Mischo v. Chief School Bus Serv. ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MISCHO V. CHIEF SCHOOL BUS SERV.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
JAMES MISCHO, APPELLANT,
V.
CHIEF SCHOOL BUS SERVICE, APPELLEE.
Filed September 26, 2017. No. A-16-997.
Appeal from the Workers’ Compensation Court: THOMAS E. STINE, Judge. Affirmed.
Roger D. Moore, of Rehm, Bennett & Moore, P.C., L.L.O., for appellant.
Brian D. Nolan and Leslie S. Stryker Viehman, of Nolan, Olson & Stryker, P.C., L.L.O,
for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
James Mischo appeals from an order of the Nebraska Workers’ Compensation Court which
dismissed his petition to modify a prior award. The compensation court concluded Mischo failed
to sustain his burden to show a material and substantial change in his condition. We affirm.
II. BACKGROUND
Mischo worked for Chief School Bus Service (Chief) as a shuttle bus driver on the
University of Nebraska-Omaha campus. Mischo sustained two injuries arising out of and in the
course and scope of his employment with Chief, one in 2008 and another in 2011. The 2008 injury
is not relevant to this appeal. On April 11, 2011, while cleaning out his bus, Mischo slipped on the
steps of the bus and fell. Medical records reflect that after this accident, Mischo reported pain that
started at the base of the left side of his neck, traveled into the left shoulder, and then down the
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front side of his forearm. He also described his left shoulder pain as achiness in the anterior
shoulder area that appeared to be affected by particular movements. Additionally, he complained
of headaches and tingling in his left arm in certain positions.
After treating with other doctors initially, Mischo was referred to Dr. John McClellan at
the Nebraska Spine Center. On November 16, 2011, Dr. McClellan reviewed Mischo’s clinical
history, MRI, and symptoms. He recommended that Mischo undergo “EMGs” of both upper
extremities to evaluate the C5 and C6 area. Dr. McClellan noted that if Mischo had “both C5 and
C6 radiculopathies on the left then we would consider a C4-C6 fusion.” On January 9, 2012, Dr.
McClellan recommended that Mischo undergo “an anterior cervical decompression and fusion
C4-5, C5-6 for his spondylitic foraminal stenosis and degenerative disk disease” after a carpal
tunnel release surgery did not relieve Mischo’s symptoms.
On January 17, 2012, Dr. McClellan performed the following: “1. Anterior cervical
discectomy with decompression C4-5, C5-6. 2. Anterior plate fixation. 3. Local bone graft. 4. Extra
small INFUSE bone morphogenic protein. 5. Interbody spacer.” Dr. McClellan reported that
Mischo tolerated the surgery well. Mischo was sent home in stable condition. The “Final
Diagnosis” after this procedure was “[d]isk disease with spinal stenosis C4-5 and C5-6.” During a
February 20 follow up, Mischo reported that the shooting pain down his left arm had improved
after the surgery.
On March 29, 2012, Dr. McClellan completed a Workers’ Compensation Medical Report.
On that form, he diagnosed Mischo with “cervical-spinal stenosis with Left C5/6 radiculopathy.”
He also opined that the fall did not aggravate or worsen Mischo’s preexisting chronic lumbar back
pain. Dr. McClellan finally suggested that Mischo “should reach MMI [maximum medical
improvement] within 6 months[’] time.”
Trial on Mischo’s workers’ compensation claim was held April 12, 2012. Four days later
on April 16, Mischo returned for a followup appointment with Dr. McClellan, at which time the
doctor concluded that Mischo was at MMI for the April 2011 injury and could return to light or
medium demand work. However, Dr. McClellan determined that Mischo could not return to
commercial driving.
