Moyers v. International Paper Co. , 25 Neb. Ct. App. 282 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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MOYERS v. INTERNATIONAL PAPER CO.
Cite as 25 Neb. Ct. App. 282
Morton Moyers, appellee, v. International
Paper Company and One R epublic
Insurance Company, appellants.
___ N.W.2d ___
Filed November 21, 2017. No. A-17-008.
1. 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.
2. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2016), 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 compensa-
tion court do not support the order or award.
3. ____: ____. 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.
4. Workers’ Compensation: Evidence: Appeal and Error. When testing
the sufficiency of the evidence to support findings of fact made by the
Workers’ Compensation Court trial judge, the evidence must be consid-
ered in the light most favorable to the successful party and the success-
ful party will have the benefit of every inference reasonably deducible
from the evidence.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
6. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), an appellate court may review three types of final
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orders: (1) an order that affects a substantial right and that determines
the action and prevents a judgment, (2) an order that affects a substantial
right made during a special proceeding, and (3) an order that affects a
substantial right made on summary application in an action after a judg-
ment is rendered.
7. Workers’ Compensation: Appeal and Error. A party can appeal an
order from the Workers’ Compensation Court if it affects the party’s
substantial right.
8. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902
(Reissue 2016) include those legal rights that a party is entitled to
enforce or defend.
9. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to an appellant before the order from
which an appeal is taken.
10. ____: ____. When multiple issues are presented to a trial court for
simultaneous disposition in the same proceeding and the court decides
some of the issues, while reserving other issues for later determination,
the court’s determination of fewer than all the issues is an interlocutory
order and is not a final order for the purpose of an appeal.
11. Workers’ Compensation: Judgments: Final Orders. A Workers’
Compensation Court’s finding of a compensable injury or its rejec-
tion of an affirmative defense without a determination of benefits is
not an order that affects an employer’s substantial right in a special
proceeding.
12. 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.
13. Workers’ Compensation: Rules of Evidence: Appeal and Error. The
Workers’ Compensation Court is not bound by the usual common-law
or statutory rules of evidence; it has discretion to admit evidence, and
its decision to admit or exclude evidence will not be reversed on appeal
absent an abuse of discretion.
14. Workers’ Compensation: Words and Phrases. Under the Nebraska
Workers’ Compensation Act, an occupational disease means only a dis-
ease which is due to causes and conditions which are characteristic of
and peculiar to a particular trade, occupation, process, or employment
and excludes all ordinary diseases of life to which the general public
is exposed.
15. Workers’ Compensation: Time. Under the Nebraska Workers’
Compensation Act, an injury has occurred as the result of an occupa-
tional disease when violence has been done to the physical structure of
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the body and a disability has resulted. In other words, an occupational
disease has caused an “injury” within the meaning of the act, at the point
it has resulted in disability.
16. Workers’ Compensation. A workers’ compensation claimant may
recover when an injury, arising out of and in the course of employment,
combines with a preexisting condition to produce disability, notwith-
standing that in the absence of the preexisting condition no disability
would have resulted.
17. ____. As the trier of fact, the Workers’ Compensation Court is the sole
judge of the credibility of the witnesses and the weight to be given
their testimony.
18. Workers’ Compensation: Appeal and Error. Where the record pre­
sents nothing more than conflicting medical testimony, an appel-
late court will not substitute its judgment for that of the Workers’
Compensation Court.
19. Workers’ Compensation. Whether a plaintiff in a Nebraska workers’
compensation case is totally disabled is a question of fact.
20. ____. Total disability exists when an injured employee is unable to earn
wages in either the same or a similar kind of work he or she was trained
or accustomed to perform or in any other kind of work which a person
of the employee’s mentality and attainments could perform.
21. Workers’ Compensation: Expert Witnesses. Although medical restric-
tions or impairment ratings are relevant to a claimant’s disability, the
trial judge is not limited to expert testimony to determine the degree of
disability but instead may rely on the testimony of the claimant.
Appeal from the Workers’ Compensation Court: Julie A.
M artin, Judge. Affirmed.
Timothy E. Clarke and Thomas B. Shires, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellants.
Terry M. Anderson and David M. O’Neill, of Hauptman,
O’Brien, Wolf & Lathrop, P.C., for appellee.
Inbody, Pirtle, and R iedmann, Judges.
Pirtle, Judge.
I. INTRODUCTION
International Paper Company and One Republic Insurance
Company (collectively IPC) appeal the decision of the Nebraska
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Workers’ Compensation Court in which Morton Moyers was
found to be permanently and totally disabled as a result of an
occupational disease. The court found Moyers was entitled to
weekly permanent disability benefits from and after the date
he stopped working, September 20, 2014, except during those
periods in which he was entitled to receive temporary total dis-
ability benefits. For the reasons that follow, we affirm.
