Parks v. Hy-Vee

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/18/2020 08:13 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
Donna Parks, appellee, v.
Hy-Vee, Inc., appellant.
___ N.W.2d ___
Filed December 4, 2020. No. S-20-195.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when
(1) the compensation court acted without or in excess of its powers; (2)
the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensa-
tion court do not support the order or award.
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. 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.
4. Workers’ Compensation. As the trier of fact, the Workers’ Compensation
Court is the sole judge of the credibility of witnesses and the weight to
be given their testimony.
5. Workers’ Compensation: Appeal and Error. An appellate court is
obligated in workers’ compensation cases to make its own determina-
tions as to questions of law.
6. Actions: Appeal and Error. The law-of-the-case doctrine reflects the
principle that an issue litigated and decided in one stage of a case should
not be relitigated at a later stage.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
7. Stipulations. In Nebraska, parties are free to make stipulations that gov-
ern their rights, including the issues to be decided, and such stipulations
will be respected and enforced by courts so long as the agreement is not
contrary to public policy or good morals.
8. Workers’ Compensation. A preexisting disease and an aggravation of
that disease may combine to produce a compensable injury.
9. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
10. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
11. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
Paul T. Barta and Micah C. Hawker-Boehnke, of Baylor
Evnen, L.L.P., for appellant.
Travis Allan Spier and Nolan Niehus, Senior Certified Law
Student, of Atwood, Holsten, Brown, Deaver & Spier Law
Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ.
Papik, J.
Donna Parks incurred a work-related injury in 2008 while
employed by Hy-Vee, Inc., and sought workers’ compensation
benefits. The initial award granted compensation for past and
future medical expenses for her low-back injury but found that
she had not reached maximum medical improvement (MMI). It
did not address aggravation of Parks’ mental health issues.
In 2017, following the filing of motions by both parties,
the parties stipulated to the compensation court’s resolution of
several issues. After a trial, the compensation court resolved
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
those issues and entered a further award. Relying on expert
opinions, the compensation court granted Parks compensa-
tion for chronic pain and aggravation of her mental health
issues, both caused by the work-related low-back injury. The
compensation court later modified the further award upon
Parks’ motion pursuant to Neb. Rev. Stat. § 48-180 (Cum.
Supp. 2018).
Hy-Vee now appeals, alleging that the compensation court
failed to properly apply the law-of-the-case doctrine and
exceeded its power in modifying the further award. Finding no
merit to Hy-Vee’s arguments, we affirm.
BACKGROUND
Injury and Initial Award.
In 2008, Parks was working in the Hy-Vee floral department
when she was partially pulled into a trash compactor while
emptying a heavy bin. In 2010, she sought workers’ compensa-
tion benefits for injuries she claimed to have incurred.
At trial on the matter, the compensation court received evi-
dence that Parks had sustained a work-related low-back injury.
Further, Parks testified on direct examination that she was not
claiming an aggravation of preexisting mental health issues as
a result of the work accident. She further testified that her state
of mind had been stable since she began working for Hy-Vee in
2004. Parks did not seek temporary disability benefits, because
she was employed by Hy-Vee at the time of trial.
The compensation court determined that Parks suffered a
compensable low-back injury during her employment with
Hy-Vee. It did not address Parks’ mental health issues. The
award concluded that Parks had not reached MMI regarding
her low-back injury and made no finding as to permanent loss
of earning power or entitlement to vocational rehabilitation
services. It ordered Hy-Vee to pay past and future medical
expenses reasonably necessary for evaluation and nonsurgical
treatment of the low-back injury.
Thereafter, Parks received regular and varying treatment
for her compensable low-back injury, but she continued to
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
experience pain. In 2012, her treating physician, Dr. Daniel
M. Wik, recommended implanting a spinal cord stimulator. In
2014, Wik and an orthopedic surgeon agreed that Parks had
reached MMI, and she was assigned work restrictions. Shortly
thereafter, a functional capacity evaluation by the agreed-upon
vocational rehabilitation counselor concluded that Parks was
permanently and totally disabled. Hy-Vee voluntarily paid per-
manent partial disability benefits from 2014 until 2018.
Subsequent Motions.
