efforts to postpone a ruling on
MMI had been successful. Fentress notes that the issue of MMI
was unresolved by the award which resulted from her initial
petition. Fentress contends that allowing Westin to withdraw
its motion would postpone an inevitable determination of MMI
and require additional court resources and litigation by the par-
ties. We observe that although not controlling, Westin’s motion
to withdraw its motion to determine MMI after the evidentiary
hearing on MMI would tend to defeat the prohibition against
motions for new trials. See § 48-162.03(1). We find sufficient
evidence in the record to support the compensation court’s
order which denied Westin’s request to withdraw its motion to
determine MMI.
Admission of Audio Recording
Was Not Error.
Westin claims that the compensation court erred when it
admitted exhibit 85, a recording of the consultation Fentress
had with her orthopedic doctor, Dr. Aviles, on May 2, 2018.
Westin contends that this recording is not the best evidence of
Dr. Aviles’ opinions and that allowing “surreptitious” record-
ings of health care providers can have a chilling effect on phy-
sicians treating workers’ compensation patients, because “[i]t is
probably safe to assume most physicians don’t appreciate being
secretly recorded . . . .” Brief for appellants at 15.
- 632 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
[12] The Workers’ Compensation Court is not bound by
the usual common-law or statutory rules of evidence. Neb.
Rev. Stat. § 48-168 (Reissue 2010); Bower v. Eaton Corp.,
301 Neb. 311, 918 N.W.2d 249 (2018). Given the beneficent
purposes of workers’ compensation law, a compensation court
can admit evidence in order to investigate cases in the manner
it judges is best calculated to ascertain the substantial rights
of the parties and to carry out justly the spirit of the Nebraska
Workers’ Compensation Act. See Bower, supra. As noted
above, we review the admission of evidence by the Workers’
Compensation Court for abuse of discretion. See Tchikobava
v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016).
And, as related to the current appeal, we recognize that we
have long approved the admission of surveillance videotapes in
workers’ compensation cases. Brock v. Dunning, 288 Neb. 909,
854 N.W.2d 275 (2014). See, e.g., Harpham v. General Cas.
Co., 232 Neb. 568, 441 N.W.2d 600 (1989).
Here, Fentress laid foundation for exhibit 85 by testifying
in her deposition and at trial that she took her cell phone to
the appointments with Dr. Aviles and recorded their exchange,
because she did not want to forget the content of the visit.
Fentress explained that she sometimes could not remember
physicians’ instructions, so she used her cell phone to record
these conversations and make it easier to remember and, in
addition, because of a prior substance abuse issue, to share
with her sponsor. Fentress stated that she set her cell phone
on a desk, in the open. Westin and Dr. Aviles were able to
review these recordings, and thus, Westin had the opportunity
to respond to Fentress’ recording and place responsive contrary
evidence before the court. In fact, Westin’s evidence, including
the October 18, 2018, statement of Dr. Aviles, referred to the
recording in exhibit 85. Thus, exhibit 85 served to establish a
foundation for subsequent exhibits. Admission of exhibit 85
was not an abuse of discretion.
- 633 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
Compensability of Dr. Nelson’s
Fees Was Not Error.
Westin claims the compensation court erred when it ordered
Westin to pay for past and future medical visits with Dr.
Nelson, an orthopedic specialist not selected by the employer
or referred by a physician initially designated under the
Nebraska Workers’ Compensation Court rules of procedure.
See Workers’ Comp. Ct. R. of Proc. 50(A)(6) (2018). Westin
contends that this aspect of the order was an impermis-
sible rule 50 physician change and not compensable. We do
not agree.
[13] Under § 48-120(2)(e) and rule 50(A)(6), an employee
must generally follow a chain of referral and provide notice
to the employer before changing primary treating physicians.
However, if an employer denies compensability for an injury,
the employee can avoid the chain of referral and has a right
pursuant to § 48-120(2)(a) and rule 50(A)(6) to select his or
her own physicians for treatment and later seek compensation.
In Clark v. Alegent Health Neb., 285 Neb. 60, 68, 825 N.W.2d
195, 202 (2013), we considered the consequences of denial of
compensability and stated:
Larson’s Workers’ Compensation Law discusses the
circumstances which effectuate an employer’s “denial
of compensation” under statutory workers’ compensation
provisions similar to those of Nebraska: “The central rule
defining the circumstances under which a claimant may
on his or her own initiative incur compensable medical
expense may be put as follows: If the employer has suf-
ficient knowledge of the injury to be aware that medical
treatment is necessary, it has the affirmative and continu-
ing duty to supply medical treatment that is prompt, in
compliance with the statutory prescription on choice of
doctors, and adequate; if the employer fails to do so, the
claimant may make suitable independent arrangements at
the employer’s expense.”
- 634 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
Although Fentress had a prior award finding she had com-
pensable injuries and was entitled to reasonable and necessary
future medical care, Westin discontinued additional medical
care in 2018. Fentress testified that she attempted to return
to a previously authorized treating physician’s office for an
appointment in September 2018, but Westin did not authorize
the visit. There was evidence in the record that Westin had
denied compensability to physicians within the rule 50(A)(6)
chain of referral, and thus Fentress could seek potentially com-
pensable treatment with a physician of her choosing. This sub-
sequent treatment was, as we discuss below, properly deemed
compensable by the compensation court, and therefore, Westin
was duly found liable for Dr. Nelson’s medical treatment of
Fentress. The compensation court’s order permitting Fentress
to continue treatment with Dr. Nelson was not in error.