II. PROCEDURAL BACKGROUND
On February 13, 2015, Moyers filed a petition alleging that
he had sustained a personal injury to his respiratory system
and lungs arising out of and in the scope and course of his
employment with International Paper Company. He alleged the
“incident and injury” occurred over the course of his 42 years
of employment as he was “continually exposed to paper dust
in his work environment which has caused chronic lung and
respiratory condition.” He alleged that he provided notice of
the accident and injury on or about August 27, 2014, and that
IPC had failed or refused to pay workers’ compensation ben-
efits to him.
IPC generally denied Moyers’ allegations and affirmatively
alleged that his condition was caused by an inherent condition
and that any disability was the result of an independent inter-
vening cause. IPC alleged that Moyers failed to timely file his
cause of action and that he failed to give timely notice of his
injury as soon as practicable.
On April 14, 2016, this matter was heard before the Nebraska
Workers’ Compensation Court. An award was issued on July
22, in which the court found Moyers sustained his burden to
prove that he sustained an occupational disease arising out of
his employment. The court found that Moyers became tem-
porarily totally disabled on September 20, 2014, the date he
stopped working at International Paper Company, and that he
reached maximum medical improvement on June 29, 2015.
The court found that Moyers was entitled to vocational
rehabilitation services and stated that “[a]fter vocational reha-
bilitation services have been provided to [Moyers] as a result
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of the injuries incurred on September 20, 2014, a further hear-
ing may be had on the extent of [his] permanent partial dis-
ability measured as a loss of earning power.” The court found
Moyers was entitled to certain medical expenses, but denied
Moyers’ requests for future medical expenses, waiting-time
penalties, attorney fees, and interest.
Moyers’ motion for a determination of loss of earning capac-
ity was filed on October 11, 2016. The vocational consultant,
Ted Stricklett, provided his opinion that Moyers was unable to
participate in a vocational rehabilitation plan due to his ongo-
ing breathing issues and that he was not a viable candidate in
the open labor market. IPC filed a motion to quash Moyers’
motion and a motion to compel vocational rehabilitation. The
motions were heard on November 9, and an order was filed on
December 2. The court found Moyers sustained a 100-­percent
loss of earning capacity and was “so handicapped that he
[would] not be employed regularly in any well-known branch
of the labor market.” The court found Moyers suffered perma-
nent total disability as a result of his occupational disease and
found Moyers was entitled to the sum of $552.87 per week
from and after the date of his injury except during those peri-
ods of time in which he was entitled to receive temporary total
disability benefits.
III. FACTUAL BACKGROUND
After Moyers graduated from high school in 1972, he began
working for Weyerhaeuser, which was subsequently bought
by International Paper Company, as a “sheet catcher.” He
became a “checker” in 1974 and was responsible for placing
the “scores and knives” in the machines. He left the company
for a short period from September 1975 to May 1976 before
returning to Weyerhaeuser.
He worked for Weyerhaeuser from 1976 into the 2000’s,
when Weyerhaeuser was purchased by International Paper
Company. He worked from 2008 to 2009 as a baler and became
an assistant checker in 2009. Moyers’ last day of work for
International Paper Company was September 19, 2014.
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Moyers first sought treatment at an emergency room for a
respiratory condition in 1997. He reported a 2-month history of
cough, a shortness of breath with exertion, and a 2-year history
of nasal congestion. He had been treated for seasonal allergies
and was taking prednisone and other medications for treatment
of allergies and asthma.
Moyers sought treatment in May 2000 for allergic rhini-
tis. Moyers reported that the use of nasal spray, seasonally,
relieved his symptoms. He sought medical treatment regularly
from 2002 to 2006 for various respiratory, sinus, and bronchial
complaints. He was treated for pneumonia in 2005.
Moyers treated with Dr. Thomas Nilsson at an allergy and
asthma clinic from 2008 to 2011. In March 2010, Moyers
saw Nilsson for shortness of breath and chest tightness which
occurred even though he was using an inhaler. He expressed
concerns of possible mold in his workplace and wondered if
exposure to conditions in his workplace aggravated his breath-
ing. Nilsson stated that Moyers’ mold allergies were probably
not related to any of the symptoms he had. In 2011, Nilsson
noted Moyers had a history of asthma, allergic rhinitis, and
chronic anxiety.
Moyers began treating with a pulmonologist, Dr. George
Thommi, in 2013 and reported having breathing problems
since 1997. He reported recurrent bouts of allergy symptoms
and bronchitis that were usually worse in the spring and fall.
Pulmonary function tests showed “moderate obstructive lung
disease and normal diffusion.”
In June 2014, Moyers reported shortness of breath, wheez-
ing, and “coughing up brown sputum.” In July 2014, Moyers
reported that he worked in a cardboard factory and that the
temperatures in the building sometimes reached 140 degrees.
Thommi noted that Moyers was exposed to “high temperatures
and dust fumes at work” and opined that Moyers’ “work envi-
ronment would aggravate his underlying pulmonary disease
with recurrence of [his] bronchitis/pneumonia.” In August
2014, Thommi noted that Moyers improved significantly and
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was breathing very well after 2 weeks off of work, but his con-
dition deteriorated after returning to the job. Moyers reported
that after his return to work, his symptoms worsened to the
point that he thought he needed to go to the emergency room.