Meanwhile, in 2017, Parks filed a motion to enforce the
award. She requested that Hy-Vee pay for or authorize (1) a
psychological evaluation to determine her candidacy for a spi-
nal cord stimulator, (2) a back brace and massage therapy, and
(3) various medications. Parks also sought medical expenses
incurred after April 28, 2011, permanent disability benefits,
and vocational rehabilitation.
Hy-Vee subsequently filed a petition for modification of the
award. It asserted, among other things, that after the initial
award, Parks had alleged she suffered a compensable mental
health injury that Hy-Vee disputed, and that she was not totally
disabled. In response, Parks filed an answer admitting that she
was alleging a mental health injury and requesting that the
compensation court dismiss Hy-Vee’s petition for modifica-
tion for failure to state a claim because Hy-Vee sought judicial
determinations on MMI and disability status, issues not previ-
ously ruled upon by the compensation court.
Evidence at Trial.
The parties presented evidence at a consolidated trial to
determine the extent and nature of Parks’ compensable dis-
ability and associated expenses. Prior to the trial, the par-
ties stipulated the issues to be resolved. Relevant here, those
issues included (1) whether the work accident caused Parks
to have chronic pain or a chronic pain syndrome, (2) whether
the work accident aggravated her preexisting mental health
issues, (3) whether medical and mileage expenses identified
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
in exhibit 69 were reasonable and necessary for treatment of
Parks’ work-related conditions, (4) the extent of Parks’ perma-
nent disability resulting from the work-related injuries, and (5)
“any additional benefits the [c]ourt deems warranted based on
evidence at the time of hearing.” The parties also stipulated
that Parks had reached MMI on March 3, 2014, regarding her
low-back injury and associated lower extremity symptoms.
Parks presented evidence that her chronic pain was caused
by the work accident. Parks had received treatment from Wik
monthly since 2010 for persistent low-back pain. In 2011, Wik
attributed Parks’ low-back pain to the work injury. In 2018,
Wik reported that it remained his opinion that all of Parks’ low-
back diagnoses were caused by the work accident.
Parks also presented the report of Dr. Dennis P. McGowan, a
spine surgeon who examined her in March 2019. He diagnosed
Parks with “[s]prain to low back caused by 6/2/2008 work
injury with continuous disabling low back pain.”
Parks testified that she had experienced constant and vary-
ing degrees of low-back pain since the accident. The pain
radiated down her legs and involved some numbness and tin-
gling in her right leg and foot. Parks acknowledged significant
struggles with her mental health in the past, particularly after
her husband suffered an aneurysm in 1990. At that time, Parks
was hospitalized for what she called a nervous breakdown.
Parks testified that as a result, she obtained Social Security
disability benefits. Parks testified that when she started work-
ing for Hy-Vee in 2004, she was off those disability benefits
and her physical and mental health were good. She stated that
she was happy to be working and that it was a good point in
her life. Other than Parks’ testimony about a cut to her finger,
there is no evidence that Parks received medical treatment
from 2004 to 2008. Parks testified about her efforts to remain
employed in some form after her work accident, within her
physical restrictions.
Contrary to Parks, Hy-Vee posited that Parks’ chronic pain
was caused by a somatic symptom disorder or psychological
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
disorder unrelated to the work accident. It presented the
February 2017 report of Dr. Terry Davis, a psychiatrist who
conducted a psychiatric evaluation and mental status exami-
nation and reviewed a chronology of Parks’ medical records
and the records produced by Wik. He opined that all of Parks’
current pain was the result of a preexisting somatic symp-
tom disorder that was not caused or aggravated by the work
accident. Davis described the disorder as a state in which
psychological factors initiate, exacerbate, or maintain bodily
symptoms. That is, Parks’ ongoing back pain complaints were
most likely psychogenic and not due to any physical, medical,
anatomical, or physiologic cause. He noted that Parks had a
history of serious emotional and psychological problems that
predated the 2008 work accident and included somatic symp-
toms as early as 1990. Davis explained that a somatic episode
can be brought about unconsciously to manipulate or control
relationships, express emotions, or cope with stress. Because
of his opinion that Parks’ back pain was psychogenic and due
to the subjective nature of her complaints, Davis concluded
that Parks’ symptoms were unlikely to respond to any medical
or physical treatment, including a spinal cord stimulator.
