Ulrich v. Arjo-Century Distributing ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ULRICH V. ARJO-CENTURY DISTRIBUTING
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).
DOUGLAS ULRICH, APPELLANT,
V.
ARJO-CENTURY DISTRIBUTING, INC., APPELLEE.
Filed May 9, 2023. No. A-22-656.
Appeal from the Workers’ Compensation Court: JAMES R. COE, Judge. Affirmed.
Terrence J. Salerno, of Salerno & Leavitt, for appellant.
Dennis R. Riekenberg and Michael R. Faz, of Cassem, Tierney, Adams, Gotch & Douglas,
for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
MOORE, Judge.
I. INTRODUCTION
Douglas Ulrich received injuries in a work-related accident while employed by
Arjo-Century Distributing, Inc. (Arjo). He then suffered a second nonwork-related accident. The
Nebraska Workers Compensation Court entered an award in Ulrich’s favor, but it limited his
recovery of medical expenses to those incurred through the date of the second accident. Ulrich
appeals, assigning error to the court’s finding that certain medical expenses incurred following the
second accident were not recoverable. For the reasons set forth herein, we affirm.
II. STATEMENT OF FACTS
1. EMPLOYMENT
At the time of his work-related accident and injury, Ulrich was employed by Arjo as a
certified service technician with specialized training in certain products used in hospitals, nursing
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homes, and some in-home care facilities. He sold service contracts and his job required him to
travel to facilities to perform maintenance and repair work. He was injured in a work-related
vehicle accident on April 7, 2017. Subsequently, on September 27, 2018, he was involved in a
second nonwork-related vehicle accident. At some point, Ulrich was fired by Arjo.
2. PETITION
On August 3, 2018, Ulrich filed a petition in the compensation court seeking benefits.
Ulrich alleged a work-related accident occurring on or about April 7, 2017, and resulting in injury
to his low back with right leg pain, neck pain, upper back pain with numbness to right hand, and
bilateral shoulder pain. Ulrich alleged that the matters in dispute were the extent of his disability,
entitlement to additional medical care and treatment, payment of medical bills, temporary total and
permanent partial disability benefits, and other benefits as allowed by the Nebraska Workers’
Compensation statutes.
3. TRIAL
Trial was held before the compensation court on June 8, 2022. The court heard testimony
from Ulrich, and it received numerous medical records, bills, and other documentary exhibits
offered by the parties, including documents filed in the district court litigation over the second
accident (Ulrich’s complaint, his answers to interrogatories filed by the defendant, and a release
of claims and indemnity agreement document). We have summarized only the evidence relevant
to the issues on appeal.
(a) April 2017 Accident and Subsequent Treatment
On April 7, 2017, Ulrich was driving his work van when another individual “drove right
out in front of [him],” forcing him to turn and brake his van to avoid a collision. Ulrich’s van went
off the road and skidded into a ditch or depression before stopping. He described the process of
driving into the ditch as involving “sudden impacts” and stated that the van “bounced” multiple
times before coming to a stop. Ulrich went to the emergency room where he was diagnosed with
“lumbar muscle pain” and discharged with medication. An x ray of Ulrich’s lumbar spine was
“negative.”
On April 12, 2017, Ulrich saw his primary care physician, Dr. Paul Mueller, complaining
of back pain radiating down to the right calf along with bilateral trapezius pain radiating down to
an area between the shoulder blades as well as into both arms. Mueller noted that Ulrich’s
symptoms were consistent with “muscular low back pain in the right parathoracic and right
paralumbar area except for some pain that radiates down the right leg which could be a radicular
sign.” And, he noted that Ulrich’s bilateral trapezius muscle pain was consistent with “whiplash
injury,” although the pain radiating into his arms and tingling in his fingers could be “a sign of
radiculopathy.” Mueller prescribed physical therapy and medication. Mueller’s office notes for
follow-up visits on April 28, May 12, May 26, and June 9, include references to on-going low
back, radiating into his right leg, and bilateral trapezius pain between his shoulder blades, radiating
into both arms, as well as mid back thoracic pain.
Following the May 26, 2017, visit, Mueller scheduled an MRI. The lumbar MRI,
completed in June, showed degenerative changes; neither the lumber nor the cervical MRI showed
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any “specific areas of foraminal narrowing or spinal stenosis.” The MRIs did not show anything
to explain Ulrich’s upper and lower extremity symptoms. Mueller then referred Ulrich to Dr.