Since trial took place before there was evidence of Mischo reaching MMI, the
compensation court entered an “Award” on May 9, 2012, finding that Mischo was temporarily
totally disabled as a result of the April 11, 2011, incident. The court found that Mischo’s fall
aggravated his preexisting cervical spondylolisthesis with C5-C6 radiculopathy. The court
awarded temporary total disability benefits from August 19, 2011, through April 12, 2012 (the
date of trial), and continuing until Mischo reached MMI. The court acknowledged the parties’
stipulation that Mischo had not yet reached MMI, and therefore did not determine loss of earning
capacity or vocational rehabilitation. The order was silent on future medical benefits.
Mischo returned to Dr. McClellan on October 24, 2012. He complained of continued neck
pain on his left side but noted that his arm symptoms had improved since surgery. Mischo also
indicated that his headaches were not as severe as before surgery. Dr. McClellan opined that
Mischo’s C5-C6 level had not yet solidly healed and recommended a CT scan of C4-C6 to confirm
this diagnosis.
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After another trial before the workers’ compensation court in November 2012, the
compensation court entered a “Further Award” on December 5. The court found that Mischo
reached MMI for his cervical spine injury on April 16, 2012, and that he sustained permanent
restrictions and limitations arising out of the cervical spine injury. The compensation court
concluded that Mischo sustained a 20-percent loss of earning capacity and that he was entitled to
permanent partial disability benefits. The further award was silent on medical benefits and
vocational rehabilitation.
Mischo continued to seek treatment and consultation after the December 2012 further
award. Mischo returned to Dr. McClellan in June 2013. Mischo complained of neck pain on his
left side, radiating pain down to the left shoulder, and pain that caused headaches. Dr. McClellan
suggested a cervical CT scan to assess the status of the fusion and determine if pseudoarthrosis
was causing Mischo’s symptoms.
On August 7, 2013, Mischo again saw Dr. McClellan and reported continued cervical pain,
primarily on his left side. Dr. McClellan reviewed the cervical CT scan and opined that the
previous surgical areas, C4 to C6 had healed properly. He noted that “the patient has severe left
facet hypertrophy at C6-7 which causes severe bony foraminal stenosis on the left.” He then
suggested “a left C7 selective nerve root block injection or C6-7 transformational injection for
diagnostic purposes.” Dr. Phillip Essay performed a left C7 nerve root block on August 14, 2013.
Dr. Essay noted that there was evidence Mischo had a moderately large and lateral bone spur at
C6-7 which likely approximated the C7 nerve root.
In October 2013, Mischo returned to Dr. McClellan for a followup appointment after the
C7 injection. Mischo reported that his symptoms had been 100-percent relieved for one day, then
80-percent improved for a time, but had eventually returned to their pre-injection state. During an
appointment on November 6, Dr. McClellan recommended surgery, namely “ACDF at C6-7 to
restore the foramen with distraction and taking down the uncovertebral joint.”
Mischo’s next appointment with Dr. McClellan was on February 25, 2015, more than one
year after Dr. McClellan recommended surgery for the continuing neck pain. Mischo again
reported pain in his neck, left shoulder, and left arm, and paraesthesias. Dr. McClellan suggested
a cervical MRI to determine the source of severe stenosis on the left and an “EMG” to determine
if Mischo had developed chronic radiculopathy in his left arm.
In August 2015, Dr. McClellan completed a form titled “Workers’ Compensation Medical
Report.” On the form, Dr. McClellan opined that Mischo’s diagnosis was cervical radiculopathy
secondary to the April 2011 work injury, that this condition was caused by, significantly
contributed to, or aggravated by the work injury in April 2011, that Mischo would need some form
of future medical care, and that Mischo should undergo a C6-7 fusion. Question 3(b) on the form
asked “Do you agree that this recommendation represents a material and substantial change in
circumstances since you last pronounced the patient at MMI for the accident detailed above (in
that said surgery had not been recommended at that time)?” The question called for a yes or no
answer. Dr. McClellan placed a check mark on “yes,” but drew a line through it. In addition, Dr.
McClellan wrote “I don’t understand the question” next to the “yes” and “no” check mark areas.
Dr. McClellan took Mischo off work again on November 5, 2015. However, Mischo testified that
he continued working until the school’s winter break in December 2015.