Dr. John R. Massey conducted a medical examination of
Parks in September 2018 and reviewed Davis’ evaluation. He
agreed with Davis’ opinion that Parks’ pain was caused by a
somatic symptom disorder rather than the work accident.
The parties also presented evidence regarding the causal
connection between Parks’ mental health issues and the work
accident. Parks’ evidence showed that her mental health issues
were exacerbated by the low-back injury she incurred at work
in 2008. In her testimony, Parks acknowledged that she was
diagnosed with depression, anxiety, and posttraumatic stress
disorder in the 1990’s, but, as noted above, she testified that
her mental health had stabilized before she began working for
Hy-Vee and that it continued to be stable through the initial
trial. However, Parks testified that her mental health changed
when Hy-Vee denied coverage for the spinal cord stimulator
and she had “no hope for any other treatment.”
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
In February 2017, Wik, who consistently attributed Parks’
low-back pain to the work accident, diagnosed Parks with
“anxiety due to chronic low back pain.” In January 2019,
Parks began treatment with Dr. Dianna M. Clyne, a psychia-
trist. Parks reported to Clyne that her low-back pain made her
depression and anxiety worse. Clyne reviewed Parks’ medi-
cal documentation, including that of her previous psychiatric
hospitalizations. She diagnosed Parks with depressive disorder
and anxiety disorder, which she attributed to the work injury
and low-back pain. According to Clyne, Parks was at MMI for
her depression and anxiety, at least until her low-back condi-
tion improved. In March 2019, McGowan reported that Parks’
preexisting psychiatric conditions were not related to the work
accident, but a few months later, he opined that Parks’ pre­
existing anxiety and depression had worsened as a result of the
work-related low-back injury.
Hy-Vee denied any causal connection between the work acci-
dent and Parks’ depression and anxiety. As explained above,
Hy-Vee presented opinion evidence that Parks’ chronic pain,
which Parks identified as the source of her worsening anxiety
and depression, was not caused by the work accident but by a
somatic symptom disorder. Further, Davis specifically opined
that Parks did not suffer from any psychological symptoms or
injury that was caused by or exacerbated by the work accident.
He noted that Parks suffered from depression and anxiety for
many years before the work accident.
Exhibit 69 set forth medical expenses that Parks alleged
were work related. The parties stipulated that exhibit 69 accu-
rately reflected the total billed charges, third-party payments,
and writeoffs; Parks’ out-of-pocket expenditures and mileage
incurred; and the outstanding balances as set forth in itemized
billing statements from providers. Parks’ testimony did not
specifically request compensation for the expenses itemized
in exhibit 69, and according to statements in posttrial orders
made by the compensation court, nor did her counsel’s written
closing arguments.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
Further Award.
Following trial, the compensation court dismissed with prej-
udice Hy-Vee’s petition for modification and entered a further
award. It awarded Parks permanent total disability benefits but
denied vocational rehabilitation.
The compensation court found that while the evidence did
not show that Parks had a chronic pain syndrome, it sup-
ported a finding of chronic pain caused by the work accident.
In analyzing the issue, the compensation court concluded that
the opinions of Davis and Massey violated the law-of-the-
case doctrine and “should be rejected for that reason alone,”
but additionally observed that even “[p]utting aside the legal
problem with [Hy-Vee’s] position,” it found Parks’ witnesses
more persuasive on the issue than Hy-Vee’s. In particular,
the compensation court noted that it was not persuaded by
the opinions of Davis and Massey that Parks’ pain was psy-
chogenic in nature and noted that it was persuaded by Wik’s
opinion that Parks was suffering physical pain caused by her
work accident. The compensation court also cited the opinion
of McGowan, who had diagnosed Parks with a work-related
low-back sprain “with continuous disabling low back pain.”
Further, the compensation court found Parks’ testimony about
her pain credible and observed that she had sought treatment
for her pain and continued to work. In the court’s view, these
factors demonstrated that Parks suffered “actual physical pain
caused by her work accident,” not pain caused by a somatic
symptom disorder.