Thommi “recommended strongly that he not go to work in that
current environment” and stated that “[c]ontinued exposure
to this environment will cause end-stage respiratory failure.”
Moyers did not return to work after September 19, 2014.
In January 2015, Moyers continued to report shortness of
breath, wheezing, cold symptoms, cough, shakiness, and fatigue.
In a functional assessment dated April 8, 2015, Thommi diag-
nosed Moyers with asthma, occupational lung disease recur-
rent, chronic upper respiratory infection, and bronchitis. In the
workers’ compensation medical report prepared by Thommi, he
diagnosed Moyers with obstructive lung disease/asthma, noc-
turnal hypoxemia, occupational lung disease, and hypersomnia
and stated that Moyers’ condition was “caused, significantly
contributed to, or aggravated by an accident or injury arising
out of or in the scope of [his] employment.”
On September 29, 2015, Moyers was examined by Dr.
D.M. Gammel, at IPC’s request, and Gammel also reviewed
Moyers’ medical records. Gammel diagnosed Moyers with
progressive obstructive lung disease/asthma, anxiety, depres-
sion, and sleep apnea syndrome. Gammel stated his opinion
that Moyers’ diagnoses were related to preexisting health con-
ditions. Gammel stated that there was no objective evidence to
suggest the workplace environment was the cause of Moyers’
current condition or no objective evidence of an allergy to any
irritant, chemical, or mold in his workplace. Gammel stated
that the “dust may cause a respiratory irritant to temporarily
exacerbate the pre-existing respiratory condition but not be
the cause of the condition.” Gammel stated, “Although there
is evidence that wood dust exposure can cause respiratory
effects to include hypersensitivity pneumonitis and occupa-
tional asthma, there are other exposures that . . . Moyers had
that can cause the conditions as well . . . .”
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IV. ASSIGNMENTS OF ERROR
IPC asserts the court erred in admitting and excluding cer-
tain exhibits, determining Moyers’ injury was an occupational
disease rather than a repetitive trauma accident, finding Moyers
met the burden of proving that he suffered an occupational dis-
ease, overruling IPC’s motion to quash and motion to compel
vocational rehabilitation, and finding Moyers to be perma-
nently and totally disabled.
V. STANDARD OF REVIEW
[1] 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).
[2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
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 judg-
ment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the mak-
ing of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d
905 (2017).
[3] 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. Id.
[4] When testing the sufficiency of the evidence to support
findings of fact made by the Workers’ Compensation Court
trial judge, the evidence must be considered in the light most
favorable to the successful party and the successful party will
have the benefit of every inference reasonably deducible from
the evidence. Nichols v. Fairway Bldg. Prods., 294 Neb. 657,
884 N.W.2d 124 (2016).
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VI. ANALYSIS
1. Jurisdiction
[5] For an appellate court to acquire jurisdiction of an
appeal, the party must be appealing from a final order or a
judgment. Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d
377 (2013). Moyers asserts that the July 22, 2016, award was
a final order and that IPC failed to appeal the order within 30
days of the judgment. Thus, he argues, this court is without
jurisdiction to consider any of the issues adjudicated in the
July 22 order. IPC asserts the July 22 order was an interlocu-
tory order, as it “left open” the question of Moyers’ entitlement
to permanent disability benefits, to be determined after he
underwent vocational rehabilitation services. Brief for appel-
lant at 22.
[6-9] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), an
appellate court may review three types of final orders: (1)
an order that affects a substantial right and that determines
the action and prevents a judgment, (2) an order that affects
a substantial right made during a special proceeding, and (3)
an order that affects a substantial right made on summary
application in an action after a judgment is rendered. Jacobitz
v. Aurora Co-op, supra. A party can appeal an order from the
Workers’ Compensation Court if it affects the party’s sub-
stantial right. Id. Substantial rights under § 25-1902 include
those legal rights that a party is entitled to enforce or defend.
Jacobitz v. Aurora Co-op, supra. A substantial right is affected
if an order affects the subject matter of the litigation, such as
diminishing a claim or defense that was available to an appel-
lant before the order from which an appeal is taken. Id.
[10] The Nebraska Supreme Court has held, even in workers’
compensation cases, that when multiple issues are presented to
a trial court for simultaneous disposition in the same proceed-
ing and the court decides some of the issues, while reserving
other issues for later determination, the court’s determination
of fewer than all the issues is an interlocutory order and is not
a final order for the purpose of an appeal. Id. In cases where
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the employer’s defense is that the claimant failed to prove a
work-related injury, the Nebraska Supreme Court has held that
an appeal is interlocutory when the trial court has reserved
issues for later determination. See id.
[11] In Jacobitz v. Aurora Co-op, supra, the court found that
the employer did not appeal from a final order because the trial
court determined only that the claimant’s accident occurred in
the scope of his employment, but had not yet determined ben-
efits. The Nebraska Supreme Court specifically stated, “From
the date of this decision, a Workers’ Compensation Court’s
finding of a compensable injury or its rejection of an affirm­
ative defense without a determination of benefits is not an
order that affects an employer’s substantial right in a special
proceeding.” Id. at 104, 841 N.W.2d at 383.
