Krause v. Five Star Quality Care

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/23/2018 12:10 AM CST
- 612 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
Danielle K rause Laurie Hoyt, as coguardians and
and
coconservators forLinda Carlson, appellees, v.
Five Star Quality Care, Inc., also known as
Crestview Healthcare Center, and New H ampshire
Insurance Company, its workers’ compensation
insurance carrier , appellants.
___ N.W.2d ___
Filed November 16, 2018. No. S-18-009.
1. Workers’ Compensation: Appeal and Error. 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.
2. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
3. ____: ____. In workers’ compensation cases, an appellate court is obli-
gated to make its own determinations regarding questions of law.
4. Workers’ Compensation: Words and Phrases. In Nebraska, a work-
ers’ compensation claimant may receive permanent or temporary ben-
efits for either partial or total disability. “Temporary” and “permanent”
refer to the duration of the disability, while “total” and “partial” refer
to the degree or extent of the diminished employability or loss of earn-
ing capacity.
5. Workers’ Compensation. Temporary disability benefits under the
Nebraska Workers’ Compensation Act are discontinued at the point of
maximum medical improvement, because a disability cannot be both
temporary and permanent at the same time.
- 613 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
6. Workers’ Compensation: Time. The date of maximum medical
improvement for purposes of ending a workers’ compensation claimant’s
temporary disability is the date upon which the claimant has attained
maximum medical recovery from all of the injuries sustained in a par-
ticular compensable accident.
7. Workers’ Compensation. When an injured employee has reached maxi-
mum medical improvement, any remaining disability is, as a matter
of law, “permanent,” within the meaning of the Nebraska Workers’
Compensation Act.
8. ____. Whether a workers’ compensation claimant has reached maximum
medical improvement is a question of fact.
9. Workers’ Compensation: Judgments: Appeal and Error. In testing
the sufficiency of the evidence to support the findings of fact in a work-
ers’ compensation case, an appellate court considers the evidence in the
light most favorable to the successful party, every controverted fact must
be resolved in favor of the successful party, and the appellate court gives
the successful party the benefit of every inference reasonably deducible
from the evidence.
10. Workers’ Compensation: Witnesses. The single judge of the Workers’
Compensation Court is the sole judge of the credibility of the witnesses
and the weight to be given their testimony, even where the issue is not
one of live testimonial credibility.
11. Workers’ Compensation: Time. Maximum medical improvement
occurs only at the date a worker reaches maximum medical improve-
ment for all injuries suffered as a result of the work-related injury,
including psychological injuries.
12. Workers’ Compensation: Mental Health: Proof. In workers’ compen-
sation cases involving allegations of psychological injuries, the burden
is on the claimant to prove by a preponderance of the evidence that his
or her disability is the result of an accident arising out of the claimant’s
employment.
13. Workers’ Compensation. 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 employees’ mentality and attain-
ments could perform.
14. ____. Whether a worker is totally and permanently disabled is a ques-
tion of fact.
15. Workers’ Compensation: Evidence: Appeal and Error. When test-
ing 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
- 614 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
successful party will have the benefit of every inference reasonably
deducible from the evidence.
16. Workers’ Compensation: Proof. An injured employee seeking perma-
nent disability benefits has the burden of proving that his or her injury
caused permanent impairment and that this impairment resulted in a loss
of earning capacity.
17. Workers’ Compensation: Expert Witnesses. While expert witness
testimony may be necessary to establish the cause of a claimed injury,
the Workers’ Compensation Court does not need to depend on expert
testimony to determine the degree of disability.
18. Workers’ Compensation: Testimony. In assessing a claimant’s dis-
ability, physical restrictions and impairment ratings are important; but
once a claimant establishes the cause of disability, the trial judge is not
limited to this evidence and may also rely on the claimant’s testimony to
determine the extent of disability.
19. Workers’ Compensation: Words and Phrases. Disability, in contrast
to impairment, is an economic inquiry.
20. ____: ____. Total disability does not mean a state of absolute helpless-
ness. Rather, it means that because of an injury, (1) a worker cannot earn
wages in the same or a similar kind of work for which he or she was
trained or was accustomed to performing or (2) the worker cannot earn
wages for any other kind of work which a person of his or her mentality
and attainments could do.
