Spratt v. Crete Carrier Corp.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/13/2022 08:07 AM CDT
- 262 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262James R. Spratt, appellant, v. Crete
Carrier Corporation, appellee.
___ N.W.2d ___
Filed March 25, 2022. No. S-21-530.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Reissue 2021), 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 suf-
ficient 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. Workers’ Compensation: Statutes: Appeal and Error. The meaning
of a statute is a question of law, and an appellate court is obligated in
workers’ compensation cases to make its own determinations as to ques-
tions of law.
3. Workers’ Compensation: Appeal and Error. In light of the beneficent
purpose of the Nebraska Workers’ Compensation Act, the appellate
courts have consistently given the act a liberal construction to carry out
justly the spirit of the act.
4. Workers’ Compensation: Judgments: Time: Appeal and Error.
Subject to the power of the Nebraska Workers’ Compensation Court to
modify or change its findings, order, award, or judgment before appeal
and within 14 days after the date of such findings, order, award, or
judgment, every order and award of the compensation court becomes
conclusive and final unless an appeal has been filed within 30 days after
the date of entry of the order or award.
5. Workers’ Compensation: Jurisdiction: Statutes. The Nebraska
Workers’ Compensation Court is a tribunal of limited and special juris-
diction and has only such authority as has been conferred on it by stat-
ute, and its power cannot extend beyond that expressed in the statute.
- 263 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 2626. Workers’ Compensation: Statutes. The Nebraska Workers’ Compen­
sation Court cannot modify an award unless it is statutorily authorized
to do so.
7. Workers’ Compensation. Pursuant to Neb. Rev. Stat. § 48-162.01(7)
(Reissue 2021), where a prior award of the Nebraska Workers’
Compensation Court has provided medical or physical rehabilitation
services, the compensation court may modify the award of such services
to the extent the court finds such modification necessary in order to
accomplish the goal of restoring the injured employee to gainful and
suitable employment, or otherwise required in the interest of justice.
8. Statutes: Appeal and Error. An appellate court is not at liberty to add
language to the plain terms of a statute to restrict its meaning.
9. Actions: Appeal and Error. The law-of-the-case doctrine reflects the
principle that an issue that has been litigated and decided in one stage of
a case should not be relitigated at a later stage.
10. ____: ____. The law-of-the-case doctrine promotes judicial efficiency
and protects parties’ settled expectations by preventing parties from
relitigating settled issues within a single action.
11. Appeal and Error. Generally, absent extraordinary circumstances, a
court should be reluctant to revisit its own prior decision or that of
another court in a single case.
12. Waiver: Appeal and Error. Under the mandate branch of the
­law-of-the-case doctrine, a decision made at a previous stage of litiga-
tion, which could have been challenged in the ensuing appeal but was
not, becomes the law of the case; the parties are deemed to have waived
the right to challenge that decision.
13. ____: ____. An issue is not considered waived under the mandate
branch of the law-of-the-case doctrine if a party did not have both an
opportunity and an incentive to raise it in a previous appeal.
14. Workers’ Compensation: Appeal and Error. On appellate review,
the factual findings made by the trial judge of the Nebraska Workers’
Compensation Court have the effect of a jury verdict and will not be
disturbed unless clearly wrong.
Appeal from the Workers’ Compensation Court: John
R. Hoffert, Judge. Reversed and remanded for further
proceedings.
Brynne Holsten Puhl and Emily T. Newcomb, Senior
Certified Law Student, of Atwood, Holsten, Brown, Deaver,
Spier & Israel Law Firm, P.C., L.L.O.
- 264 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262Brenda S. Spilker and Micah C. Hawker-Boehnke, of Baylor
Evnen, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ., and Martinez, District Judge.
Cassel, J.
I. INTRODUCTION
After obtaining a workers’ compensation award granting
medical rehabilitation services for his lumbar back, James R.
Spratt sought modification to provide such services for his
thoracic back. The compensation court refused—holding that
it lacked statutory authority to do so and that even if the stat-
ute permitted modification, a principle of finality precluded
that relief. Spratt appeals—relying now upon Neb. Rev. Stat.