In light of the Jacobitz v. Aurora Co-op opinion, we find
the July 22, 2016, award regarding Moyers was not a final
determination of benefits, as the court reserved the issue of
“permanent partial disability [benefits] measured as a loss
of earning power” until after vocational services had been
provided. In the December 2, 2016, order, the court found
Moyers was permanently and totally disabled and was entitled
to benefits. At that point, there were no further issues to be
adjudicated. We find IPC timely appealed from a final order,
and this court has jurisdiction to address IPC’s assignments of
error on appeal.
2. A dmission of Evidence
(a) Exhibits 2 through 4 and 6
At the April 14, 2016, hearing, Moyers offered exhibits 1
through 14. IPC objected to several exhibits on the basis of
foundation, hearsay, and relevance, arguing there is insuffi-
cient evidence relied upon by the treating physicians to render
the opinions they did. The court overruled IPC’s objections
in the July 22 award without providing explicit reasoning for
the rulings. On appeal, IPC asserts the court erred in receiv-
ing exhibits 2 through 4 and 6. Exhibit 2 contains the records
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and notes from Moyers’ medical visits with Thommi. Exhibit
3 is the workers’ compensation medical report prepared by
Thommi. Exhibit 4 is the functional assessment form pre-
pared by Thommi, and exhibit 6 contains additional notes
from Thommi’s office from a visit with Moyers in 2014.
Each of the exhibits are personally or electronically signed
by Thommi.
IPC asserts Thommi’s opinion “lacks foundation,” as he does
not provide a factual basis for his opinion. Brief for appellant
at 37. IPC argues that Thommi refers to Moyers’ exposure to
“high temperatures and dust fumes at work” in the “Impression
and Plan” section of the report, even though Moyers alleged
that he was exposed to paper dust and not dust fumes. IPC
also argues that Thommi did not provide an opinion regard-
ing the causal relationship between Moyers’ condition and his
exposure to paper dust or dust fumes and that, rather, Thommi
focused his recommendations on the role of “heat in [Moyers’]
work environment.” Id.
Workers’ Comp. Ct. R. of Proc. 10(A) (2011) provides:
The Nebraska Workers’ Compensation Court is not bound
by the usual common law or statutory rules of evidence;
and accordingly, with respect to medical evidence on
hearings before a judge of said court, written reports by
a physician or surgeon duly signed by him, her or them
and itemized bills may, at the discretion of the court, be
received in evidence in lieu of or in addition to the per-
sonal testimony of such physician or surgeon . . . .
See, also, Neb. Rev. Stat. § 48-168(1) (Reissue 2010).
[12] Subject to the limits of constitutional due process, the
Legislature has granted the compensation court the power to
prescribe its own rules of evidence and related procedure.
Contreras v. T.O. Haas, 22 Neb. Ct. App. 276, 852 N.W.2d 339
(2014). See, also, Roness v. Wal-Mart Stores, 21 Neb. Ct. App.
211, 837 N.W.2d 118 (2013). Admission of evidence is within
the discretion of the Workers’ Compensation Court, whose
determination in this regard will not be reversed upon appeal
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absent an abuse of discretion. Hynes v. Good Samaritan Hosp.,
291 Neb. 757, 869 N.W.2d 78 (2015).
In this case, each of the challenged exhibits contain written
reports, signed by Moyers’ physician, Thommi. These exhibits
were received at the discretion of the Workers’ Compensation
Court in lieu of Thommi’s personal testimony. Although IPC
may disagree with Thommi’s substantive findings, the records
are a representation of Moyers’ medical history and treatment
which is relevant to this case. We cannot find the court erred
in receiving exhibits 2 through 4 and 6 over IPC’s objections.
(b) Exhibit 32
IPC asserts the district court erred in sustaining Moyers’
objection to exhibit 32 and in not allowing it to be admitted
for rebuttal purposes.
Prior to the start of trial, IPC made an oral motion for a
continuance of the trial or, in the alternative, to allow exhibit
32 to be received into evidence. Exhibit 32 is an “Industrial
Hygiene Exposure Assessment” dated October 24, 2008, pur-
portedly for the facility where Moyers was employed. Counsel
for IPC stated the report was received 1 week prior to trial, but
after the deadline set by the court for disclosure of exhibits.
Additional time was requested so the report could be reviewed
and its findings analyzed. Moyers objected, stating that the
case had been on file since February 2015 and IPC was on
notice the case involved respiratory lung disease, that ample
discovery had been conducted by the parties, and that Moyers
had not worked since 2014 and would be prejudiced by another
delay in the trial.
The court did not find good cause was shown as to why
IPC should be entitled to a continuance. The court did not find
adequate justification for IPC to not have obtained air quality
testing reports of its facility until the eve of trial, given the
length of time the case had been on file, especially for a report
that was approximately 7 years old. The court overruled IPC’s
motion to continue.