21. Workers’ Compensation. A worker’s earning power after a physical
injury is often constricted by mental capacity and education, and it is a
matter of common observation that a worker whose sole stock in trade
has been the capacity to perform physical movements, and whose ability
to make those movements has been impaired by injury, is under a severe
disadvantage in acquiring a dependable new means of livelihood.
22. Workers’ Compensation: Evidence: Appeal and Error. If the record
contains evidence to substantiate the factual conclusions reached by the
trial judge in workers’ compensation cases, an appellate court is pre-
cluded from substituting its view of the facts for that of the compensa-
tion court.
23. Workers’ Compensation. Whether an employee who has a compen-
sable permanent total disability can, consistent with the Nebraska
Workers’ Compensation Act, be deprived of ongoing total disability
benefits because of a subsequent noncompensable injury that indepen-
dently causes permanent disability presents a question of law.
24. ____. The Nebraska Workers’ Compensation Act should be construed
liberally to carry out its spirit and beneficent purposes.
25 ____. Where it is shown that a worker has a condition attributable to
his or her employment that alone would totally disable him or her, it is
- 615 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
immaterial for the purposes of the workers’ compensation statutes that
he or she may suffer from other independent and concurrent ailments
which would by themselves be sufficient to disable him or her.
Appeal from the Workers’ Compensation Court: John R.
Hoffert, Judge. Affirmed.
Patrick J. Mack, of Hennessy & Roach, P.C., for appellants.
Daniel A. Fix, of Fix Law Office, P.C., L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Linda Carlson was injured during the course and scope of
her employment and filed a petition in Workers’ Compensation
Court seeking temporary and permanent disability benefits.
Approximately 3 weeks after the petition was filed, Carlson
suffered a catastrophic stroke which left her largely incapaci-
tated. The stroke was unrelated to the work injury or treatment.
The compensation court found Carlson had reached maximum
medical improvement prior to her stroke and awarded perma-
nent total disability benefits. The employer and its workers’
compensation insurance carrier appeal, challenging the date of
maximum medical improvement and the award of permanent
total disability. The employer also argues that after Carlson’s
stroke, she was no longer entitled to permanent total disability
benefits. We affirm.
I. FACTS
1. Background
The parties stipulated to many of the relevant facts. Carlson
was injured on February 17, 2013, during the course and scope
of her employment with Five Star Quality Care, Inc., also
known as Crestview Healthcare Center. Carlson was working
as a housekeeper when she slipped and fell, fracturing her
right femur.
- 616 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
Carlson filed a petition in the compensation court in
September 2015. On October 14, 2015, she suffered a cata-
strophic stroke that was wholly unrelated to the work-related
injury and its subsequent treatment. The compensation court
granted the parties’ joint motion to substitute Carlson’s coguard-
ians and coconservators as plaintiffs.
2. Trial Evidence
Trial was held on November 7, 2017. Carlson appeared,
but did not testify, because her stroke left her unable to com-
municate verbally. The only witness to testify was one of
Carlson’s coconservators, who had known Carlson for many
years. Medical evidence was submitted, and the parties offered
a comprehensive joint stipulation addressing most of the rel-
evant facts concerning Carlson’s work accident and subse-
quent treatment.
(a) Work Injury and Treatment
The evidence showed that the day after Carlson’s fall, three
pins were surgically inserted in her hip. Carlson underwent
subsequent physical therapy and treatment and, in April 2013,
was authorized to return to work in a “[s]edentary/[l]ight”
capacity. Carlson continued to struggle with significant pain,
and on June 14, Dr. Matthew Reckmeyer recommended a total
hip arthroplasty and opined Carlson could not return to work
in any capacity. Reckmeyer performed the hip arthroplasty
on June 25. Carlson did not return to work after June 14, and
she continued to report significant pain and limitations up to
the date of her stroke. She last sought treatment for her work
injury on September 15, 2015. Five Star Quality Care and
New Hampshire Insurance Company, Five Star’s workers’
compensation insurance carrier (collectively Five Star), have
paid all of Carlson’s medical bills related to the work accident
and injury and paid temporary partial disability benefits for a
period of time.