As to Parks’ depression and anxiety, the compensation court
again relied on the opinion of Wik, whose office notes showed
a causal connection between Parks’ depression and anxiety,
her work accident, and her low-back pain. The compensation
court also noted McGowan’s opinion that Parks’ depression
and anxiety were worsened by the work-related low-back
injury and Clyne’s opinion that her depression and anxiety
were exacerbated by it. Further, the compensation court relied
on Parks’ own testimony that her depression and anxiety were
made worse by her pain. It again rejected Hy-Vee’s assertion,
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
based on Davis’ opinion, that Parks suffered from a somatic
symptom disorder and that her depression and anxiety were
not caused or exacerbated by the work accident.
Finally, the compensation court awarded Parks the mile-
age expenses identified in exhibit 69. It noted that exhibit
69 also identified medical expenses, but it did not include
those expenses in the further award. The compensation court
expressed confusion about whether Parks sought an order
directing Hy-Vee to reimburse her for medical expenses. It
noted that in her testimony, Parks had not asked the compensa-
tion court to order that she be reimbursed for those expenses,
and that Parks’ counsel had not mentioned the medical expenses
identified in exhibit 69 in written closing arguments.
Modification of Further Award.
Less than a week after the further award, Parks filed a
motion to modify it pursuant to § 48-180. Parks sought past
medical expenses identified in exhibit 69, which were not part
of the further award.
At the hearing on the motion, the compensation court
explained that there was no failure of proof as to compensabil-
ity for the medical expenses at issue. Instead, the court stated
it had not awarded compensation for the medical expenses
because Parks had not explicitly asked for it in her testimony
or written closing arguments.
The compensation court modified the further award to
include all of the medical expenses identified in exhibit 69 and
ordered Hy-Vee to pay providers for outstanding balances and
reimburse anyone who had already paid the providers, includ-
ing Parks.
Hy-Vee appeals.
ASSIGNMENTS OF ERROR
Hy-Vee assigns, consolidated and renumbered, that the com-
pensation court erred in (1) applying the law-of-the-case doc-
trine to disregard the somatic symptom disorder diagnosis and
relying on that determination to reject every argument made
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307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
by Hy-Vee, (2) failing to apply the law-of-the-case doctrine to
Parks’ alleged mental health injury, and (3) using § 48-180 to
correct a mistake made by Parks’ counsel.
STANDARD OF REVIEW
[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation
court acted without or in excess of its powers; (2) the judg-
ment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the mak-
ing of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d
765 (2020).
[2,3] 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. In testing the sufficiency of the evidence to support
the findings of fact in a workers’ compensation case, an appel-
late 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. Id.
[4] As the trier of fact, the Workers’ Compensation Court is
the sole judge of the credibility of witnesses and the weight to
be given their testimony. Id.
[5] An appellate court is obligated in workers’ compensa-
tion cases to make its own determinations as to questions of
law. Frans v. Waldinger Corp., 306 Neb. 574, 946 N.W.2d
666 (2020).
ANALYSIS
Chronic Pain.
We begin our analysis with Hy-Vee’s argument that the com-
pensation court erred in finding that Parks’ chronic low-back
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307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
pain was caused by her work injury and not a somatic symp-
tom disorder. Hy-Vee claims that the compensation court
entirely based its finding on an incorrect application of the
law-of-the-case doctrine. We are not persuaded.
[6] The law-of-the-case doctrine reflects the principle that
an issue litigated and decided in one stage of a case should
not be relitigated at a later stage. Gardner v. International
Paper Destr. & Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015).
The compensation court concluded this doctrine precluded it
from relying on the opinions of Davis and Massey that Parks’
chronic pain resulted from a somatic symptom disorder. The
compensation court viewed these opinions as contradictory
to the initial award’s finding that Parks had injured her lower
back in the work accident. Hy-Vee asserts that nothing in the
opinions of Davis or Massey calls the work injury itself into
question and that thus, the compensation court erroneously
based its rejection of a somatic symptom disorder on the law-
of-the-case doctrine.
But while the compensation court relied on the law-of-the-
case doctrine as a basis for finding that a somatic symptom
disorder was not the cause of Parks’ pain, that was not the only
basis upon which it relied. After analyzing the law-of-the-case
doctrine as it related to the opinions of Davis and Massey and
stating that their opinions “should be rejected for that reason
alone,” the compensation court went on to say that even if the
“legal problem” posed by the law-of-the-case doctrine were
set to the side, it was not persuaded by Davis and Massey that
Parks’ pain was caused by a somatic symptom disorder. The
compensation court then explained why it was not persuaded
by Davis and Massey and why it was persuaded by Wik that
Parks was suffering from pain due to her work-related low-
back injury. The compensation court thus made a factual find-
ing, independent of any of its legal conclusions regarding the
law-of-the-case doctrine, that Parks’ pain was caused by her
work-related low-back injury.