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Moyers objected to IPC’s offer of exhibit 32 on the basis
of hearsay, foundation, and relevance, and he argued that the
exhibit was prejudicial as it was not timely disclosed pursu-
ant to the court’s pretrial orders. The objection was sustained.
Offers of proof were made as to exhibit 32 on two occasions,
and the exhibit was received for only that limited purpose.
IPC recognizes that the contents of exhibit 32 were dis-
closed after the discovery deadline and does not argue that the
court erred by not admitting the exhibit as substantive factual
evidence. Rather, IPC argues that the court erred by sustaining
Moyers’ objection to the exhibit as rebuttal evidence which
could have been used to impeach him.
After each offer of proof, the court ruled that exhibit 32
should be excluded from evidence. The court reasoned that
it was “very clear early on in the case that this was about a
respiratory issue” and that air quality testing had been done by
International Paper Company since 2005. When the case was
filed in 2015, the parties were on notice of the issues involved,
and pretrial orders stated that discovery was to be completed
7 days before trial. Because exhibit 32 was not disclosed to
Moyers within the timeframe set by the court, it was excluded
for all purposes, including rebuttal.
[13] As previously discussed, the Workers’ Compensation
Court is not bound by the usual common-law or statutory
rules of evidence; it has discretion to admit evidence, and its
decision to admit or exclude evidence will not be reversed on
appeal absent an abuse of discretion. Jurgens v. Irwin Indus.
Tool Co., 20 Neb. Ct. App. 488, 825 N.W.2d 820 (2013). Upon
our review, we cannot find the court abused its discretion in
excluding exhibit 32 for rebuttal purposes.
3. Occupational Disease or
R epetitive Trauma
In his petition, Moyers alleged that he sustained injury as a
result of an “incident and injury” that “occurred over the course
of his 42 years of continuous employment” with International
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Paper Company. He asserted that being “continually exposed
to paper dust in his work environment . . . caused a chronic
lung and respiratory condition.” The July 22, 2016, award
contains the court’s conclusion that Moyers established, by a
preponderance of the evidence, that he sustained an “aggrava-
tion to a pre-existing condition through his long-term exposure
to paper dust/airborne contaminants arising out of and in the
course of his employment with [IPC] resulting in an occupa-
tional disease.”
IPC asserts the court erred in analyzing Moyers’ injury as an
occupational disease rather than a repetitive trauma accident.
[14] Neb. Rev. Stat. § 48-101 (Reissue 2010) provides:
When personal injury is caused to an employee by
accident or occupational disease, arising out of and in the
course of his or her employment, such employee shall
receive compensation therefor from his or her employer
if the employee was not willfully negligent at the time of
receiving such injury.
Occupational disease is defined to mean “only a disease which
is due to causes and conditions which are characteristic of
and peculiar to a particular trade, occupation, process, or
employment and excludes all ordinary diseases of life to which
the general public is exposed.” Neb. Rev. Stat. § 48-151(3)
(Reissue 2010). Occupational disease cases typically show a
“‘“long history of exposure without actual disability, culmi-
nating in the enforced cessation of work on a definite date.”
. . .’” Ludwick v. Triwest Healthcare Alliance, 267 Neb. 887,
896, 678 N.W.2d 517, 524 (2004). Here, the court found the
“continuous exposure to paper dust” was peculiar to Moyers’
work and was not something the general public would have
been exposed to.
IPC argues that “[Moyers’] exposure to dust was neither
characteristic of nor peculiar to his employment,” so it can-
not be said that he suffered an occupational disease. Brief for
appellant at 25. IPC also argues that “[t]here is no evidence
in the record supporting a finding that [Moyers] was exposed
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to ‘paper dust’ during the course of his employment.” Id. IPC
appears to draw a distinction between “dust” and “paper dust”
in Moyers’ testimony where there does not appear to be any
difference. Moyers uses both terms interchangeably.
Moyers testified that he was exposed to paper dust through-
out his employment at Weyerhaeuser, which was subsequently
bought by International Paper Company. He testified that one
task that he regularly performed was to use a hose to blow
paper dust off of the machines, which then sent the dust into
the air. He specifically stated that in “[c]ertain departments
of the machine there would be — you would have to do the
starch and take all the starch off the machine, grease, just a
lot of paper dust mostly . . . .” He stated that after the dust
was blown off of the machines, it was swept up and depos-
ited into 55-gallon drums. He testified that when cardboard
boxes are being cut, it creates dust, and that vacuum bags
were attached to the machines to catch the dust created by
the machines. He testified that there were periods of days,
months, or even years when the vacuum bags were removed
to make the machines more productive. When the machines
were operated without the bags, the dust was released into
the air. In his deposition, Moyers stated that at times, an indi-
vidual in his work environment could “[h]old [their] hand out
and watch the paper dust fall on [their] hand.” Moyers gener-
ally did not wear a mask during his shift, except when he was
cleaning, because the facility was hot and the mask made it
difficult to breathe.