- 617 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
(b) Medical Evidence
Medical examinations were performed on Carlson in
September 2014, April 2015, and October 2015. The September
2014 examination was performed by Dr. David Diamant, who
was retained by Five Star. Diamant opined Carlson had not
reached maximum medical improvement at that time, because
she could possibly benefit from additional treatment to her
right sacroiliac joint. Diamant also performed a second medi-
cal examination of Carlson in April 2015. At that time, he did
not make an express finding of maximum medical improve-
ment. He did, however, determine Carlson had suffered a
30-­percent body-as-a-whole impairment. He also opined that
Carlson would likely need “continuing maintenance care” and
recommended she could work at “sedentary duty capacity.”
Dr. Morgan LaHolt, also retained by Five Star, conducted the
October 8, 2015, medical examination. LaHolt found Carlson
had reached maximum medical improvement as of that date
for “any and all conditions” “related to [the] work accident
injury of February of 2013.” Notes from LaHolt’s physical
examination indicate Carlson was able to rise from a seating
position using a cane. She reported pain with hip flexion, hip
abduction, hip adduction, knee extension, and knee flexion.
Carlson’s pain limited her from engaging in range-of-motion
testing. Carlson told LaHolt that she could walk for only 50 to
75 feet and that her pain increased with turns and activities that
required bending.
LaHolt found Carlson had a 37-percent lower extremity
impairment and opined it was “likely that . . . Carlson will
have significant permanent physical restrictions as a result of
her injury.” LaHolt’s report rejected a suggestion from one of
Carlson’s treating physicians regarding placement of a spinal
cord stimulator to manage her pain, opining that the “likeli-
hood of any type of functional or symptomatic improvement”
from such treatment was “extremely low.”
As noted, Reckmeyer was one of Carlson’s treating physi-
cians. He first examined Carlson in June 2013 and performed
- 618 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
the hip arthroplasty on June 25, 2013. He then saw Carlson
for several followup appointments. Reckmeyer’s last exami-
nation of Carlson occurred on October 24, 2014. His report
of the same date stated Carlson had a “smoldering dysfunc-
tion” with her right hip and ambulated with a cane. He opined
the hip replacement appeared stable and well aligned and
recommended Carlson pursue treatment for sacroiliac joint
problems.
Pursuant to a request from Carlson’s counsel, Reckmeyer
authored a subsequent report on July 17, 2017, which opined:
Carlson has been under my care for treatment of a work
related left hip fracture that she sustained on or about
February 17, 2013. She required a repair of her fracture
and subsequently a total hip replacement. As of her last
office visit October 24, 2014, she had reached a point of
medical stability. She required the use of an ambulatory
assistive device and would likely continue to require that.
At that time, it was felt that she would be able to perform
restricted activity work which would include capacity in
the sedentary[-]light category. She would be limited from
climbing stairs and restricted from no ladders, no kneel-
ing or no squatting. Very limited walking and only light
(10 #) lifting. Some reaching would be tolerated. These
would be lifelong restrictions.
Counsel for Five Star then obtained a further report from
LaHolt, who examined Reckmeyer’s reports of October 24,
2014, and July 17, 2017, and opined:
After a review of the medical record, it does not appear
that . . . Carlson reached MMI as of her final visit
with Dr. Reckmeyer. Additional work up and treatment
would not be expected to be necessary for an indi-
vidual who has reached maximum medical improve-
ment. . . . Instead, I would place . . . Carlson’s date of
maximum medical improvement as of October 8, 2015,
the date of my independent medical examination. At the
time of this encounter, . . . Carlson had undergone all
- 619 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
reasonable medical treatment and work up of her work
related condition.