Given the compensation court’s independent factual find-
ing regarding the cause of Parks’ pain, we need not consider
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307 Nebraska Reports
PARKS v. HY-VEE
Cite as 307 Neb. 927
Hy-Vee’s law-of-the-case argument so long as the compensa-
tion court’s factual finding was not clearly erroneous. We agree
with Parks that it was not. In support of its factual finding, the
compensation court cited the opinion of Wik, who attributed
Parks’ current low-back pain to the work accident. The com-
pensation court acknowledged that this opinion conflicted with
the opinions of Davis and Massey but expressly found Wik
more persuasive. Hy-Vee is critical of this finding, but it was a
credibility determination that the compensation court alone was
entitled to make. See Aboytes-Mosqueda v. LFA Inc., 306 Neb.
277, 944 N.W.2d 765 (2020). The compensation court further
relied on the report of McGowan, who in 2019 diagnosed Parks
with “[s]prain to low back caused by 6/2/2008 work injury
with continuous disabling low back pain.” This evidence was
sufficient to support the compensation court’s factual determi-
nation that Parks’ chronic low-back pain was caused by her
work accident.
Reading the further award and the record as a whole, we
conclude that the evidence was sufficient to support the com-
pensation court’s factual finding that Parks’ chronic low-back
pain resulted from her work accident, as well as the portions
of the further award, as modified, stemming from that deter-
mination, including the conclusion that Parks was entitled to
coverage for various treatments and the expenses set forth in
exhibit 69.
Aggravation of Depression and Anxiety.
In challenging the compensation awarded for Parks’ depres-
sion and anxiety, Hy-Vee again turns to the law-of-the-case
doctrine. But this time Hy-Vee assigns that the compensa-
tion court should have applied the doctrine to bar Parks from
receiving compensation for an aggravation of her preexisting
depression and anxiety. In large part, Hy-Vee argues that the
compensation court violated the law-of-the-case doctrine by
making determinations that it could not make in modifying
the initial award. As we will explain, however, we do not
agree that the court entered a modification order and Hy-Vee’s
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PARKS v. HY-VEE
Cite as 307 Neb. 927
reliance on the law-of-the-case doctrine is misplaced. Further,
contrary to Hy-Vee’s assertions otherwise, the compensation
court’s award of compensation for an aggravation of Parks’
mental health issues was supported by the evidence.
We first address Hy-Vee’s argument that the procedural
posture of this case precluded Parks from receiving compensa-
tion for an aggravation of her depression and anxiety. Hy-Vee
classifies the further award as a modification order pursuant
to Neb. Rev. Stat. § 48-141(2) (Reissue 2010). According to
Hy-Vee, even if Parks’ mental health conditions worsened after
the initial award, it was not within the scope of a modification
order to award compensation for that change in her condition,
because it represented a “completely new” injury. Reply brief
for appellant at 11.
Section 48-141 provides that “the amount of any agreement
or award payable periodically may be modified” upon an appli-
cation of a party “(2) . . . on the ground of increase or decrease
of incapacity due solely to the injury.” To establish a change
in incapacity as the term is used in § 48-141, an applicant
must show a change in impairment and a change in disability;
impairment refers to a medical assessment whereas disability
relates to employability. See Rader v. Speer Auto, 287 Neb.
116, 841 N.W.2d 383 (2013), citing Jurgens v. Irwin Indus.
Tool Co., 20 Neb. Ct. App. 488, 825 N.W.2d 820 (2013).
The procedural history of this case demonstrates that the fur-
ther award was not a modification order pursuant to § 48-141.
The initial award made no determinations regarding the degree
and duration of Parks’ disability; nor did it award periodic
payments. Hy-Vee subsequently paid some periodic benefits
by agreement for a time, but those payments ceased before the
trial that produced the further award. In the meantime, Parks
filed her motion to enforce the award, raising several issues
disputed between the parties, and Hy-Vee filed its motion to
modify. In response, Parks asked that Hy-Vee’s motion to mod-
ify be dismissed for failure to state a claim, because Hy-Vee
sought judicial determinations on issues not previously ruled
upon by the compensation court.