An employee of International Paper Company testified that
he worked there for 12 years and has been a supervisor for
10 years. For the 5 or 6 years prior to trial, he was in control
of the vacuum bags. He made sure that the bags were on the
machines for those years “for dust purposes.” He testified
that from the time he began working at International Paper
Company to the time he was placed in control of the vacuum
bags, the bags were off of the vacuums at times for “production
purposes, getting the machines to run better.” He testified that
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he was not sure if the bags were on the machines 100 percent
of the time when he was not in control of their use. He stated
that the bags are there to catch the dust and that if they are not
in place, the dust “goes on the floor.”
IPC argues Moyers’ claims should have been analyzed in
the context of a repetitive trauma, rather than an occupational
disease. IPC refers to Risor v. Nebraska Boiler, 277 Neb. 679,
765 N.W.2d 170 (2009), in which the Nebraska Supreme Court
determined that noise exposure is caused by repetitive external
trauma, produced in the work environment. The court found
that noise-related hearing loss is not properly classified as an
occupational disease because exposure to loud noises does not
create a hazard that distinguished the plaintiff’s exposure from
a myriad of other occupations. In Risor v. Nebraska Boiler, the
court found that occupational hearing loss does not result from
exposure to a “workplace substance.” 277 Neb. at 695, 765
N.W.2d at 185.
The Supreme Court has declined to analyze repetitive trauma
cases in the context of occupational disease. In reaching its
decision in Risor v. Nebraska Boiler, the Nebraska Supreme
Court compared the plaintiff’s condition to a “substance expo-
sure” case, in which the Nebraska Supreme Court found the
plaintiff’s employment exposed him to unusual amounts of
wheat dust, which the court found to be peculiar to and char-
acteristic of grain elevator operations. 277 Neb. at 689, 765
N.W.2d at 181. See Riggs v. Gooch Milling & Elevator Co.,
173 Neb. 70, 112 N.W.2d 531 (1961). The Supreme Court
has considered exposure to other workplace substances that
resulted in occupational diseases, including exposure to latex,
silica, asbestos particles, dishwashing detergents, and cleansing
chemicals. Risor v. Nebraska Boiler, supra.
In this case, the Workers’ Compensation Court likened
Moyers’ condition to that of the plaintiff in Riggs v. Gooch
Milling & Elevator Co., supra, in determining that Moyers
had suffered an occupational disease. Upon our review, we
find this case is most similar to Riggs v. Gooch Milling &
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Elevator Co., as there is evidence that Moyers was exposed
to a workplace substance, namely an unusual amount of paper
dust which would be peculiar to and characteristic of paper
or cardboard manufacturing operations. Upon our review, we
cannot find the court erred in analyzing Moyers’ condition
as a potential occupational disease, rather than a repetitive
trauma accident.
4. Burden of Proving
Occupational Disease
As previously discussed, the court found that Moyers’
injury was an occupational disease and that he submitted suf-
ficient proof that his underlying condition was aggravated by
his work at International Paper Company. IPC asserts the court
erred in finding Moyers met the burden of proving that his
exposure to “‘paper dust’” in his work environment caused
his respiratory and lung condition or aggravated his preexist-
ing respiratory or lung conditions. Brief for appellant at 29.
IPC argues there is no expert medical opinion establishing a
causal relationship between Moyers’ alleged exposure to paper
dust and aggravation of his lung and respiratory condition,
which would warrant the findings of the workers’ compensa-
tion court.
[15] Under the Nebraska Workers’ Compensation Act, an
injury has occurred as the result of an occupational disease
when violence has been done to the physical structure of
the body and a disability has resulted. Ludwick v. Triwest
Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004).
See § 48-151(4). In other words, an occupational disease has
caused an “injury,” within the meaning of the act, at the point
it has resulted in disability. Ludwick v. Triwest Healthcare
Alliance, supra. See § 48-151(4). The term “injury” includes
disablement from occupational disease arising out of and in
the course of the employment in which the employee was
engaged and which was contracted in such employment. See
§ 48-151(4).
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In 1972, Moyers began work for Weyerhaeuser, which was
subsequently bought by International Paper Company. Moyers
testified regarding his working conditions and exposure to
paper dust throughout his employment. He began experiencing
nasal, throat, and lung issues in 1997 and sought treatment.
There is evidence that Moyers shared his concerns regarding
his working conditions with his treating physicians from the
beginning of his treatment. In 1997, Moyers sought treatment
at an emergency room and reported having shortness of breath,
spasms, and coughing. Notes from that emergency room visit
indicate that Moyers worked in the “cardboard manufacturing
industry around a lot of dust, and his cough is worse there,”
and that his cough improved away from work. Moyers reported
to Nilsson in 2008 that he was exposed to “paper dust” at work,
but, at that time, could not say that his symptoms were worse
in his work environment. He experienced these symptoms over
a number of years until 2014, when it was recommended that
he cease his employment. Moyers’ pulmonologist, Thommi,
opined that “[c]ontinued exposure to this environment will
cause end-stage respiratory failure.”
The International Paper Company supervisor testified that
precautions were taken at the company in the most recent
years to trap or minimize the amount of dust in the air.