(c) Testimony of Coguardian
and Coconservator
Carlson’s coguardian and coconservator, Laurie Hoyt, testi-
fied she had known Carlson for 25 years and regularly spent
time with her both before and after the work accident. Hoyt
observed a significant decline in Carlson’s physical ability
after the work accident; she became sedentary, required a
cane to walk, no longer participated in her prior activities or
hobbies, and complained “a lot” about pain. Hoyt also testi-
fied about Carlson’s educational background and her prior
work experience. Carlson had completed high school and had
worked (1) in a road construction crew, performing duties
such as driving a blacktop roller and flagging traffic; (2) in the
food industry, loading, hauling, and unloading large contain-
ers of food; and (3) in hotel housekeeping. This vocational
history was also supported by the medical reports. Additional
evidence in the record showed that before her stroke, Carlson
had some “[u]nderlying elevated symptoms of depression,”
was “mildly impaired” intellectually/cognitively, and had a
full-scale IQ of 69.
3. Compensation Court Findings
The Workers’ Compensation Court found Carlson reached
maximum medical improvement on October 8, 2015 (the date
of her medical examination by LaHolt) and awarded tem-
porary disability benefits up to that date. The court went on
to find that from and after the date of maximum medical
improvement, Carlson was permanently and totally disabled
as a result of her work injury. In making this finding, the
court acknowledged that no vocational rehabilitation counselor
had offered an opinion on Carlson’s loss of earning capacity.
However, the court concluded it could find a loss of earning
capacity based on evidence of permanent impairment and/or
- 620 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
restrictions. Thus, the court relied on Reckmeyer’s 2017 report,
Diamant’s impairment rating, and LaHolt’s observations of
Carlson’s restrictions on October 8, 2015. It also noted the evi-
dence of Carlson’s education, work history, and cognitive abili-
ties. Ultimately, the compensation court concluded: “Giving
due consideration to . . . Carlson’s educational background,
vocational/employment history, self-described physical limita-
tions as well as the restrictions imposed upon her by medical
providers . . . , the Court finds that . . . Carlson has been ren-
dered permanently and totally disabled as a result of her work
accident of February 17, 2013.”
The compensation court awarded Carlson permanent total
disability benefits “for so long as she remains permanently and
totally disabled.” The court rejected Five Star’s contention that
the occurrence of the stroke relieved Five Star of the ongoing
responsibility to pay total disability benefits. Five Star appeals.
We moved this case to our docket on our own motion.1
II. ASSIGNMENTS OF ERROR
Five Star assigns, restated and consolidated, that the com-
pensation court erred in (1) finding Carlson reached maximum
medical improvement on October 8, 2015; (2) finding Carlson
was permanently and totally disabled; and (3) finding the
stroke had no impact on Carlson’s entitlement to ongoing per-
manent total disability benefits.
III. STANDARD OF REVIEW
[1] 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 pro-
cured by fraud; (3) there is not sufficient competent evidence
in the record to warrant the making of the order, judgment, or
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
- 621 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
award; or (4) the findings of fact by the compensation court do
not support the order or award.2
[2] 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.3
[3] In workers’ compensation cases, an appellate court is
obligated to make its own determinations regarding questions
of law.4
IV. ANALYSIS
1. Date of M aximum
Medical Improvement
[4] The parties dispute the date on which Carlson attained
maximum medical improvement from her work injury. This
date is important because it marks the point at which tempo-
rary disability benefits end and entitlement to permanent dis-
ability benefits can be ascertained.5 In Nebraska, a workers’
compensation claimant may receive permanent or temporary
benefits for either partial or total disability.6 “Temporary” and
“permanent” refer to the duration of the disability, while “total”
and “partial” refer to the degree or extent of the diminished
employability or loss of earning capacity.7
[5-7] Temporary disability benefits under the Nebraska
Workers’ Compensation Act are discontinued at the point of
2
Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018); Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2016).
3
Id.
4
Kohout v. Bennett Constr., 296 Neb. 608, 894 N.W.2d 821 (2017); Money
v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
5
See Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865
N.W.2d 371 (2015). See, also, Neb. Rev. Stat. § 48-121(3) (Reissue 2010)
(“compensation for temporary disability shall cease as soon as the extent
of the permanent disability is ascertainable”).
6
See id.
7
Gardner, supra note 5.