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PARKS v. HY-VEE
Cite as 307 Neb. 927
The parties thereafter stipulated that the compensation court
should consider whether Parks’ work-related low-back injury
caused chronic pain; whether Parks’ work-related low-back
injury and resulting chronic pain aggravated her preexisting
mental health conditions; and whether, having reached MMI,
she was permanently disabled, along with “any additional ben-
efits the [c]ourt deems warranted based on evidence at the time
of the hearing.” The court tried these issues, among others, at
a consolidated trial. These issues were aimed at determining
the degree and duration of Parks’ disability for the first time.
Because they had not yet been determined and there was no
agreement pertaining to them in effect, there was no “agree-
ment or award” regarding “incapacity” for the compensation
court to modify. See § 48-141(2). Indeed, the further award
recognized as much by dismissing Hy-Vee’s motion to modify
the initial award, with prejudice.
Hy-Vee maintains that Parks could obtain compensation for
the aggravation of her mental health conditions only by filing
a “new petition for this newly emerged claim.” Reply brief
for appellant at 12. But Neb. Rev. Stat. § 48-162.03(1) (Cum.
Supp. 2018) grants the compensation court broad authority to
rule on any motion except motions for new trial. The requests
for relief that prompted the further award—Parks’ motion to
enforce the award, Hy-Vee’s motion to modify the award, and
Parks’ prayer for dismissal of Hy-Vee’s motion to modify—
were all related to that pending case and “encompassed by the
motion practice under the broad language of § 48-162.03(1).”
See Fentress v. Westin, Inc., 304 Neb. 619, 630, 935 N.W.2d
911, 921 (2019). No new petition was necessary.
[7] Further, Hy-Vee stipulated that the compensation court
could decide whether the work accident aggravated Parks’
preexisting mental health issues. Hy-Vee is thus now asking
us to find that the compensation court erred in taking up an
issue that the parties stipulated it should resolve. However,
we have said that in Nebraska, parties are free to make
stipulations that govern their rights, including the issues to
be decided, and that such stipulations will be respected and
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PARKS v. HY-VEE
Cite as 307 Neb. 927
enforced by courts so long as the agreement is not contrary
to public policy or good morals. See Archer Daniels Midland
Co. v. State, 290 Neb. 780, 861 N.W.2d 733 (2015). In this
case, we see nothing to persuade us that the compensation
court erred in honoring the parties’ stipulations regarding the
issues to be decided.
Hy-Vee contends that whatever the parties’ stipulations,
they did not authorize the compensation court to disregard the
law-of-the-case doctrine. Hy-Vee argues the doctrine applies
here because the compensation court did not find in its initial
award that Parks’ mental health was affected by the work acci-
dent. According to Hy-Vee, this precludes the compensation
court from considering the issue. As we have noted, however,
the doctrine reflects the principle that an issue litigated and
decided in one stage of a case should not be relitigated at a
later stage. Gardner v. International Paper Destr. & Recycl.,
291 Neb. 415, 865 N.W.2d 371 (2015). See, also, 18B Charles
Alan Wright et al., Federal Practice and Procedure § 4478 at
628 (5th ed. 2019) (“[a]ctual decision of an issue is required
to establish the law of the case”; “[l]aw of the case does not
reach a matter that was not decided”). Here, the question of
whether Parks had suffered an aggravation of her depression
and anxiety as a result of her work-related low-back injury
was not litigated and decided in the initial trial. Parks did not
assert any mental health injuries at that time, and therefore, the
initial award made no finding pertaining to the matter. Hy-Vee
is thus mistaken that the law-of-the-case doctrine precluded the
compensation court from finding compensable mental health
injuries in the further award.
Lastly, Hy-Vee contends that the compensation court erred
in determining that Parks’ aggravated mental health condition
was caused by the work accident, contrary to the opinions
of Davis upon which Hy-Vee based much of its evidence.
However, the compensation court made credibility determi-
nations, discounted Davis’ hypotheses, and relied on Parks’
evidence, all of which were within its authority to do. See
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Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765
(2020). And Parks’ evidence regarding her mental health was
sufficient to support the compensation court’s award.