§ 48-162.01(7) (Reissue 2021). Because the court erred in both
respects, we reverse, and remand for further proceedings.
II. BACKGROUND
We divide the background section into three parts. First,
we recount Spratt’s back injury and his initial medical treat-
ment. We then set forth the Nebraska Workers’ Compensation
Court’s proceedings leading to the original award of medical
rehabilitation services for his lumbar back. Finally, we turn
to the crux of the instant appeal—Spratt’s request that the
compensation court modify the original award to treat his tho-
racic back.
1. Injury and Initial Treatment
In November 2016, Spratt injured his back while working
as a commercial truckdriver for Crete Carrier Corporation
(Crete). Spratt reported severe pain and muscle spasms in his
thoracic and lumbar back.
Spratt was initially diagnosed with a thoracic strain, pre-
scribed medication, and referred to physical therapy. Spratt
could not continue to work as a commercial truckdriver,
because he could not drive for an extended period of time.
- 265 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262Spratt’s back pain and spasms persisted for months after the
injury, so he sought treatment from Dr. Michael Gilmore in
May 2017. Gilmore diagnosed Spratt with spondylosis without
myelopathy or radiculopathy of the lumbosacral region and
pain in the thoracic spine. Gilmore later modified Spratt’s diag-
nosis to be lumbar facet capsulitis.
Crete requested that Spratt receive a second opinion by Dr.
D. Kevin Donahoe. Upon examination, Donahoe diagnosed
Spratt with a thoracic and lumbar strain, which “should be [sic]
resolved since date of injury.”
2. Original Award
Spratt filed a petition in April 2018 with the compensation
court, seeking treatment for his injuries. The compensation
court held a trial on Spratt’s petition in May 2019.
At the trial, Spratt testified and the parties offered Spratt’s
medical records into evidence. Spratt detailed his medical
treatment regarding his injury. Spratt explained that he was still
suffering from back pain and spasms—years after his injury.
Finally, Spratt confirmed that his symptoms still prevented him
from being able to work.
From Spratt’s medical records, the parties offered medi-
cal reports drafted by Gilmore and Donahoe. Both doctors
diagnosed Spratt with a thoracic strain that had since resolved
without any evidence of permanency. Donahoe offered no
further discussion regarding Spratt’s ongoing pain. However,
Gilmore opined that Spratt’s pain continued because of lumbar
facet capsulitis.
In June 2019, the compensation court awarded temporary
benefits to Spratt in order for him to reach maximum medi-
cal improvement (MMI). Adopting portions of Gilmore’s and
Donahoe’s reports, the compensation court found that Spratt
suffered a temporary thoracic strain and that he exacerbated his
preexisting lumbar facets. However, the compensation court
concluded that Spratt’s thoracic strain had resolved and that
therefore, the only medical rehabilitation services that Spratt
- 266 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262needed to reach MMI would be for treatment of his lumbar
back injury. Spratt did not appeal from the original award.
3. Request for Modification
In accordance with the original award, Gilmore treated
Spratt’s lumbar back. But 6 weeks after the issuance of the
original award, Gilmore sought permission to treat Spratt’s
thoracic back pain and herniated thoracic disk. Crete refused
to pay for the treatment, because it was not pursuant to the
original award.
In November 2020, Gilmore concluded that Spratt had
reached MMI for his lumbar back injury, but noted that Spratt
still suffered from back pain. Gilmore opined that Spratt suf-
fered a thoracic back injury during the original accident and
that Spratt’s lumbar back pain was being “generat[ed]” from
his thoracic back.
Citing Gilmore’s conclusion that Spratt had reached MMI,
Crete moved for modification to close the open award for tem-
porary benefits and ongoing medical benefits. Spratt responded
by requesting the compensation court modify the original
award so that he may receive thoracic back treatment.
Although Spratt “admit[ted]” at oral arguments that he did
not bring a workers’ compensation statute authorizing his
request for modification to the compensation court’s attention,
he argued that he did not do so, because he did not anticipate
that the court would believe it lacked authority. On appeal,
Crete does not dispute that § 48-162.01(7), as a source of
statutory authority, is properly before us. In pertinent part, that
statute states:
The compensation court or judge thereof may also mod-
ify a previous finding, order, award, or judgment relating
to physical, medical, or vocational rehabilitation services
as necessary in order to accomplish the goal of restoring
the injured employee to gainful and suitable employment,
or as otherwise required in the interest of justice. 1
1
§ 48-162.01(7).