- 622 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
maximum medical improvement, because a disability cannot
be both temporary and permanent at the same time.8 The date
of maximum medical improvement for purposes of ending a
workers’ compensation claimant’s temporary disability is the
date upon which the claimant has attained maximum medi-
cal recovery from all of the injuries sustained in a particular
compensable accident.9 When an injured employee has reached
maximum medical improvement, any remaining disability is,
as a matter of law, “permanent,” within the meaning of the
Nebraska Workers’ Compensation Act.10
[8,9] Generally, whether a workers’ compensation claimant
has reached maximum medical improvement is a question of
fact.11 In testing the sufficiency of the evidence to support the
findings of fact in a workers’ compensation case, an appellate
court considers the evidence in the light most favorable to the
successful party, every controverted fact must be resolved in
favor of the successful party, and we give the successful party
the benefit of every inference reasonably deducible from the
evidence.12
In her petition, Carlson alleged that the “nature and extent
of the injury sustained is right femur fracture, post total
hip arthroplasty, chronic pain syndrome, gait disturbance and
depressive disorder.” The parties stipulated that she sustained
a compensable injury arising out of the February 17, 2013,
accident and that she underwent a “percutaneous screw fixa-
tion and subsequent total hip arthroplasty as a result of the
femur fracture sustained” in the work accident. The stipulation
is silent regarding her chronic pain syndrome, gait disturbance,
8
Id. See, also, § 48-121(3).
9
Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).
10
Gardner, supra note 5; § 48-121.
11
Stacy, supra note 9; Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757,
707 N.W.2d 232 (2005).
12
See, Gardner, supra note 5; Money, supra note 4.
- 623 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
and depressive disorder. There is no other evidence of causa-
tion in the record.
[10] Five Star argues the compensation court erred in relying
on the opinions of Reckmeyer and LaHolt in finding Carlson
reached maximum medical improvement on October 8, 2015.
With respect to the medical opinions of Reckmeyer, Five Star
presents several arguments, all of which amount to attacks on
the weight and credibility of Reckmeyer’s July 2017 report.
The single judge of the Workers’ Compensation Court is the
sole judge of the credibility of the witnesses and the weight
to be given their testimony, even where the issue is not one
of live testimonial credibility.13 Here, the compensation judge
expressly found the opinions offered by Reckmeyer to be per-
suasive, and Five Star’s appellate arguments to the contrary are
without merit.
With respect to LaHolt’s opinion, Five Star concedes his
report is “sufficient to support a finding of maximum medical
improvement from a physical medicine prospective.”14 Indeed,
LaHolt’s October 8, 2015, report expressly stated Carlson had
reached maximum medical improvement as of that date for
“any and all conditions” “related to [the] work accident injury
of February of 2013.” But Five Star argues there was a psy-
chological aspect of Carlson’s injury that was not addressed by
LaHolt. Some additional background is helpful to understand
this argument.
Dr. Robert Arias, a neuropsychologist, examined Carlson
in August 2015 on a referral from her treating physician
to determine whether she was a good candidate for a spi-
nal cord stimulator to help with her pain management. After
his examination, Arias diagnosed Carlson with “Unspecified
Neurocognitive Disorder,” “Unspecified Depressive Disorder,”
13
Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828
N.W.2d 154 (2013); Swanson v. Park Place Automotive, 267 Neb. 133,
672 N.W.2d 405 (2003).
14
Brief for appellants at 18.
- 624 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
and “Intellectual Disability, Mild.” His report made no attempt
to relate any of these diagnoses to Carlson’s work accident
injury or related treatment.
[11] Now, Five Star relies on Arias’ diagnoses to suggest
that its own retained expert, LaHolt, failed to adequately con-
sider Carlson’s “psychological injuries” when he concluded
on October 8, 2015, that she had reached maximum medical
improvement for any and all conditions related to the work
injury. Five Star’s argument is based on the proposition that
maximum medical improvement occurs only at the date a
worker reaches maximum medical improvement for all injuries
suffered as a result of the work-related injury, including psy-
chological injuries.15
[12] In workers’ compensation cases involving allegations of
psychological injuries, the burden is on the claimant to prove
by a preponderance of the evidence that his or her disability is
the result of an accident arising out of the claimant’s employ-
ment.16 Here, the burden was on Carlson to prove any psycho-
logical injuries were caused by the work-related accident.