Parks herself acknowledged her preexisting mental health
issues, but said they had stabilized before the accident. Parks
testified that her mental health condition continued to be stable
until after the initial trial, when Hy-Vee denied coverage for
the spinal cord stimulator and she had “no hope” for other
treatment of her chronic low-back pain. In 2017, Wik, who
attributed Parks’ low-back pain to the work accident, diag-
nosed Parks with anxiety due to chronic low-back pain. And
in 2019, Parks reported to Clyne that her low-back pain made
her depression and anxiety worse. Clyne diagnosed Parks with
depression and anxiety disorders due to the work injury and
low-back pain. A few months later, McGowan opined that
Parks’ preexisting anxiety and depression had worsened as a
result of the work-related low-back injury.
[8] A preexisting disease and an aggravation of that disease
may combine to produce a compensable injury. Manchester v.
Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009). To be
compensable, a subsequent injury or aggravation related to the
primary injury must be a direct and natural result of the work
accident. See Sweeney v. Kerstens & Lee, Inc., 268 Neb. 752,
688 N.W.2d 350 (2004). Parks’ evidence demonstrated such a
direct and natural connection: Her evidence showed that the
aggravation of her depression and anxiety was caused by her
work-related low-back injury. Accordingly, the compensation
court did not err in finding it compensable.
Section 48-180 Modification.
Finally, Hy-Vee claims that the compensation court exceeded
the authority granted to it in § 48-180 by modifying the further
award to make Hy-Vee responsible for all of the expenses
listed in exhibit 69. Section 48-180 provides:
The Nebraska Workers’ Compensation Court may, on
its own motion or on the motion of any party, modify
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or change its findings, order, award, or judgment at any
time before appeal and within fourteen days after the date
of such findings, order, award, or judgment. The time for
appeal shall not be lengthened because of the modifica-
tion or change unless the correction substantially changes
the result of the award.
Before addressing Hy-Vee’s argument, we briefly note some
relevant history regarding § 48-180. Prior to a 2011 amend-
ment, § 48-180 authorized modification by the compensation
court, but only “for the purpose of correcting any ambiguity,
clerical error, or patent or obvious error.” See 2011 Neb. Laws,
L.B. 151, § 11. In its earlier form, § 48-180 was understood as
a “statutory embodiment of nunc pro tunc principles.” Walsh
v. City of Omaha, 11 Neb. Ct. App. 747, 755, 660 N.W.2d 187,
194 (2003). As a result of the 2011 amendment, the compensa-
tion court’s authority to modify previously entered findings,
orders, awards, and judgments is no longer limited to nunc pro
tunc orders. See Carr v. Ganz, 26 Neb. Ct. App. 14, 916 N.W.2d
437 (2018).
Hy-Vee acknowledges that the 2011 amendment to § 48-180
expanded the compensation court’s modification authority, but
contends that the compensation court nonetheless lacked the
authority to modify the further award here. Hy-Vee argues
that in its current form, § 48-180 authorizes the compensation
court to make substantive modifications to its prior rulings, but
only to correct its own mistakes, not to remedy a mistake or
oversight of a party. Hy-Vee contends that the compensation
court did not initially award compensation for all of the medi-
cal expenses identified in exhibit 69 because Parks failed to
specifically request such relief and that the compensation court
could not, under Hy-Vee’s understanding of § 48-180, remedy
her failure to do so.
In response to Hy-Vee’s argument, we observe initially that
the modification at issue is not, in our view, easily catego-
rized as a correction of a mistake or oversight on the part of
Parks. The compensation court stated that it did not initially
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include all of the medical expenses identified in exhibit 69
in the further award because Parks did not, in her testimony,
express a desire to be reimbursed for medical bills and because
the written closing arguments submitted by her counsel also
did not specifically request such reimbursement. Hy-Vee does
not, however, point us to any procedural rule or other legal
authority that required such a request from Parks. Neither are
the written closing arguments at issue a part of our record on
appeal. Furthermore, the parties stipulated prior to trial that
one of the issues to be determined was “[w]hether medical and
mileage expenses identified in Trial Exhibit 69 were reasonable
and necessary for treatment of [Parks’] work-related injuries/
conditions.” And, as the compensation court stated in its modi-
fication order, it did not omit the medical bills identified in
exhibit 69 from its initial further award because Parks failed
to prove an entitlement to compensation for them. Although
the compensation court may not have initially understood that
Parks was seeking compensation for all of the medical bills
identified in exhibit 69, given the foregoing facts, we have
doubts about whether that can be attributed to a mistake or
oversight of Parks.