However, he had no specific knowledge of the safety meas­
ures taken prior to his role as supervisor or prior to his period
of employment.
Moyers offered a questionnaire signed by Thommi to sup-
port his claim, in which Thommi diagnosed “obstructive lung
disease/asthma,” “nocturnal hypoxemia /occupational lung dis-
ease with exacerbation,” and “hypersomnia.” Thommi checked
the box to indicate his opinion that “the diagnosed condition
[was] caused, significantly contributed to, or aggravated by an
accident or injury arising out of or in the scope of [Moyers’]
employment.” The court noted, “Although the higher courts
have expressed some dissatisfaction with opinions expressed
by check marks on a questionnaire, those reports are not to
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be rejected outright but should be examined as to a lack of
credibility or weight.” See Liberty v. Colonial Acres Nsg.
Home, 240 Neb. 189, 481 N.W.2d 189 (1992). Even though
the Workers’ Compensation Court found Thommi’s opinion
was lacking as to whether Moyers’ work was the cause of his
lung disease, the court found sufficient proof that Moyers’
underlying respiratory condition was aggravated by his work
at International Paper Company. The court was persuaded by
the “progressive nature” of Moyers’ medical condition “after
returning to work following brief hiatuses therefrom when his
condition had improved.”
IPC offered the opinion of Gammel, who reviewed Moyers’
medical records. Gammel opined that there was no objective
evidence to suggest that Moyers’ workplace environment was
the cause of his current condition based upon a reasonable
degree of medical certainty, but there is objective evidence
that his condition was related to his personal and non-work-
related health issues. These issues included allergies and sea-
sonal symptoms aggravated by house dust, emotional upset,
and respiratory infections. Gammel acknowledged that “dust
may cause a respiratory irritant to temporarily exacerbate the
pre-existing respiratory condition but not be the cause of the
condition.” Gammel also noted that “wood dust exposure can
cause respiratory effects [which] include hypersensitivity pneu-
monitis and occupational asthma.”
[16] The law of this state has consistently recognized that
“the lighting up or acceleration of preexisting conditions by
accident is compensable.” Riggs v. Gooch Milling & Elevator
Co., 173 Neb. 70, 74, 112 N.W.2d 531, 533 (1961). The
Nebraska Supreme Court has held that a workers’ compensa-
tion claimant may recover when an injury, arising out of and in
the course of employment, combines with a preexisting condi-
tion to produce disability, notwithstanding that in the absence
of the preexisting condition no disability would have resulted.
Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d
179 (2009).
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In occupational disease cases, the Nebraska Supreme Court
has stated that disability results at the point when “‘the injured
worker is no longer able to render further service.’” Ludwick v.
Triwest Healthcare Alliance, 267 Neb. 887, 895, 678 N.W.2d
517, 523 (2004). Here, the court considered the expert opinion
of Gammel, but deferred to Thommi’s opinion, noting that
even though Gammel is a qualified doctor, he is not a pul-
monologist or a specialist trained in the field of respiratory
conditions or diseases. The court found that, when taking the
evidence as a whole, Moyers’ asthma and preexisting respira-
tory condition became an occupational disease on September
19, 2014, when Thommi strongly recommended that Moyers
not return to work.
[17,18] As the trier of fact, the Workers’ Compensation
Court is the sole judge of the credibility of the witnesses and
the weight to be given their testimony. Tchikobava v. Albatross
Express, 293 Neb. 223, 876 N.W.2d 610 (2016). Where the
record presents nothing more than conflicting medical testi-
mony, an appellate 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 931 (2017).
Viewing the evidence in the light most favorable to Moyers,
and giving him the benefit of every inference reasonably
deducible from the evidence, we find the court was not clearly
wrong in finding Moyers met his burden to prove that he sus-
tained an occupational disease arising out of his employment.
5. Motion to Quash
IPC asserts the court erred in overruling IPC’s motion to
quash Moyers’ motion for determination of loss of earning
capacity and his motion to compel vocational rehabilitation.
IPC asserts the vocational rehabilitation counselor, Stricklett,
ignored the medical opinions of Moyers’ physician and the
court’s adoption of permanent restrictions, and relied only
upon “[Moyers’] subjective complaints, despite the lack of any
medical evidence demonstrating a change in [his] condition
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since the adoption of the permanent restrictions.” Brief for
appellant at 43. IPC alleges it was prejudiced by Stricklett’s
decision to allow Moyers to subjectively state that he could
not undergo vocational rehabilitation services without medical
evidence to support his claims.
Stricklett’s letter to counsel for the parties, dated September
22, 2016, stated that he met with Moyers on September 1 to
review his vocational rehabilitation options. Stricklett noted
that because Moyers was unable to return to International
Paper Company in any capacity, his vocational rehabilitation
options included a 90-day job search or a period of formal
training. During the meeting, Moyers informed Stricklett that
he would be unable to work part time or full time due to his
severe breathing issues, which require the use of a nebulizer
every 4 hours. Moyers stated that he is unable to sit in a class-
room, he does not handle hot or cold environments very well,
and he does not leave home but for short periods of time in
case a breathing treatment is required.