Although Carlson’s complaint alleged depression as one of
the accident-related injuries, she never attempted to prove a
causal relationship between her depression and the work acci-
dent. And although Arias’ report noted Carlson suffered from
unspecified neurocognitive disorder and unspecified depres-
sive disorder, he did not opine that either disorder was caused
by the February 17, 2013, accident or related treatment. The
parties’ stipulation did not reference either disorder, and there
is no other evidence in the record suggesting that either disor-
der, or any other psychological condition, was caused by the
February 17 accident and resulting treatment.
On this record, evidence of psychological injury was simply
not a factor in the compensation court’s finding of maximum
15
See Rodriguez, supra note 11.
16
Worline v. ABB/Alstom Power Int. CE Servs., 272 Neb. 797, 725 N.W.2d
148 (2006).
- 625 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
medical improvement. Consequently, Five Star’s concern that
LaHolt’s report did not “attempt to comment on the psycho-
logical or neuropsychological aspects”17 of Carlson’s treatment
with Arias is of no moment. The trial court did not clearly err
in finding Carlson had reached maximum medical improve-
ment on October 8, 2015, for all injuries suffered as a result of
the work accident.
2. Permanent Total Disability
[13,14] After determining the date of maximum medical
improvement, the compensation court found that as of that
date, Carlson was permanently and totally disabled as a result
of the work accident and injury. 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 employees’ mentality and attainments could perform.18
Whether a worker is totally and permanently disabled is a
question of fact.19
[15] Five Star argues there was insufficient evidence in
the record to support the court’s factual finding that Carlson
was permanently and totally disabled. When testing the suffi-
ciency 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 infer-
ence reasonably deducible from the evidence.20
[16,17] An injured employee seeking permanent disability
benefits has the burden of proving that his or her injury caused
17
Brief for appellants at 18.
18
Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016);
Money, supra note 4.
19
See id.
20
Nichols v. Fairway Bldg. Prod., 294 Neb. 657, 884 N.W.2d 124 (2016);
Tchikobava, supra note 18.
- 626 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
permanent impairment and that this impairment resulted in
a loss of earning capacity.21 While expert witness testimony
may be necessary to establish the cause of a claimed injury,
the Workers’ Compensation Court does not need to depend on
expert testimony to determine the degree of disability.22 Here,
the court based its finding of permanent and total disability
on the uncontroverted medical evidence of permanent impair-
ment and lifelong restrictions, as well as testimony regarding
Carlson’s self-described physical limitations and evidence of
her educational background, vocational history, and mental
ability before the stroke.
Before addressing this evidence, we note Five Star makes
much of the fact that presumably due to the timing of Carlson’s
stroke, no expert performed additional medical assessments of
Carlson’s impairment or restrictions after the chronological date
of maximum medical improvement—October 8, 2015. Five
Star argues that because permanent impairment and permanent
restrictions cannot be ascertained until after maximum medical
improvement is reached,23 the lack of such assessments after
October 8 resulted in insufficient evidence upon which the trial
court could make a determination of permanent disability.
This argument, however, is based only on the chronologi-
cal dates of the relevant assessments and ignores their con-
tent. In finding Carlson totally and permanently disabled, the
trial court specifically relied on the medical opinions of both
Reckmeyer and LaHolt. Temporally, Reckmeyer’s opinion was
rendered after maximum medical improvement was reached,
because his report was authored in July 2017. But what is more
important, in that report, Reckmeyer opined that as of October
24, 2014, Carlson would have “lifelong restrictions” requiring
the use of an ambulatory assistive device and limiting her to
21
Gardner, supra note 5.
22
See Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).
23
See Yost v. Davita, Inc., 23 Neb. Ct. App. 482, 873 N.W.2d 435 (2015).
- 627 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
sedentary-light work. Reckmeyer specified that Carlson would
also have “lifelong” limitations on her ability to climb stairs,
walk, climb ladders, kneel, squat, and lift. Similarly, LaHolt
found in October 2015, days before her stroke, that Carlson
would have “significant permanent physical restrictions.” In
addition, Diamant assessed Carlson with a 30-percent body-
as-a-whole impairment, also before her stroke. No evidence
was offered to the contrary. The evidence in the record was
sufficient to support the compensation court’s finding that
prior to her stroke, Carlson suffered significant and severe
permanent impairment and restrictions as a result of her work-
related accident.