In any event, we need not decide whether Parks or the com-
pensation court is to blame for the initial omission from the fur-
ther award of the medical bills identified in exhibit 69. Such an
assignment of fault is not necessary, because the compensation
court’s modification authority under § 48-180 does not turn on
whether modification is being made to correct a mistake of the
court or of a party. We reach this conclusion through applica-
tion of familiar principles of statutory interpretation.
[9-11] When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language,
understood in context. Rogers v. Jack’s Supper Club, 304 Neb.
605, 935 N.W.2d 754 (2019). Statutory language is to be given
its plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous. Id. It is not
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within the province of the courts to read meaning into a statute
that is not there or to read anything direct and plain out of a
statute. Id.
Hy-Vee’s argument that § 48-180 authorizes modification
only to correct an error made by the court cannot survive an
application of these principles. The text of § 48-180 does not
differentiate between “mistakes” made by the court and those
made by parties. Indeed, it does not mention “mistakes” or a
similar concept at all. Nor does it otherwise limit the reasons
for which a compensation court may modify its findings, order,
award, or judgment: Under § 48-180, the court may do so “on
its own motion or on the motion of any party.” The interpreta-
tion advanced by Hy-Vee thus requires that meaning not found
in the text of § 48-180 be read into the statute. We do not inter-
pret statutes in this manner. See, e.g., State v. Garcia, 301 Neb.
912, 920 N.W.2d 708 (2018).
Unable to make an argument in support of its preferred
interpretation based on the statutory text, Hy-Vee resorts to the
absurd results doctrine. Under that doctrine, a court may devi-
ate from the plain language of the statutory text if application
of the plain language would lead to “‘manifest absurdity.’”
See Rogers v. Jack’s Supper Club, supra, 304 Neb. at 613, 935
N.W.2d at 761, quoting Anthony, Inc. v. City of Omaha, 283
Neb. 868, 813 N.W.2d 467 (2012). But the bar of manifest
absurdity is not easily cleared. We have refused to apply the
doctrine if the result dictated by the plain language is not “so
absurd that the Legislature could not possibly have intended
it.” Thomas v. Peterson, ante p. 89, 97, 948 N.W.2d 698, 705
(2020), citing Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 234-39 (2012). See,
also, Blank v. Blank, 303 Neb. 602, 930 N.W.2d 523 (2019)
(Papik, J., concurring).
Rather than arguing that application of the plain language
will result in an absurd result in this case, Hy-Vee primarily
contends that if its preferred interpretation is not adopted,
there will be absurd results in other cases. Hy-Vee asks us
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to consider various hypothetical scenarios in which parties,
for example, fail to offer key pieces of evidence or fail to
adequately plead the relief sought and then later seek to rem-
edy their failure by asking for modification under § 48-180.
Hy-Vee’s hypothetical scenarios, however, are not before us in
this case.
The question raised by Hy-Vee’s absurdity argument is
whether applying the plain language of § 48-180 to authorize
the modification of the further award under these circumstances
is a result so absurd that the Legislature could not possibly have
intended to allow for it. Hy-Vee comes nowhere near clearing
that high bar. As noted above, the parties stipulated prior to
trial that whether the medical expenses identified in exhibit 69
were reasonable and necessary for treatment of Parks’ work-
related injuries was one of the issues presented for resolution.
There is also no dispute on appeal that Parks adequately proved
at trial that such expenses were, in fact, reasonable and neces-
sary. We see no basis to conclude that the Legislature, in enact-
ing § 48-180, could not possibly have intended to authorize the
compensation court to modify the further award in the manner
it did under these circumstances.
CONCLUSION
We find that the compensation court’s further award was not
premised on legal error, that the record supports the findings of
fact upon which the further award was based, and that the com-
pensation court did not act in excess of its powers in modifying
the further award. Accordingly, we affirm.
Affirmed.
Stacy, J., not participating.