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On April 6, 2016, Mischo filed a “First Amended Petition to Enforce Award and/or Modify
Pursuant to [Neb. Rev. Stat.] § 48-162.01(7) (Reissue 2010) or Neb. Rev. Stat. § 48-141 [(Reissue
2010)].” Mischo pled that he was in need of additional medical treatment because of his work
injury and that Chief refused to authorize the additional treatment. He sought relief under
§ 48-162.01(7) and § 48-141 because he claimed he had suffered a material and substantial change
in circumstances.
Chief denied that it was responsible for the additional medical treatment because the
compensation court never awarded future medical benefits and because Mischo did not suffer a
material and substantial change in circumstances.
Trial took place on August 18, 2016. Mischo testified and exhibits were received. Mischo
acknowledged that he was placed at MMI by Dr. McClellan in April 2012, but that he continued
to see the doctor for neck pain, headaches, and left arm pain. He agreed that a CT scan in 2013
showed a “solid fusion of the prior neck surgery.” Mischo said another neck fusion procedure was
discussed with him in November 2013, and in February 2015, Dr. McClellan recommended that
Mischo see a shoulder specialist. And although Dr. McClellan took Mischo off work in November
2015, Mischo stated that he worked until “[r]ight before . . . Christmas break” in December.
Mischo said he had been on “medical leave” since then. Mischo described his left shoulder as
being “sore constantly, and then it moves up to the left side of my neck and comes across and
that’s when the headaches start.”
On cross-examination, Mischo acknowledged that prior to his injuries with Chief, he had
three low back injuries (from moving boxes, lifting an employee out of a car, and falling down
stairs) when he was working with the railroad (Union Pacific), and that he “retired” from the
railroad on a disability settlement in 1989 after working there for about 22 years. At the time of
the August 2016 trial, Mischo indicated he had been working for Student Transportation of
America (STA) for 2-1/2 years where he “fuel[s] the school buses.” He suffered an injury there on
May 14, 2014, when he stepped in a hole and fell on his left side. Mischo acknowledged that he
told a doctor in August 2015 that he had retired but still fueled buses for STA.
The compensation court entered an Order of Dismissal on September 15, 2016. The court
found that Mischo’s pain on the left side of his neck was “the same pain that was first diagnosed
in early 2012.” The compensation court specifically stated that it did not find Dr. McClellan’s
“fifth opinion” credible. The “fifth opinion” was the response to question 3(b) of the August 2015
form titled “Workers’ Compensation Medical Report.” In response to question 3(b) (“Do you agree
that this recommendation represents a material and substantial change in circumstances since you
last pronounced the patient at MMI for the accident detailed above (in that said surgery had not
been recommended at that time)?”), Dr. McClellan checked yes, drew a line through the check
mark, and wrote “I don’t understand the question.” After finding Dr. McClellan’s opinion on the
question not credible, the court also found that “McClellan lacked the requisite knowledge to make
an informed opinion with respect to this opinion.” Accordingly, the Court rejected McClellan’s
“5th opinion” [answer to question 3(b)], found the evidence failed to show a change in Mischo’s
medical impairment and disability, and therefore concluded that Mischo failed to satisfy his burden
of proof to show that a material and substantial increase in incapacity had occurred such that future
medical care benefits could be awarded pursuant to § 48-141. The court also found that
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§ 48-162.01(7) did not grant it the authority to modify a previous award to grant benefits not
originally provided without first proving the requirements of § 48-141, which Mischo had failed
to do. The court dismissed Mischo’s petition with prejudice. Mischo timely appealed.
III. ASSIGNMENTS OF ERROR
Restated, Mischo assigns the compensation court erred by failing to (1) apply the correct
legal standard under § 48-141, (2) find that he suffered a material and substantial change in
circumstances, (3) find that he is entitled to future medical care by implication, (4) find that the
proposed surgery was reasonable and necessary medical treatment, and (5) award attorney’s fees
and/or waiting time penalties.