Zachary Gustin, a physical medicine doctor.
On July 5, 2017, Ulrich saw Gustin for an initial evaluation. Gustin ordered thoracic
imaging, physical therapy, and an epidural injection. On July 10, Ulrich’s physical therapist noted
inconsistencies regarding his movement patterns and report of pain. Gustin gave Ulrich an epidural
injection on July 14, but because Ulrich showed no significant improvement, Gustin did not
recommend a repeat injection. When examining Ulrich during an August 9 follow-up visit, Gustin
noted “[e]xquisite tenderness to palpation, somewhat exaggerated to the level of pressure use” and
an improvement in his tenderness with distraction. In strength testing, Gustin observed Ulrich to
exhibit “a ratchet weakness with give way weakness pattern” that improved with coaching and
distraction. Gustin also noted the results from the ordered imaging of Ulrich’s thoracic spine
(“[n]ormal dorsal spine” shown by x rays and “[m]inimal degenerative disc disease” shown by
MRI) and his lack of significant gains through physical therapy. Gustin placed Ulrich at maximum
medical improvement (MMI) as of August 9 and referred him for a functional capacity evaluation
(FCE).
The results of the August 18, 2017, FCE were borderline valid with evidence of overt
symptom/disability exaggeration; it also noted that Ulrich’s movement patterns and behavior were
consistent with the symptoms and disability. In his notes from a September 1 office visit, Gustin
adopted the recommendations of the FCE that Ulrich was able to work at the light physical demand
level for an 8 hour day with certain restrictions.
After a follow-up visit on November 27, 2017, Gustin again did not recommend further
injections, and he opined that Ulrich’s MMI date and restrictions remained the same. At that time,
Ulrich still complained of severe back and buttock pain. He was also still experiencing neck pain,
numbness, and tingling. Ulrich saw Gustin again on May 24, 2018, at which time Gustin noted
that Ulrich’s pain was “relatively stable, perhaps slightly improved,” that he had some intermittent
“short-lived” aggravations with “overactivity and lifting,” and that he had been able “to manage
his aggravations relatively well with avoidance of overactivity and activity modification.”
Ulrich had a follow up visit with Mueller on August 3, 2018. In his office notes from the
August 3 visit, Mueller noted right shoulder pain “which has been persisting for some time now
and may have become lost in all the workup for neck pain and arm pain, thoracic back pain, and
low back pain.” Mueller noted the difficulty in distinguishing Ulrich’s “radiating pain” from pain
“actually in the shoulder,” but he found, upon examination of the right shoulder, “some possible
rotator cuff signs.” Ulrich’s last visit with Mueller prior to the second accident was on September
14.
(b) Vocational Rehabilitation
Ulrich participated in a vocational rehabilitation plan to obtain an associate’s degree in
business management between the two accidents. His schooling ended after the September 2018
accident. Ulrich sent an email to his vocational rehabilitation counselor on October 1, stating that
his “back shoulder leg neck pretty much everything [was] hurting a lot worse.”
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(c) September 2018 Accident and Subsequent Treatment
On September 27, 2018, Ulrich was involved in a second motor vehicle accident. In his
complaint filed in the resulting litigation in district court, Ulrich alleged that he was stopped behind
traffic at an intersection due to a red traffic signal and that the defendant in that litigation, who
failed to see the stopped traffic, “crashed his vehicle into the rear end of [Ulrich’s] vehicle” and
then “struck [Ulrich’s vehicle] a second time.” Ulrich alleged that as a result of that accident, he
sustained injuries, including “neck[,] shoulder, and mid-back pain, and lower back pain,” some of
which had required surgical intervention. He also alleged that his medical costs to date had been
$25,209, that some of his injuries were permanent and would require ongoing medical care and
treatment, and that he had been unable to work, resulting in lost earnings. In answers to
interrogatories from the defendant in the district court case asking him to describe the injuries for
which he was claiming damages, Ulrich responded that he “sustained an injury to his lower back
which necessitated surgical intervention,” “also required shoulder surgery to repair damage
suffered in the collision of 9-27-2018,” and “continue[d] to treat for neck pain which ha[d]
necessitated injections and physical therapy.” In response to an interrogatory asking him to
describe every item or element of special or monetary damages, Ulrich provided an itemized list
of bills incurred through January 28, 2020, totaling $188,508.41, including bills for the first
shoulder surgery and the first back surgery discussed below. Ulrich resolved the district court case
with the driver that hit his vehicle in September 2018 by release for the sum of $350,000.