Stricklett concluded with a “reasonable degree of vocational
certainty” that Moyers was unable to participate in either of
the vocational rehabilitation plans available to him. Stricklett
stated that Moyers is not a viable candidate in the open labor
market, nor is he a candidate for training due to his inability
to be away from his home and his breathing treatments for
extended periods of time.
The court noted that the vocational rehabilitation statutes
provide that a chosen counselor “shall evaluate the employee
and, if necessary, develop and implement a vocational reha-
bilitation plan.” Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010).
The statute further provides that “the specialist shall make an
independent determination as to whether the proposed plan
is likely to result in suitable employment for the injured
employee.” Id. In this case, Stricklett determined, based on
the medical records and his interactions with Moyers, that the
available options for a vocational rehabilitation plan would not
restore Moyers to suitable employment.
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The court considered this evidence, as well as Moyers’ age,
medical condition, education, and lack of transferable job
skills, which all have precluded him from the only work he
knows. The court observed Moyers in the courtroom and found
it “extremely unlikely that any employer, even the very most
beneficent employer, would offer him a position.” The court
found that vocational rehabilitation was not feasible under
the circumstances.
Upon our review of the evidence, we cannot find the court
was clearly wrong in overruling IPC’s motions to quash and to
compel vocational rehabilitation under the circumstances.
6. Determination of Permanent
Total Disability
IPC asserts the court erred in finding that Moyers was
permanently and totally disabled, arguing the expert medical
evidence did not support the determination and there was not
sufficient evidence to warrant the court’s finding.
[19,20] Whether a plaintiff in a Nebraska workers’ compen-
sation case is totally disabled is a question of fact. Tchikobava
v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016).
Total disability exists when an injured employee is unable to
earn wages in either the same or a similar kind of work he
or she was trained or accustomed to perform or in any other
kind of work which a person of the employee’s mentality
and attainments could perform. Id. As the trier of fact, the
Workers’ Compensation Court is the sole judge of the cred-
ibility of the witnesses and the weight to be given their testi-
mony. Id.
IPC argues that Gammel and Thommi provided permanent
restrictions which would have allowed Moyers to return to
work and that the court adopted these restrictions. IPC asserts
the vocational counselor did not provide a loss of earn-
ing capacity analysis nor formulate a vocational rehabilita-
tion plan based on the permanent restrictions adopted by the
court, “even though the Court specifically indicated [Moyers’]
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entitlement to permanent disability benefits was to be deter-
mined after undergoing vocational rehabilitation.” Brief for
appellant at 47.
The evidence shows Stricklett prepared a loss of earning
capacity analysis in February 2016. In it, Stricklett stated that
if consideration is given to the opinion of Thommi, Moyers is
unable to lift, stand, or walk and therefore he is completely
unemployable and his loss of earning capacity would be 100
percent. However, Stricklett stated, in his analysis, if consider-
ation is given to the opinion of Gammel, Moyers’ loss of earn-
ing capacity would be 0 percent, because Gammel’s opinion
was that Moyers’ condition was not work-related. In the July
22, 2016, order, the court explicitly disagreed with Gammel’s
causation opinion and delayed a determination of loss of earn-
ing capacity until such time as Moyers underwent vocational
rehabilitation services.
As previously discussed, the court allowed the case to pro-
ceed for a determination of loss of earning capacity, without
the preparation and completion of a vocational rehabilitation
plan. The court considered Stricklett’s opinion that Moyers
was unable to participate in a vocational rehabilitation plan
due to his ongoing medical issues. The court found Moyers
was an “odd lot employee, i.e. someone who [is] not altogether
incapacitated for work [but] is so handicapped that he will not
be employed regularly in any well-known branch of the labor
market.” The December 2, 2016, order noted that the court
observed Moyers’ “difficulty breathing firsthand and was con-
vinced of the veracity of his complaints.”
[21] The court noted that when evaluating a loss of earning
capacity, it must consider the ability to procure employment
generally, the ability to earn wages in one’s employment, the
ability to perform tasks of the work in which one is engaged,
and the ability to hold a job obtained. The record shows that
the court considered each of these factors, as well as the
evidence of Moyers’ educational background, work history,
medical conditions, and vocational options, and concluded
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that he was permanently and totally disabled. The Nebraska
Supreme Court has stated that although medical restrictions
or impairment ratings are relevant to a claimant’s disability,
the trial judge is not limited to expert testimony to deter-
mine the degree of disability, but instead may rely on the
testimony of the claimant. Tchikobava v. Albatross Express,
293 Neb. 223, 876 N.W.2d 610 (2016). Upon our review, we
find the court considered the appropriate factors and was not
clearly wrong in determining that Moyers was permanently
and totally disabled.
VII. CONCLUSION
We affirm the decision of the Nebraska Workers’
Compensation Court finding that Moyers is permanently and
totally disabled as a result of an occupational disease and that
he is entitled to benefits.
A ffirmed.