IV. STANDARD OF REVIEW
A judgment, order, or award of the Workers’ 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. Rader v.
Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013).
In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers’
Compensation Court, a higher appellate court reviews the trial judge’s findings of fact, which will
not be disturbed unless clearly wrong. Id. If the record contains evidence to substantiate the factual
conclusions reached by the trial judge of the compensation court, an appellate court is precluded
from substituting its view of the facts for that of the compensation court. Id. Regarding questions
of law, an appellate court in workers’ compensation cases is obligated to make its own decisions.
Id.V. ANALYSIS
An award was entered by the compensation court on May 9, 2012, which determined
Mischo was entitled to benefits for two injuries: a 2008 injury not relevant here, and the April 11,
2011, injury at issue in this appeal. A further award related to the April 2011 injury was entered
by the compensation court on December 5, 2012, finding that Mischo had reached MMI as of April
16 that year and had sustained a 20-percent loss of earning capacity. No future medical benefits
were awarded. Although Mischo appealed the December 5 further award, Mischo did not assign
as error the court’s failure to award future medical benefits. Rather, Mischo challenged only
procedural aspects of the case. See Mischo v. Chief School Bus Serv., No. A-13-011, 2014 Neb.
App. LEXIS 138, 2014 WL 4100755 (Neb. App. Aug. 19, 2014) (selected for posting to court
website). Accordingly, in the present case, Mischo and Chief stipulated at trial that the
compensation court had not awarded future medical care in either the May 9 or December 5, 2012,
awards.
1. APPROPRIATE STANDARD UNDER § 48-141
Mischo argued at trial that even though future medical care was not awarded in the
compensation court’s prior awards, § 48-141 would nevertheless allow modification if there has
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been a substantial change in Mischo’s circumstances. On appeal, Mischo argues the compensation
court applied the incorrect legal standard under § 48-141 in that it failed to take “into consideration
the temporary situation Mischo finds himself in[,]” and that this is “a new issue not contemplated
by appellate courts previously[.]” Brief for appellant at 20.
Under § 48-141, an award by the compensation court may be modified:
(1) At any time by agreement of the parties with the approval of the Nebraska Workers’
Compensation Court; or (2) if the parties cannot agree, then at any time after six months
from the date of the agreement or award, an application may be made by either party on
the ground of increase or decrease of incapacity due solely to the injury.
Applicable here, to obtain a modification of an award under § 48-141(2), an applicant must prove,
by a preponderance of evidence, that the increase or decrease in incapacity was due solely to the
injury resulting from the original accident. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383(2013). The applicant must prove there exists a material and substantial change for the better or
worse in the condition, a change in circumstances that justifies a modification, distinct and
different from the condition for which the adjudication had been previously made. Id.An applicant who seeks to fulfill the requirements set forth in § 48-141 by demonstrating
a change in incapacity must establish both a change in the employee’s physical condition, or
impairment, and a change in the employee’s disability. Rader, supra. The term “impairment” is a
medical assessment, whereas the term “disability” is a legal issue. Id. Under the workers’
compensation law, “disability” refers to loss of earning capacity and not to functional or medical
loss alone. Id.
Chief points out that “[f]uture medical expense claims relating to an ‘already-adjudicated
accident are allowed only if (1) the requirements for modification under § 48-141 are met or (2)
the final award included an award for future medical expenses.’” Brief for appellee at 9 (quoting
Thornton v. Grand Island Contract Carriers, 262 Neb. 740, 634 N.W.2d 794 (2001)). Because it
is undisputed that neither the award nor the further award in this case provided for future medical
care, Chief asserts § 48-141 provides the appropriate standard and the compensation court applied
it correctly. We agree.
Once a party has filed a petition and an award of compensation has been entered by the
Workers’ Compensation Court, that award is final and not subject to readjustment unless there is
an increase or decrease in incapacity or the condition of a dependent has changed. Thornton, supra.
In other words, an injured worker may be entitled to future medical expenses under § 48-120 (Cum.