After the September 2018 accident, Ulrich saw Mueller again on October 1, at which time
Mueller noted with respect to Ulrich’s lower back:
This is a very complicated case in this individual who has been having chronic low back
pain with pain radiating down the right leg for one and [a] half years after a prior accident
which occurred on his job. . . . He now has worsened low back pain and continued pain
down the right leg which is worsened after this most recent motor vehicle accident.
With respect to right shoulder pain, Mueller again characterized Ulrich’s situation as “a very
complicated case,” noting that Ulrich did have some right shoulder pain before the most recent
accident, which had increased after the 2018 accident. Mueller noted that Ulrich also had “positive
rotator cuff signs” and stated that he would “re-accomplish an orthopedic consult.” Mueller also
noted an exacerbation of Ulrich’s chronic right sided neck pain radiating down his right arm.
On November 12, 2018, Ulrich saw Dr. Thomas Brooks, for pain management, with his
chief complaint being “Back Pain, Leg Pain, Neck Pain.” Brooks’ notes from that visit contain a
reading of an October 9 MRI of Ulrich’s lumber spine, which showed “[d]egenerative changes at
L5-S1 left greater than right, increased from the previous [MRI]” of June 2017. Brooks noted that,
given Ulrich’s history and physical exam “the greatest pain generator is likely bilateral sacroiliac
joints,” and that he would plan to administer injections. Ulrich continued treating with Brooks until
May 27, 2020, during which time Brooks provided various joint injections, nerve blocks, and other
treatments.
On November 27, 2018, Ulrich was seen by Dr. Daniel Surdell for a neurosurgical
evaluation. At that time, Ulrich reported that following the second accident, his back pain had
increased by double or higher. Surdell performed two back surgeries on Ulrich, an L5-S1 fusion
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on March 25, 2019, and a revision surgery on November 16, 2020. In his check-the-box medical
report of January 2022, he attributed the need for the back surgeries to the work-related 2017
accident.
Ulrich also sought further evaluation of his shoulder complaints following the second
accident. In October 2018, he was seen by Dr. John Uggen, who eventually performed surgery on
Ulrich’s right shoulder on June 5, 2019. Another surgeon, Dr. Matthew Delisio, performed an
additional surgery on Ulrich’s right shoulder on April 6, 2021.
On April 7, 2020, between the dates of his two shoulder surgeries, Ulrich was also
evaluated by Dr. John Hain for complaints of neck and back pain. On April 10, after reviewing a
CT scan and MRI of Ulrich’s lumbar and thoracic spine, Hain noted “no recommendation for
surgical intervention at this time.”
(d) Independent Medical Examination and Causation Reports
Arjo requested an independent medical examination of Ulrich, which took place on
February 7, 2022. Ulrich was examined by Dr. Geoffrey McCullen, a spine neurosurgeon, and
Michael Koebernick, a physician’s assistant. Based upon the physical examination and his
extensive medical record review, McCullen opined that the April 2017 work-related accident
“caused a cervical, thoracic, and lumbar strain” and that there were “no spine surgical procedures
for the cervical, thoracic or lumbar diagnoses related to [that accident].” McCullen agreed with
Gustin’s imposition of MMI for the work-related accident as of August 2017 and, for “the spine
diagnoses related to the [April 2017] accident” imposed a 9-percent impairment rating “of the
whole person.” McCullen also agreed with the permanent restrictions with respect to the
work-related accident as identified in the August 2017 FCE report. As to future medical care
resulting from the work-related accident, McCullen opined that Ulrich required only medication
management. McCullen opined the September 2018 accident was “a significant contributing factor
to [Ulrich’s] present and ongoing neck and back complaints.” He noted that after the 2018 accident,
medical records indicated “a significant escalation of symptoms with worsening of the pre-existing
condition and expansion of complaints with the development of new left sided arm and leg
symptoms,” which led to “subsequent evaluations and invasive neck and back procedures
including surgery and pain management injections.”