- 267 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262At the modification hearing below, the parties first stipu-
lated that Spratt had reached MMI in his lumbar back. Spratt
then asserted that Gilmore made a mistake in the lumbar back
diagnosis that he provided the compensation court. Spratt pre-
sented a letter from Gilmore dated February 2021 opining that
Spratt suffered a thoracic back injury and needed correspond-
ing treatment. Spratt also testified that he was still suffering
from back pain and could not work.
The compensation court declined Spratt’s request for modi-
fication and found that he had reached MMI “for his low [sic]
back injury with no resulting permanent disability nor need
for further medical treatment.” However, the court did not
reach the merits of Spratt’s request for modification. Citing
Dougherty v. Swift-Eckrich, 2 the compensation court concluded
that § 48-162.01(7) did not provide it with the “power to mod-
ify, amend[,] or reopen” the original award. The court further
determined that even if a statutory basis existed, Spratt was
“foreclosed from re-litigating the issue concerning the nature
and extent of his thoracic injury.”
Spratt filed a timely appeal and petitioned this court to
bypass the Nebraska Court of Appeals. Of the grounds for
bypass specified by statute, 3 Spratt’s petition asserted only the
existence of a “novel legal question.” 4 Crete’s response dis-
puted that the appeal presented a novel legal question, but did
not complain that § 48-162.01(7) was not raised below. On that
basis, we granted bypass.
III. ASSIGNMENTS OF ERROR
Spratt assigns, restated, that the compensation court erred
in (1) finding that it did not have the statutory authority to
2
Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996)
(superseded by statute as stated in Hofferber v. Hastings Utilities, 282
Neb. 215, 803 N.W.2d 1 (2011)).
3
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
4
§ 24-1106(2)(a).
- 268 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262modify the original award to treat his thoracic back, (2) find-
ing that issue preclusion barred the modification, (3) apply-
ing “any preclusion doctrine,” (4) not finding that Gilmore’s
misdiagnosis of his injury did not bar the modification, and
(5) failing to apply the “unreasonable” standard set forth in
Williams v. Dobberstein. 5
IV. STANDARD OF REVIEW
[1] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2021), an
appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensa-
tion 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. 6
[2] The meaning of a statute is a question of law, and an
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law. 7
V. ANALYSIS
Here, our review is limited. No appeal was taken from the
original award. Thus, unless the workers’ compensation stat-
utes provide a basis for modification, Spratt cannot prevail.
While, as Spratt essentially conceded at oral argument, he
did not specifically mention § 48-162.01(7) in his modifica-
tion pleading or in the hearing below, the compensation court
clearly understood that the question of the statutory basis for
Spratt’s requested relief was before it. Over several pages of
a thoroughly written decision, the court discussed its percep-
tion that a statutory basis was lacking and the case of this
5
Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776 (1968).
6
Boring v. Zoetis LLC, 309 Neb. 270, 959 N.W.2d 795 (2021).
7
Herrington v. P.R. Ventures, 279 Neb. 754, 781 N.W.2d 196 (2010).
- 269 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262court upon which it primarily relied. We will turn to that
case later.
We have said that appellate courts do not consider argu-
ments and theories raised for the first time on appeal. 8 We have
stated the same rule using a slightly different articulation: An
appellate court will not consider an argument or theory that is
raised for the first time on appeal. 9 But we have also stated that
when an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as a lower court cannot com-
mit error in resolving an issue never presented and submitted
to it for disposition. 10 This rationale focuses on the submission
of an issue.
But here, the compensation court was presented with the
issue of its statutory authority. Spratt could have provided
greater assistance to the court by citing § 48-162.01(7). But
the compensation court operates exclusively in the realm of
workers’ compensation law. We do not view the absent citation
below as an attempt to induce error or to gamble on a favor-
able result. 11
Our analysis of the issues presented on appeal begins by
noting competing general principles, and then turns to the
two questions directly addressed by the compensation court.