Supp. 2016), but the injured worker must prove such entitlement and obtain an award with respect
to the future medical expenses. See Thornton, supra. The employer can then, if warranted, appeal
that final award. If, on the other hand, future medical expenses are not part of the final award, that
judgment is final and any future claims for medical expenses relating to the same accident are
absolutely barred unless the requirements of § 48-141 are met. Thornton, supra.Based on the legal principles set forth above, the compensation court correctly applied
§ 48-141 by considering whether Mischo had proven, by a preponderance of evidence, that the
increase in his alleged incapacity was due solely to the injury resulting from the original accident.
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In considering any change in incapacity, the compensation court’s order contained a detailed
examination of whether Mischo’s physical condition (impairment) and disability (loss of earning
capacity) had worsened due solely to the April 2011 injury.
Mischo suggests that his case presents an issue of first impression because we have not
interpreted § 48-141 “in the context of a modification of an award to obtain recommended surgery
in a temporary situation like the one at issue where there was no explicit prior finding for future
medical care.” Brief for appellant at 17-18. He argues the current standard “doesn’t necessarily
make sense in the context of a recommended surgery post-award, which is the circumstance that
Mischo faced in this matter.” Id. at 18. Mischo suggests he should not be required to prove a
change in disability, e.g. loss of earning capacity, to modify his award because a worker “can’t
possibly show a permanent change in a loss of earning capacity without the benefit of a surgery.”
Id.
Mischo is correct that a loss of earning capacity might change after a surgical procedure;
in fact, the expected outcome would be an improved (lower) loss of earning capacity if the surgery
successfully eliminates or reduces prior physical restrictions. However, the possibility of any
increase or decrease in loss of earning capacity post-surgery does not change Mischo’s burden
under § 48-141 to show a material and substantial change for the worse in his condition, which is
distinct and different from his condition at the time of the previous adjudication. See Rader, supra.
We fail to see the alleged impossibility of this standard in Mischo’s case, e.g. why he could not
present evidence that since the further award, his condition and earning capacity had worsened due
solely to the injury. Mischo could have produced evidence of a change in his physical condition
(new restrictions, for example), along with evidence of how such restrictions have further impacted
his ability to continue working in a light or medium demand capacity. Notably, at the time of the
further award in December 2012, the compensation court concluded Mischo had sustained
permanent restrictions and limitations arising out of the cervical spine injury. This resulted in the
court awarding Mischo a 20-percent loss of earning capacity, which was based upon Dr.
McClellan’s opinion that Mischo could not return to commercial driving, and could only return to
light or medium demand work.
Therefore, to warrant modification of the further award, Mischo did not need to present
evidence of what his loss of earning capacity might be after the requested surgery. Rather, he
needed to present evidence showing he could no longer work in the light or medium demand work
categories. In its September 2016 order dismissing Mischo’s petition, the compensation court
noted that back in October 2012 (preceding the further award), Dr. McClellan had taken Mischo
off work at that time because of continued left-sided neck pain and headaches. The court stated in
its order, “[Mischo] continued to bounce back and forth from being unable to return to work, to
being released to return to work within these restrictions for the next three years.” The court further
stated that even though Mischo had been taken off work in November 2015, Mischo continued
working for approximately six more weeks. And even though Mischo claimed to have retired
because of neck issues, the court correctly noted there was no medical information in the record
that Mischo was taken off work in December 2015 because of problems to his neck. The court
concluded “[t]hese facts reveal that [Mischo’s] disability has not been materially and substantially
changed since entry of the December 2012 Further Award.” After careful consideration of the
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evidence to determine whether Mischo’s condition had worsened since the further award, the court
concluded it had not. There was no error by the compensation court in applying the standards for
modification under § 48-141 as previously established by the appellate courts.