Award of Temporary Total
Disability Was Not Error.
Westin claims that the compensation court erred when it
found Fentress was totally disabled and awarded Fentress tem-
porary total disability benefits. 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 dis-
turbed unless clearly wrong. Krause v. Five Star Quality Care,
301 Neb. 612, 919 N.W.2d 514 (2018). Because we determine
that the findings of the compensation court were not clearly
wrong, we reject this assignment of error.
Westin contends that the record lacks adequate evidence
of work restrictions. However, we find support in the record
for the compensation court’s determination pertaining to work
restrictions, including the valid FCE performed by a medi-
cal clinic on May 22, 2018, to which the compensation court
referred in its order. The FCE showed Fentress had the ability
to work in the medium physical demand level but with specific
restrictions. Fentress testified that her condition had worsened
in the time between the FCE and the hearing. Additionally,
- 635 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
Dr. Nelson had recommended that Fentress have further pain
injections and surgery and that Fentress use a cane to assist her
when walking to minimize limping and prevent the develop-
ment of other issues. We are aware that Westin presented the
contrary opinion of Dr. Aviles, who stated that Fentress could
work full duty without restrictions. The compensation court
specifically disregarded this opinion.
Where the record presents nothing more than conflicting
medical testimony, this court will not substitute its judgment
for that of the Workers’ Compensation Court. Hintz v. Farmers
Co-op Assn., 297 Neb. 903, 902 N.W.2d 131 (2017). Viewed in
the light most favorable to Fentress, the compensation court’s
factual determination that Fentress was temporarily totally
disabled under § 48-185 is supported by the record and not
clearly wrong.
Independent Intervening Event Did
Not Relieve Westin of Liability.
Westin claims that the compensation court reversibly erred
when it failed to find that Fentress suffered an independent
intervening event that relieved Westin from further liability.
The compensation court’s factual findings on causation implic-
itly disagree with this contention, and we reject this assignment
of error.
[14-16] In workers’ compensation cases, an independent
intervening cause, as the proximate cause of an injury, is,
generally, a matter of defense and, as such, must be proved by
the party asserting that defense. Kerkman v. Weidner Williams
Roofing Co., 250 Neb. 70, 547 N.W.2d 152 (1996); Mendoza
v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280
(1987). The mere possibility of an independent intervening
cause does not relieve an employer from liability for an
employee’s otherwise compensable claim for workers’ compen-
sation and benefits. Id. A defendant asserting a break in causa-
tion by an independent intervening cause must prove the break
in causation by competent medical testimony if the claimed
- 636 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
injuries are of such a character that scientific testimony is
required to prove their validity. See Mendoza, supra.
Although an incident was documented in Fentress’ medical
reports to the effect that Fentress “tripped . . . but did not fall
all the way,” Westin did not produce expert opinions showing
permanent damage caused by Fentress’ June 30, 2018, stumble
in the park. The compensation court order noted treatment
given on July 6, discussing the new pain from Fentress’ stum-
ble, and elsewhere, the compensation court found that “[t]here
are no records submitted showing a further examination related
to the fall at the park.” Fentress testified that the pain from the
stumble was of a different nature and “continued to hurt for
a week.”
By virtue of its findings, the compensation court implicitly
found against Westin on its defense that Fentress suffered an
independent intervening cause, when it noted the lack of evi-
dence related thereto and expressly agreed with opinions of
Dr. Nelson regarding causation and the necessity of continu-
ing medical treatment occasioned by the work-related injury.
We cannot say that the compensation court’s order authorizing
temporary total disability benefits was error.
Award of $2,500 Attorney Fees
to Fentress Was Not Error.
Westin argues that the award of attorney fees to Fentress in
the requested amount of $2,500 was unreasonable because the
compensation court did not detail how it arrived at that figure.
We find no merit to this assignment of error.
The compensation court found that Westin failed to promptly
pay certain medical payments ordered by the court within 30
days and that Westin became liable for attorney fees under
§ 48-125(4)(a). Westin’s claim of error is with regard to the
amount of the fees.
[17] A determination of an award of attorney fees under
§ 48-125 must be calculated on a case-by-case basis. Simmons
v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (2014).
- 637 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
FENTRESS v. WESTIN, INC.
Cite as 304 Neb. 619
Determining the amount for the fees is necessarily a question
of fact that requires a factual determination on several fac-
tors. Id.
The record shows that Fentress presented evidence of her
counsel’s efforts to seek payment of the past-due bills, includ-
ing at least five requests to Westin and counsel’s participation
in motion practice and a hearing. At the hearing on attorney
fees, the compensation court stated that “if [the attorney]
wants $2,500, I really don’t see why she doesn’t get the 2,500
because of the detail that they give me. I mean, this is unbe-
lievable detail that we receive from this office regularly.” We
give deference to the factual findings of the compensation
court. Id. Although it would be the better practice for the
written order to recite the factors on which it relied, given its
recitals at the attorney fees hearing in this case, we find that
the compensation court did not err when it awarded the full
amount of attorney fees requested by Fentress.
CONCLUSION
For the reasons recited above, the compensation court did
not err when it denied Westin’s motion to withdraw its pre-
viously filed motion to determine MMI after the hearing on
MMI; admitted Fentress’ recording of the consultation with a
physician; and awarded Fentress medical treatment, temporary
total disability, and attorney fees. Accordingly, we affirm.
Affirmed.