Did the court have statutory authority to modify the original
award to treat Spratt’s thoracic back? And, was modification
precluded by a principle of finality?
1. Two Competing Principles
This case highlights two competing general principles
regarding the Nebraska Workers’ Compensation Act: (1) liberal
statutory interpretation and (2) finality.
8
In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).
9
Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d
692 (2021).
10
Id.11
See id.- 270 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262[3] In light of the beneficent purpose of the act, the appel-
late courts have consistently given it a liberal construction to
carry out justly the spirit of the act. 12 In doing so, we follow
a principle which first used the words “beneficent” and “lib-
eral” in 1932. 13 However, the idea can be traced back over a
century. 14 It arose shortly after the adoption of the foundational
statutory section. 15
But our workers’ compensation statutes also employ equally
ancient principles of finality. One statute, closely following
the form of its original enactment in 1913, 16 states in part,
“All awards of compensation made by the compensation court,
except those amounts payable periodically, shall be final and
not subject to readjustment.” 17
Another statute, Neb. Rev. Stat. § 48-170 (Reissue 2021),
more directly employs the principle of finality. It states, “Every
order and award of the [compensation court] shall be bind-
ing upon each party at interest unless an appeal has been
filed with the compensation court within thirty days after
the date of entry of the order or award.” 18 The essence of
this language is found in its original 1917 version. 19 Thus,
we held in 1933 that an order denying compensation, except
insofar as modified by the express terms of the act, was an
12
Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d
105 (2015) (internal quotation marks omitted).
13
See Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797 (1932).
14
See Parson v. Murphy, 101 Neb. 542, 163 N.W. 847 (1917), overruled in
part on other grounds, Meyer v. Nielsen Chevrolet Co., 137 Neb. 6, 287
N.W. 849 (1939).
15
See, Neb. Rev. Stat. § 48-101 (Reissue 2021); 1913 Neb. Laws, ch. 198,
§ 1, p. 579.
16
See 1913 Neb. Laws, ch. 198, § 41, p. 597.
17
Neb. Rev. Stat. § 48-140 (Reissue 2021).
18
§ 48-170.
19
See 1917 Neb. Laws, ch. 85, § 29, p. 222.
- 271 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262absolute bar to a subsequent action based upon the same cause
of action. 20
[4] We recognize that yet another statute 21 provides a 14-day
window for modification of an award and that the language of
§ 48-170 was amended at the time three-judge review panels
were eliminated in 2011. 22 Thus, a rule of law we articulated
in 2002 23 and another stated in 1997 24 must be restated in light
of the current statutes: Subject to the power of the Nebraska
Workers’ Compensation Court to modify or change its find-
ings, order, award, or judgment before appeal and within 14
days after the date of such findings, order, award, or judgment,
every order and award of the compensation court becomes con-
clusive and final unless an appeal has been filed within 30 days
after the date of entry of the order or award. 25 The Legislature’s
repeated use of temporal limitations emphasizes the importance
of finality in workers’ compensation cases.
These principles are reflected in the parties’ arguments here.
Spratt encourages this court to liberally interpret the act to
allow the modification of the original award. Crete seeks for
this court to uphold a principle of finality to bar modification.
Recognizing the tension between these principles of liberal
statutory interpretation and finality, we turn to Spratt’s assign-
ments of error.
2. Statutory Authority
Spratt first assigns that the compensation court erred in find-
ing that it did not have the statutory authority to modify the
20
See Gray v. Burdin, 125 Neb. 547, 250 N.W. 907 (1933).
21
Neb. Rev. Stat. § 48-180 (Reissue 2021).
22
See 2011 Neb. Laws, L.B. 151, § 7.
23
See Lopez v. IBP, Inc., 264 Neb. 273, 646 N.W.2d 628 (2002).
24
See Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830(1997).
25
See §§ 48-170 and 48-180.
- 272 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262original award to treat Spratt’s thoracic back. Spratt asserts
that the compensation court improperly relied on Dougherty
v. Swift-Eckrich 26 and that § 48-162.01(7) authorized the com-
pensation court to modify the original award.