2. MATERIAL AND SUBSTANTIAL CHANGE
Mischo argues that “the Trial Court’s factual finding [that he did not suffer a material and
substantial change] is clearly erroneous and is not substantiated by the evidence.” Brief for
appellant at 26. He asserts the compensation court’s dismissal was “based upon the
disregarding/mischaracterization of the [medical] records, failing to afford any credibility to the
lone doctor’s opinion because he failed to use magic words[,] and a legal error of the [t]rial [c]ourt
in finding its prior failure to award future medical care means it must do the same now.” Id. Chief
asserts that Mischo failed to demonstrate a change in medical impairment and a change in disability
and, therefore, he failed to demonstrate any change in incapacity.
Whether an applicant’s incapacity has increased under the terms of § 48-141 is a finding
of fact. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013). Upon appellate review, the
findings of fact made by the trial judge have the effect of a jury verdict and will not be disturbed
on appeal unless clearly wrong. Id. If the record contains evidence to substantiate the factual
conclusions reached by the trial judge of the compensation court, an appellate court is precluded
from substituting its view of the facts for that of the compensation court. Id.As discussed above, § 48-141 provides the appropriate standard for Mischo’s case. An
applicant who seeks to fulfill the requirements set forth in § 48-141 by demonstrating a change in
incapacity must establish both a change in the employee’s physical condition, or impairment, and
a change in the employee’s disability. Rader, supra.
When considering whether Mischo had sustained any change to his medical impairment,
the compensation court drew special attention to the August 2015 fill-in-the-blank form completed
by Dr. McClellan. On the form, Dr. McClellan opined that Mischo’s diagnosis was cervical
radiculopathy secondary to the April 2011 work injury, that this condition was caused by,
significantly contributed to, or aggravated by the work injury in April 2011, that Mischo would
need some form of future medical care, and that Mischo should undergo a C6-7 fusion. However,
Question 3(b) on the form asked “Do you agree that this recommendation represents a material
and substantial change in circumstances since you last pronounced the patient at MMI for the
accident detailed above (in that said surgery had not been recommended at that time)?” The
question called for a yes or no answer. Dr. McClellan placed a check mark on “yes,” but drew a
line through it. In addition, Dr. McClellan wrote “I don’t understand the question” next to the “yes”
and “no” check mark areas. The compensation court stated that the “notation weakens Dr.
McClellan’s credibility on this opinion, and the Court finds that Dr. McClellan lacked the requisite
knowledge to make an informed opinion with respect to this opinion. Accordingly, this court
rejects Dr. McClellan’s 5th opinion as set forth above.” The court found that “the totality of the
evidence establishes that the pain in the left side of plaintiff’s neck and headaches resulting from
this pain, which resulted in the recommendation for surgery, [is] the same pain that was first
diagnosed in early 2012.”
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The court continued, stating that Mischo’s “left sided neck pain and headaches have been
continuous and ongoing since at least January 2012, and have been related to the original April
2011 work injury.” The court found that Mischo failed to show a change in medical impairment
because the “medical records indicate that the health status of plaintiff’s cervical condition has not
changed since he was first placed at [MMI] in April 2012.” Finally, the compensation court
concluded that Dr. McClellan’s November 5, 2015, note, dictating that Mischo could not return to
work until he underwent additional evaluation, did “not say that plaintiff’s medical condition has
worsened such that [Mischo] has incurred an increase in his medical impairment or that there has
been a worsening of his restrictions and limitations.”
The record supports the compensation court’s determination; therefore, it was not clearly
wrong. See Rader, supra. As to Mischo’s argument that the compensation court failed to afford
credibility to Dr. McClellan’s opinion, it is well established that the compensation court is not
required to take an expert’s opinion as binding and may, as may any other trier of fact, either accept
or reject such an opinion. See Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995). Other
evidence supports the court’s decision. Dr. McClellan’s January 9, 2012, record indicates that
Mischo exhibited “moderate/advanced left and mild right facet arthropathy. Likely a small disk
bulge. Mild loss of disk height. There is a moderate/severe left bony foraminal stenosis. No
appreciable spinal canal or right foraminal narrowing” at the C6-C7 levels. Additionally, in April
2012, Dr. McClellan diagnosed Mischo with cervicalgia, a term used to describe pain or significant
discomfort in the neck, but yet he still placed Mischo at MMI. Between 2012 and 2016, Mischo
continued to report neck pain. Finally, Dr. McClellan’s November 5, 2015, note taking Mischo off
work does not say that Mischo suffered an increase in medical impairment or an increase in his
restrictions and limitations. It only states that Mischo is “[n]ot able to return to work (temporary
total disability) until evaluation with Dr. McClellan.” The compensation court did not err when it
concluded that Mischo failed to demonstrate any change in his physical condition (impairment).