Gustin also performed a medical records review and physical examination of Ulrich at
Arjo’s request. In his report of April 15, 2022, after noting the medical records and imaging reports
he reviewed and detailing Ulrich’s accident-related medical history, as well as the results of his
April 5 examination of Ulrich, Gustin proceeded to answer various questions put to him by Arjo.
Despite Ulrich’s assertions on appeal that Gustin revised his opinion as to Ulrich’s date of MMI
with respect to the April 2017 work-related accident, Gustin responded in his April 2022 report,
“Yes, [Ulrich] has achieved maximum medical improvement [] for his work-related accident as of
8/9/2017, when he was initially found to be at MMI.” And, he stated, “The above MMI date,
8/9/2017, corresponds to all of his injuries arising out of the April 7, 2017 work accident.”
Gustin did modify his previous view that surgical intervention for Ulrich’s low back pain
was not necessitated by the 2017 work-related accident, something he wrote about at length in his
April 2022 report and characterized as “complicated.” Gustin stated:
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Due to ongoing severe right low back and radiating right leg pain complaints documented
at every medical visit up until roughly 2 weeks prior to his second MVA, the medical
treatment that then transpired over the next several months, ultimately culminating in 2
spine surgeries with [Surdell], are therefore attributable to the April 7, 2017 work accident,
not the September 27, 2018 motor vehicle accident.
(Emphasis in original.) Gustin stated further, “In the setting of these events [documented
complaints of low back pain prior to second accident], I do feel that [Ulrich’s] first and second
spine surgeries did represent reasonable and necessary medical care for injuries attributable to the
April 7, 2017 work accident, not the September 27, 2018 motor vehicle accident.”
With respect to additional treatment for Ulrich’s low back pain and the causation for his
current pain complaints, Gustin opined, “[T]he ongoing injections provided by [Brooks] were
ultimately reasonable and necessary medical care for injuries attributable to the April 7, 2017 work
accident, and not the September 27, 2018 motor vehicle accident.” And, Gustin concluded,
“Ulrich’s present complaints include ongoing severe neck pain, scapular/thoracic pain, right
shoulder pain, and low back pain with radiation down his right leg. None of these present
complaints are attributable to the September 27, 2018 motor vehicle accident.”
Gustin did not attribute Ulrich’s need for his shoulder surgeries to either the 2017 or 2018
accident. In his April 2022 report, Gustin noted that Ulrich visited Mueller on five separate
occasions before August 3, 2018, and had five visits with him before the second accident and made
“no mention of right shoulder pain at any of those visits either.” Gustin stated, “[f]or the patient to
start complaining of right shoulder pain well over a year after his work-related accident, and then
claim it was due to the accident . . . does not suffice as direct causation.” He stated further, “I
believe [Ulrich’s] complaints of right shoulder pain are not causally related to the work-related
accident on April 7, 2017.” Gustin noted the degenerative changes shown in an MRI of Ulrich’s
right shoulder taken on October 18, 2018, and he stated, “These AC joint degenerative changes
are extremely common and are degenerative in nature, not usually attributable to any specific
trauma. The medical records indicate that [Ulrich] simply began developing right shoulder pain
like most people, unrelated to any specific motor vehicle accident.” And, based on the documented
complaints of right shoulder pain prior to the second accident, Gustin concluded that “it is clear
that [Ulrich’s] right shoulder pain is not attributable to the motor vehicle accident on September
27, 2018.”
4. AWARD
On August 11, 2022, the compensation court entered an award of benefits to Ulrich. After
setting forth a detailed recitation of the evidence, the court found, based on the evidence, that the
only physical or emotional injuries Ulrich suffered as a result of the April 2017 work-related
accident were a cervical, thoracic, and lumbar strain. The court found that “all of [Ulrich’s] surgical
procedures and continuing need for care” were the result of the nonwork-related second accident
of September 2018. The court found persuasive the report of McCullen that Ulrich did not suffer
“any need for surgical procedures” as a result of the April 2017 accident and the report of Gustin
that Ulrich’s “right shoulder and rotator cuff surgeries” were not related to the 2017 accident. The
court noted its thorough review of all of the medical evidence and stated, “Suffice it to say that
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there is evidence that would support or detract from any position that either of the parties wishes
to take. Be that as it may, the Court is more persuaded by the indicated medical evidence above
than differing medical evidence.” The court also found “serious issues of credibility” with respect
to Ulrich’s trial testimony about the 2018 accident, which characterized that accident as a nonevent
where “nothing happened,” when contrasted with the claims he made in the district court case with
respect to injuries sustained in that accident and the monetary sum for which those claims were
resolved. Accordingly, the court found by a preponderance of the evidence that the majority of
Ulrich’s claim for damages was the result of the 2018 accident rather than the 2017 work-related
accident.