[5,6] The compensation court is a tribunal of limited and
special jurisdiction and has only such authority as has been
conferred on it by statute, 27 and its power cannot extend
beyond that expressed in the statute. 28 Accordingly, the com-
pensation court cannot modify an award unless it is statutorily
authorized to do so. 29
(a) Dougherty v. Swift-Eckrich
Spratt argues that the compensation court’s reliance on
Dougherty v. Swift-Eckrich was improper, because it was abro-
gated by a statutory change to Neb. Rev. Stat. § 48-162.01(6)
(Reissue 1998). 30 We agree.
In Dougherty v. Swift-Eckrich, this court found that the
compensation court did not have the statutory authority to
modify an award to fix a clerical mistake. 31 The compensa-
tion court mistakenly awarded vocational rehabilitation serv­
ices based upon a quarter-based academic calendar instead
of a semester-based academic calendar, which the injured
employee’s educational institution used. 32 We explained that
the act did not empower the compensation court to modify a
previous award. 33
26
Dougherty v. Swift-Eckrich, supra note 2.
27
Smith v. Fremont Contract Carriers, 218 Neb. 652, 358 N.W.2d 211(1984).
28
See Hofferber v. Hastings Utilities, supra note 2.
29
See, id; Dougherty v. Swift-Eckrich, supra note 2. See, also, e.g., Neb.
Rev. Stat. § 48-141 (Reissue 2021).
30
See, Dougherty v. Swift-Eckrich, supra note 2; 1997 Neb. Laws, L.B. 128,
§ 4.
31
See Dougherty v. Swift-Eckrich, supra note 2.
32
See id.33
See id.- 273 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262The Legislature responded to Dougherty v. Swift-Eckrich
by adding language, first codified in § 48-162.01(6), to allow
the compensation court to modify a previous award for physi-
cal, medical, or vocational rehabilitation services. 34 The
Legislature explained that this language was added to ensure
the compensation court may modify an award “for the purpose
of restoring the employee to gainful and suitable employment
or as otherwise required in the interest of justice. This change
[was] sought as a result of [Dougherty v. Swift-Eckrich].” 35
Later legislation moved the language to subsection (7). 36
Crete does not dispute that Dougherty v. Swift-Eckrich was
abrogated by a statutory change. Referring to that decision,
we have said that “the Legislature amended § 48-162.01(7) to
permit the [compensation court] to modify previously awarded
physical, medical, or vocational rehabilitation services.” 37
Instead, Crete argues that the compensation court’s reliance
on the abrogated case is insignificant, because the compen­
sation court nonetheless lacked statutory authority to modify
the original award to treat Spratt’s thoracic back. It relies upon
the familiar principle that a proper result will not be reversed
merely because it was reached for the wrong reasons. 38 Thus,
our resolution of this assignment of error turns upon the extent
of authority conferred by § 48-162.01(7) (Reissue 2021).
(b) § 48-162.01(7)
Spratt asserts that the same statutory language that
abrogated Dougherty v. Swift-Eckrich—now codified in
34
See 1997 Neb. Laws, L.B. 128, § 4.
35
Introducer’s Statement of Intent, L.B. 128, Committee on Business and
Labor, 95th Leg., 1st Sess. (Jan. 27, 1997). See, 1997 Neb. Laws, L.B.
128, § 4; Dougherty v. Swift-Eckrich, supra note 2.
36
See 2000 Neb. Laws, L.B. 1221, § 11.
37
Hofferber v. Hastings Utilities, supra note 2, 282 Neb. at 233-34, 803
N.W.2d at 14.
38
See Thornton v. Grand Island Contract Carriers, 262 Neb. 740, 634
N.W.2d 794 (2001).
- 274 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262§ 48-162.01(7)—also authorized the compensation court to
modify the original award to treat his thoracic back. 39 As we
have already quoted above, § 48-162.01(7) states in perti-
nent part:
The compensation court or judge thereof may also modify
a previous finding, order, award, or judgment relating to
physical, medical, or vocational rehabilitation services as
necessary in order to accomplish the goal of restoring the
injured employee to gainful and suitable employment, or
as otherwise required in the interest of justice.