The compensation court also considered whether Mischo presented evidence of a change
in disability. The compensation court noted: Mischo had reached MMI in April 2012 and returned
to work, albeit under permanent restrictions; Mischo was taken off work on October 2012 due to
left sided neck pain and headaches; and Mischo “continued to bounce back and forth from being
unable to work, to being released to return to work within these restrictions for the next three years.
In November 2013, Dr. McClellan recommended cervical discectomy and fusion surgery to help
alleviate plaintiff’s cervical pain.” The compensation court noted that while Mischo was again
taken off work on November 5, 2015, he continued to work for approximately six additional weeks.
Referring to the further award, the court noted the vocational information at that time
indicated Mischo had sustained a 20-percent loss of earning capacity as a result of his neck injury.
However, there was no vocational information showing that Mischo sustained additional loss of
earning capacity since the further award. Further, although Dr. McClellan indicated Mischo should
be off work beginning November 5, 2015, the court pointed out that Mischo “continued to work
until December 17, 2015, until taking retirement.” For these reasons, the court concluded Mischo
had not proven a change in disability since the further award.
Mischo argues that “[e]ither Mischo was not at [MMI] at the time of the Further Award
and no loss of earning capacity should have been assessed, or he was at [MMI] and two subsequent
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notes taking Mischo off work do reflect a change in circumstances/disability.” Brief for appellant
at 28. As to Mischo’s first argument that Mischo was not at MMI at the time of the further award,
we note that the determination of MMI and Mischo’s loss of earning capacity was not appealed
after entry of the further award and cannot be challenged in this appeal. As to Mischo’s suggestion
that the two subsequent doctor’s notes taking Mischo off work reflect a change in circumstances
in terms of disability, we must defer to the compensation court and its findings on that issue. See
Rader, supra (whether an applicant’s incapacity has increased under § 48-141 is a finding of fact).
While Mischo may have been temporarily taken off work, as he had been in the past, this does not
automatically equate to evidence of an increased loss of earning capacity directly traceable to his
April 2011 injury. The compensation court was not clearly wrong in concluding that Mischo had
not sustained a change in disability.
We find no error in the compensation court’s determination that Mischo “failed to satisfy
his burden of proof to show that a material and substantial increase in incapacity has occurred such
that future medical care benefits shall be awarded.”
3. IMPLIED ENTITLEMENT TO FUTURE MEDICAL CARE
As an alternative argument, Mischo posits that the compensation court’s “finding in its
initial award on May 9, 2012 that Mischo has not reached [MMI] implies legally that he was
entitled to future medical care by operation of law.” Brief for appellant at 39.
However, where an order is clearly intended to serve as a final adjudication of the rights
and liabilities of the parties, the silence of the order on requests for relief not spoken to can be
construed as a denial of those requests under the circumstances. D’Quaix v. Chadron State College,
272 Neb. 859, 725 N.W.2d 558 (2007). When a final award does not include future medical care,
that judgment is final and any future claims for medical expenses relating to the same accident are
absolutely barred unless the requirements of § 48-141 are met. Thornton v. Grand Island Contract
Carriers, 262 Neb. 740, 634 N.W.2d 794 (2001).
Mischo did not present this “implied” future medical care argument to the compensation
court. Rather, Mischo’s counsel accepted the following stipulation during trial: “[t]he parties
stipulate that the Court did not award future medical care in either the May 9, 2012, award, or the
December 5, 2012 further award.” An appellate court will not consider an issue on appeal which
was not presented to or passed upon by the trial court; therefore, we will not discuss this argument
further. See deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).