The compensation court awarded Ulrich specified periods of temporary total disability and
found he sustained a 55-percent loss of earning capacity. The court found Arjo responsible for
only those itemized medical bills that existed prior to September 27, 2018, ordered it to pay any
such outstanding bills as itemized in a particular exhibit, and gave it credit for such bills as it had
previously paid. The court found Ulrich was entitled to vocational rehabilitation as specified in the
award and that Arjo was entitled to a credit of $19,808.56 against any future indemnity owed to
Ulrich from the 2017 accident as a result of his settlement of his third party claim against Arjo’s
workers’ compensation insurance carrier. And, the court found that Ulrich was entitled to future
medical expenses as identified in McCullen’s report of February 7, 2022, for the 2017 accident for
medications which might be reasonably necessary, together with periodic evaluations. A nunc pro
tunc order was entered on August 24, 2022, correcting certain dates in the original award. Ulrich
subsequently perfected his appeal to this court.
III. ASSIGNMENTS OF ERROR
Ulrich asserts, consolidated and restated, that the compensation court erred in (1)
concluding that his back surgeries, shoulder surgeries, and pain management, occurring after the
second accident, were not causally related to his first accident; (2) assuming McCullen’s opinions
and conclusions were factually based, reliable, and probative of the facts in issue; and (3) relying
on Gustin’s opinion regarding Ulrich’s shoulder surgery and the lack of any causal relationship to
the first accident.
IV. STANDARD OF REVIEW
Under Neb. Rev. Stat. § 48-185 (Reissue 2021), a judgment, order, or award of the
compensation court may be modified, reversed, or set aside only upon the grounds that (1) the
compensation court acted without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the
making of the order, judgment, or award; or (4) the findings of fact by the compensation court do
not support the order or award. Lewis v. MBC Constr. Co., 309 Neb. 726, 962 N.W.2d 359 (2021).
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 disturbed unless clearly wrong. Id.-7-
V. ANALYSIS
1. ADMISSION OF EVIDENCE REGARDING SETTLEMENT
OF SECOND ACCIDENT
Before turning to Ulrich’s arguments with respect to his assigned errors, we first address
the final argument section of Ulrich’s brief, in which he argues that the compensation court erred
in admitting evidence of his settlement of litigation over the second accident, in particular, “Exhibit
42 and the questions regarding that litigation.” Brief for appellant at 24. At trial, Ulrich’s attorney
objected to the offer of exhibit 42 as irrelevant. Arjo’s attorney argued that it was relevant because
in the district court lawsuit over the second accident, Ulrich sought recovery for “the exact medical
expenses” for which he was seeking recovery in the compensation court. The compensation court
overruled Ulrich’s objection, finding the exhibit relevant. Because Ulrich did not assign error to
the admission of exhibit 42, we will not consider his arguments about it further. An alleged error
must be both specifically assigned and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. Webber v. Webber, 28 Neb. App. 287, 942 N.W.2d
438 (2020).
2. SUFFICIENT COMPETENT EVIDENCE
Ulrich assigns that the compensation court erred in concluding that his back surgeries,
shoulder surgeries, and pain management, occurring after the second accident, were not causally
related to his first accident. He argues that the court erred in relying on the opinions of McCullen
and Gustin in reaching this conclusion.
To recover workers’ compensation benefits, an injured worker is required to prove by
competent medical testimony a causal connection between the alleged injury, the employment, and
the disability. Contreras v. T.O. Haas, 22 Neb. App. 276, 852 N.W.2d 339 (2014). Unless its
nature and effect are plainly apparent, an injury is a subjective condition requiring an expert
opinion to establish the causal relationship between the employment and the injury or disability.