Spratt’s argument relies solely on this quoted language. At
oral argument, Spratt correctly conceded that the compensation
court could not modify the original award under § 48-141 and
that his alleged thoracic back injury was not a compensable
consequence of his lumbar back injury.
Crete argues that § 48-162.01(7) was inapplicable to Spratt’s
request for modification and encourages us to adopt and apply
the Court of Appeals’ decision in McKay v. Hershey Food
Corp. 40 There, an injured employee sought modification of a
prior award by the compensation court in order to obtain voca-
tional rehabilitation services. However, the prior award had
not included vocational rehabilitation services. Consequently,
the Court of Appeals found that the compensation court did
not have the statutory authority to modify the award to include
vocational rehabilitation services, because it would be award-
ing a new category of services. The Court of Appeals con-
cluded that the addition to § 48-162.01(7) “contemplates a
modification of services previously granted and does not pro-
vide for a modification of a final order to grant entirely new
services or benefits.” 41
39
See Dougherty v. Swift-Eckrich, supra note 2.
40
McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007).
41
See id. at 88, 740 N.W.2d at 386.
- 275 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262Crete analogizes Spratt’s request to the modification sought
in McKay v. Hershey Food Corp. Crete asserts that if the
compensation court had modified the original award to treat
Spratt’s thoracic back, it would have wrongfully awarded
Spratt new rehabilitation services—as distinguished from mod-
ifying previous services.
We are not persuaded by Crete’s interpretation of
§ 48-162.01(7). First, McKay v. Hershey Food Corp. is dis-
tinguishable from the instant appeal. Spratt does not request
that the compensation court award him a new category of
services. Instead, Spratt seeks modification of medical reha-
bilitation services that the compensation court had already
awarded him.
In 1969, 42 the Legislature first expressed a goal, as the sec-
tion now reads, “One of the primary purposes of the Nebraska
Workers’ Compensation Act is restoration of the injured
employee to gainful employment.” 43 During the legislative
proceedings in 1969, a compensation court judge explained
that “there is a difference between physical or medical reha-
bilitation and vocational rehabilitation.” 44 The legislation, the
judge explained, “reinforces the distinction between physical
and medical rehabilitation and vocational rehabilitation.” 45 The
language of the original codification discussed both catego-
ries in subsection (3). 46 In 2005, § 48-162.01 was restruc-
tured to retain the entitlement to vocational rehabilitation in
subsection (3) and to place the entitlement to physical and
medical rehabilitation in subsection (6). 47 The power to modify
42
See 1969 Neb. Laws, ch. 388, § 1, p. 1357.
43
§ 48-162.01(1).
44
Labor Committee Hearing, ch. 388, § 1, p. 1357, 80th Leg., 1st Sess. 3
(Feb. 12, 1969).
45
Id.
46
See § 48-162.01(3) (Reissue 1974).
47
See, 2005 Neb. Laws, L.B. 13, § 19; § 48-162.01 (Reissue 2021).
- 276 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262remained codified in subsection (7). 48 Thus, the Legislature
has clarified its language to carry out its original goal of
maintaining the distinction between the two types of reha-
bilitation services: (1) medical and physical and (2) vocational.
In McKay v. Hershey Food Corp., the injured worker sought
modification to add vocational rehabilitation where none had
been originally awarded. Here, Spratt seeks modification of
the extent of medical and physical rehabilitation provided by
the original award.
Further, Crete’s argument is counterintuitive. In essence,
Crete argues that the compensation court cannot modify an
award to include any medical rehabilitation services that were
not specifically included in the prior award, regardless of how
similar the services were to those awarded in the prior award.
Under this rationale, the compensation court would be incen-
tivized to broadly include all hypothetical medical rehabilita-
tion services (no matter how redundant or speculative) in order
to ensure it can modify the award later if necessary.