Five Star does not specifically contest the compensation
court’s finding that based on her permanent impairments and
restrictions, Carlson was permanently and totally disabled as a
result of the work accident of February 17, 2013. But for the
sake of completeness, we note the record supports this factual
finding. In addition to the medical assessments of permanent,
lifelong restrictions and physical impairment, the record also
contains evidence of Carlson’s prior work history, education,
and cognitive ability.
[18-20] In assessing a claimant’s disability, physical restric-
tions and impairment ratings are important; but once the
claimant establishes the cause of disability, the trial judge is
not limited to this evidence and may also rely on the claimant’s
testimony to determine the extent of disability.24 Disability, in
contrast to impairment, is an economic inquiry.25 And total
disability does not mean a state of absolute helplessness.26
Rather, it means that because of an injury, (1) a worker cannot
earn wages in the same or a similar kind of work for which he
24
Money, supra note 4.
25
Id.
26
Gardner, supra note 5; Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541
(2015); Money, supra note 4.
- 628 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
or she was trained or was accustomed to performing or (2) the
worker cannot earn wages for any other kind of work which a
person of his or her mentality and attainments could do.27
Carlson had a high school education, and her prior work
experience was in vocations which required significant mobil-
ity and which were incompatible with the lifelong restrictions
imposed upon her as a result of her work-related injury. She
was approximately 62 years old at the time of her stroke.
Carlson had a mild intellectual disability and her full-scale IQ
was 69.
[21] We have observed that a worker’s earning power after
a physical injury is often constricted by mental capacity and
education, and “‘“it is a matter of common observation that
a [worker] whose sole stock in trade has been the capacity
to perform physical movements, and whose ability to make
those movements has been impaired by injury, is under a
severe disadvantage in acquiring a dependable new means of
livelihood.”’”28 Here, the record contains medical evidence
detailing permanent and significant restrictions that resulted
from Carlson’s work injury, as well as information about her
work history, education, and mental and physical abilities.
[22] If the record contains evidence to substantiate the
factual conclusions reached by the trial judge in workers’
compensation cases, an appellate court is precluded from sub-
stituting its view of the facts for that of the compensation
court.29 Considering the evidence in the light most favorable to
Carlson, we find the record supports the compensation court’s
determination that as of October 8, 2015, she was perma-
nently and totally disabled as a result of her work accident of
February 17, 2013.
27
See id. See, also, Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829
N.W.2d 113 (2013).
28
Money, supra note 4, 275 Neb. at 621, 748 N.W.2d at 65.
29
Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).
- 629 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
3. Effect of Stroke on Benefits
Finally, Five Star argues that even if Carlson reached maxi-
mum medical improvement before the date of her stroke and
was permanently and totally disabled at that time, the subse-
quent stroke left her completely incapacitated and unable to
care for herself. Five Star therefore asks us to conclude the
stroke “cut off ”30 Carlson’s entitlement to permanent total dis-
ability benefits.
[23] We have not previously considered whether an
employee who has a compensable permanent total disability
can, consistent with the Nebraska Workers’ Compensation Act,
be deprived of ongoing total disability benefits because of a
subsequent noncompensable injury that independently causes
permanent disability. We conclude this presents a question
of law.
The only legal support Five Star offers for its position that
Carlson’s permanent total disability benefits should end after
her stroke is a single sentence in § 48-121(1). Section 48-121(1)
sets out the schedule of compensation for total disability, and
provides: “Nothing in this subdivision shall require payment of
compensation after disability shall cease.” Five Star’s theory
is that the permanent total disability caused by Carlson’s work
injury “ceased” on the date of her stroke, apparently reason-
ing that if she had not already been permanently and totally
disabled from the work accident, the stroke would have ren-
dered her so. Five Star suggests Carlson’s permanent total
disability was either subsumed, or canceled out, by the effects
of her subsequent stroke. It analogizes the situation to the non-
work-related death of an employee receiving permanent total
disability payments and suggests that if “Carlson had passed
away from complications to her stroke, her entitlement to . . .
permanent and total disability benefits would be cut off on the
date of her unfortunate passing.”31
30
Brief for appellants at 27.