4. REASONABLE AND NECESSARY MEDICAL CARE
Since we are affirming the compensation court’s decision that Mischo failed to meet his
burden to modify the court’s further award, Mischo is not entitled to future medical care, and we
need not evaluate whether his proposed treatment qualifies as reasonable and necessary medical
care.
5. TEMPORARY TOTAL DISABILITY PAYMENTS
Mischo argues that he is entitled to temporary total disability (TTD) payments from
December 17, 2015, to the present. He asserts that “Dr. McClellan’s notes and report, and Mischo’s
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testimony provide a sufficient basis for the Court to award TTD from December 17, 2015 until
[MMI] is reached for the cervical spine surgery recommended by Dr. McClellan.” Brief for
appellant at 44.
Chief argues that Mischo is not entitled to TTD because he failed to meet his burden of
proof for modification under § 48-141 or show that his alleged current TTD is related to the 2011
work injury.
When an injured worker has attained maximum physical recovery after a work-related
injury, any residual disability from a compensable injury is permanent and prevents the worker’s
entitlement to compensation for temporary disability. Heiliger v. Walters and Heiliger Elec., Inc.,
236 Neb. 459, 461 N.W.2d 565 (1990). The compensation court determined Mischo reached MMI
on April 16, 2012, and failed to satisfy his burden to prove a material and substantial increase in
incapacity has occurred warranting a modification of the further award. Therefore, Mischo is not
entitled to additional TTD payments.
6. ATTORNEY FEES AND WAITING TIME PENALTIES
Mischo argues that he is entitled to a reasonable attorney fee and waiting time penalties
because “[t]here was no reasonable basis for [Chief’s] refusal to pay for the recommended medical
treatment.” Brief for appellant at 45.
Neb. Rev. Stat. § 48-125 (Cum. Supp. 2016) authorizes a 50-percent penalty for waiting
time involving delinquent payment of compensation and attorney fees where there is no reasonable
controversy regarding an employee’s claim for workers’ compensation. Nichols v. Fairway Bldg.
Prods., 294 Neb. 657, 884 N.W.2d 124 (2016). For the purposes of § 48-125, a reasonable
controversy exits if (1) there is a question of law previously unanswered by the appellate courts,
which question must be answered to determine a right or liability for disposition of a claim under
the Nebraska Workers’ Compensation Act, or (2) if the properly adduced evidence would support
reasonable but opposite conclusions by the compensation court about an aspect of an employee’s
claim, which conclusions affect allowance or rejection of an employee’s claim, in whole or in part.
See Id. The purpose of the provision for attorney fees in § 48-125 is to encourage prompt payment
by making delay costly if an employer neglects to pay medical payments after 30 days’ notice has
been given of the obligation for the medical payments. Simmons v. Precast Haulers, 288 Neb. 480,
849 N.W.2d 117 (2014).
Chief argues that Mischo is not entitled to either waiting time penalties or attorney fees
because he failed to establish the recommended medical care had been previously awarded or was
otherwise warranted through modification. Further, no medical bills had been submitted to Chief,
and there was a reasonable controversy as to whether Chief was responsible for the requested
surgery. “[Chief] has no burden to compensate [Mischo] for care simply because [Mischo] was
previously entitled to benefits from [Chief], which is essentially what [Chief] is requesting the
Court find.” Brief for appellee at 22.
As already discussed, no future medical care had been previously awarded by the
compensation court. Chief was under no present duty to pay for the surgery Mischo was seeking.
Also, as evident in the outcome in the compensation court and on appeal to this court, a reasonable
controversy existed as to whether Mischo sustained a material and substantial change in his
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condition since the further award. The compensation court did not err by failing to award waiting
time penalties or attorney fees.
VI. CONCLUSION
For the reasons stated above, we affirm the decision of the compensation court.
AFFIRMED.
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