Kaiser v. Metropolitan Util. Dist., 26 Neb. App. 38, 916 N.W.2d 448 (2018). Although expert
medical testimony in workers’ compensation cases must be based on a “reasonable degree of
medical certainty” or “reasonable probability,” the testimony need not be couched in those exact,
magic words. Contreras v. T.O. Haas, supra. The sufficiency of an expert’s opinion is judged in
the context of the expert’s entire statement. See Hintz v. Farmers Co-op Assn., 297 Neb. 903, 902
N.W.2d 131 (2017). The value of an expert witness’ opinion is no stronger than the facts upon
which it is based. Id.(a) Reliance on McCullen’s Opinion
Ulrich challenges the compensation court’s reliance on McCullen’s report following his
independent medical examination in concluding that Ulrich’s back surgeries were not related to
his work accident of 2017. Ulrich argues that McCullen’s report does not show he was given notes
from Ulrich’s visits to Mueller in August and September 2018 just prior to the second accident or
Gustin’s opinions about MMI as outlined in Gustin’s April 2022 report. Ulrich argues, “The date
when Ulrich reached MMI was a significant fact that formed the basis for critical portions of
[McCullen’s] opinions. Unfortunately, [McCullen] used a date referenced in the Gustin records
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that [Gustin] no longer believed was applicable to Ulrich’s medical situation.” Brief for appellant
at 20. He argues further that McCullen’s opinions were predicated on Gustin’s initial determination
that Ulrich reached MMI on August 9, 2017, and since that no longer reflected Gustin’s opinion
in 2022, McCullen’s conclusions with respect to the causal connection between Ulrich’s spine
surgeries and his April 2017 work accident were factually inaccurate and lacked probative value.
McCullen clearly conducted a thorough review of Ulrich’s medical records. The fact that
notes from two of Ulrich’s visits to Mueller were not referenced in McCullen’s report is not
indicative of whether McCullen did or did not review those notes. The medical records specifically
identified in McCullen’s report and the statements in his report, indicate his awareness of Ulrich’s
ongoing spine complaints beyond the point when Gustin placed Ulrich at MMI. And, we do not
read Gustin’s April 2022 report as a revision of his opinion with respect to MMI as suggested by
Ulrich. In his April 2022 report, Gustin reaffirmed his belief that Ulrich had reached MMI in
August 2017; Gustin revised his opinion as to whether Ulrich’s back surgeries were necessitated
by the 2017 work accident.
The trial judge in a workers’ compensation case is entitled to accept the opinion of one
expert over another. Michie v. Anderson Builders, 22 Neb. App. 731, 859 N.W.2d 906 (2015).
And, 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. Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d
198 (2020). We find no error in the compensation court’s reliance on McCullen’s opinion that
Ulrich did not require surgical procedures as a result of the 2017 accident.
(b) Reliance on Gustin’s Opinion
Ulrich also challenges the compensation court’s reliance on Gustin’s opinion that his
shoulder surgeries were not causally connected to his 2017 work accident. He argues that Gustin
overlooked documentation in Mueller’s records that noted right shoulder pain radiating into the
upper arms and forearms. He argues that Gustin’s “assumption that the shoulder was not a pain
source following the April 2017 work-related accident is factually incorrect.” Brief for appellant
at 22. It is clear that Gustin conducted a thorough review of the medical records, including those
of Mueller, in reaching the opinions expressed in his April 2022 report and that his opinion was
sufficient to support the compensation court’s conclusion with respect to the causation of Ulrich’s
shoulder surgeries. An appellate court examines the sufficiency of a medical expert’s statements
from the expert’s entire opinion and the record as a whole. Moss v. C&A Indus., 25 Neb. App. 877,
915 N.W.2d 615 (2018). It is the role of the compensation court as the trier of fact to determine
which, if any, expert witnesses to believe. Arroyo v. Caring for People Servs., 29 Neb. App. 93,
952 N.W.2d 11 (2020). Where the record presents nothing more than conflicting medical
testimony, an appellate court will not substitute its judgment for that of the compensation court.
Id.Viewing the evidence in a light most favorable to Ulrich, we cannot conclude that the
compensation court was clearly erroneous in finding that McCullen’s and Gustin’s opinions were
sufficient to establish that Ulrich’s surgeries and pain management treatment following the second
accident were not causally related to his first accident.
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VI. CONCLUSION
The compensation court did not err in relying on the opinions of McCullen and Gustin in
concluding that Ulrich back surgeries, shoulder surgeries, and pain management, occurring after
the second accident, were not causally related to his first accident.
AFFIRMED.
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