31
Id.
- 630 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
We do not find this death analogy to be factually or legally
supported. Carlson survived her stroke, and we see noth-
ing in the record to support Five Star’s contention that her
work-related disability ceased once she had the stroke. To the
contrary, the evidence supports that she was permanently and
totally disabled from a work accident injury at the time she had
her stroke, and she remained so afterward. Because Carlson’s
permanent total disability did not cease as a result of the
stroke, Five Star’s reliance on § 48-121(1) is misplaced.
Although Five Star has not framed its argument as one seek-
ing to modify an award, Five Star basically seeks to terminate
Carlson’s award of permanent total disability benefits due
solely to her subsequent stroke. Nebraska’s workers’ compen-
sation statutes allow an award to be modified “on the ground
of increase or decrease of incapacity due solely to the injury.”32
But Five Star is claiming the change in disability was due to
the stroke, not the work injury, so the modification statute does
not support Five Star’s requested relief either.
[24] The Nebraska Workers’ Compensation Act should be
construed liberally to carry out its spirit and beneficent pur-
poses.33 Five Star’s position is contrary to the beneficent
purpose of the act, because it would result in Carlson’s entitle-
ment to permanent total disability benefits for a work-related
injury being cut off by a completely unrelated event.
Five Star directs us to no cases from this jurisdiction or
elsewhere that support its position. There is very little prec-
edent on this issue, but a few other courts have considered and
rejected the suggestion that an employee’s permanent total dis-
ability benefits can be canceled out if the employee suffers a
subsequent independent injury that also causes disability.
Kentucky addressed a factual situation similar to the
instant case in Beth-Elkhorn Corporation v. Dotson.34 In
32
Neb. Rev. Stat. § 48-141 (Reissue 2010) (emphasis supplied).
33
Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).
34
Beth-Elkhorn Corporation v. Dotson, 428 S.W.2d 32 (Ky. App. 1968).
- 631 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
that case, the worker had been a coal miner for more than
40 years when he suffered a heart attack after finishing his
workday. Medical evidence established that the worker suf-
fered from pneumo­ coniosis as a result of his employment
and that the pneumoconiosis left him permanently and totally
disabled. Medical evidence also established that the non-
work-related heart attack left the worker totally disabled. The
court affirmed an award of total disability benefits, reasoning
that “‘any disability an employe[e] sustains in the course of
and arising out of his employment shall [not] be cancelled
out, for compensation purposes, by disability from another
cause.’”35 This rationale was based on Daugherty v. Watts,36
an earlier case decided by the Kentucky Court of Appeals.
Daugherty expressly held that “if a workman has suffered a
compensable injury he will not be deprived of compensation
merely because of the existence of an independent, concurrent
cause of disability.”37
[25] One legal commentator has cited to Daugherty for the
following general proposition:
Where it is shown that a worker has a condition attrib-
utable to his or her employment that alone would totally
disable him or her, it is immaterial for the purposes of
the workers’ compensation statute[s] that he or she may
suffer from other independent and concurrent ailments
which would by themselves be sufficient to disable him
or her.38
This proposition is consistent with the beneficent purpose of
the Nebraska Workers’ Compensation Act.
Carlson was permanently and totally disabled as a result of
a work accident and injury. The fact that she subsequently suf-
fered a stroke that was neither medically nor causally related,
35
Id. at 34.
36
Daugherty v. Watts, 419 S.W.2d 137 (Ky. App. 1967).
37
Id. at 138.
38
82 Am. Jur. 2d Workers’ Compensation § 353 at 383-84 (2013).
- 632 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
KRAUSE v. FIVE STAR QUALITY CARE
Cite as 301 Neb. 612
does not relieve Five Star of its obligation to pay Carlson per-
manent total disability benefits under the Nebraska Workers’
Compensation Act.
V. CONCLUSION
For the foregoing reasons, the compensation court did not
err in finding Carlson (1) reached maximum medical improve-
ment on October 8, 2015; (2) was permanently and totally
disabled as of that date as a result of her work-related accident;
and (3) remained permanently and totally disabled as a result
of her work-related accident after her stroke. We affirm the
judgment of the compensation court.
A ffirmed.