[7] Accordingly, we conclude that pursuant to § 48-162.01(7),
where a prior award of the compensation court has provided
medical or physical rehabilitation services, the compensation
court may modify the award of such services to the extent the
court finds such modification necessary in order to accomplish
the goal of restoring the injured employee to gainful and suit-
able employment, or otherwise required in the interest of jus-
tice. Thus, the compensation court erred in its legal conclusion
that it lacked the power to modify the original award to treat
Spratt’s thoracic back.
[8] We recognize that in adopting this language in
§ 48-162.01(7), the Legislature did not place a temporal limita-
tion on the compensation court’s power to modify. An appellate
court is not at liberty to add language to the plain terms of a
statute to restrict its meaning. If a time limitation is to apply, it
is up to the Legislature to impose one.
48
See id.
- 277 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 2623. Preclusion
We next address whether Spratt’s request that the com-
pensation court modify the original award is precluded as a
matter of law. Spratt’s final four assignments of error assert
that the entire gambit of preclusion doctrines—claim preclu-
sion, issue preclusion, and the law-of-the-case doctrine—did
not bar his request. Spratt also uses the terms “collateral estop-
pel” and “res judicata,” but they are duplicative. 49 In the past,
this court has referred to claim preclusion and issue preclusion,
respectively, as res judicata and collateral estoppel. 50 We have
since moved away from that terminology and now utilize the
terms “claim preclusion” and “issue preclusion.” 51
The compensation court relied upon issue preclusion. Crete
concedes that issue preclusion does not apply here. Instead, it
relies upon the law-of-the-case doctrine.
Of the three preclusion doctrines, only the ­law-of-the-case
doctrine may apply. As Crete submits in its brief, claim and
issue preclusion are inapplicable to the instant appeal. Claim and
issue preclusion are only applicable to matters raised in subse-
quent actions. 52 Here, there was no subsequent action. Spratt’s
request for modification arose in the same action as the origi-
nal award. 53 Therefore, this court need only address whether
the law-of-the-case doctrine precluded Spratt’s request.
[9-11] The law-of-the-case doctrine reflects the principle
that an issue that has been litigated and decided in one stage
of a case should not be relitigated at a later stage. 54 The
­law-of-the-case doctrine promotes judicial efficiency and pro-
tects parties’ settled expectations by preventing parties from
49
See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
50
See id.51
See id.52
See id.53
See § 48-141.
54
County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).
- 278 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262relitigating settled issues within a single action. 55 Generally,
absent extraordinary circumstances, a court should be reluctant
to revisit its own prior decision or that of another court in a
single case. 56
[12,13] Under the mandate branch of the ­law-of-the-case
doctrine, a decision made at a previous stage of litigation, which
could have been challenged in the ensuing appeal but was not,
becomes the law of the case; the parties are deemed to have
waived the right to challenge that decision. 57 However, an issue
is not considered waived if a party did not have both an oppor-
tunity and an incentive to raise it in a previous appeal. 58
We conclude that the law-of-the-case doctrine does not bar
the modification of the original award. Spratt did not have
an incentive to appeal from the original award. The doctors’
medical diagnoses of Spratt’s injuries aligned with the medical
rehabilitation services given under the original award. Spratt
reasonably believed that he would receive the treatment neces-
sary to rehabilitate his back. Spratt discovered that the awarded
services were insufficient only after the time had lapsed to
appeal from the original award. Prior to that discovery, Spratt
had no purpose in appealing from the original award.
[14] We emphasize that nothing in this opinion should be
read to suggest how the compensation court should exercise
its power pursuant to § 48-162.01(7), or to limit or preclude
the court in making findings of fact. We have long said that 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. 59
55
Id.
56
Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
57
County of Sarpy v. City of Gretna, supra note 54.
58
See id.59
Lewis v. MBC Constr. Co., 309 Neb. 726, 962 N.W.2d 359 (2021).
- 279 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
SPRATT v. CRETE CARRIER CORP.
Cite as 311 Neb. 262VI. CONCLUSION
The compensation court had authority pursuant to
§ 48-162.01(7) to modify the original award, and modification
was not precluded by the law-of-the-case doctrine. Because the
compensation court erred in finding to the contrary, we reverse
its ruling and remand the cause for further proceedings.
Reversed and remanded for
further proceedings.
Stacy, J., not participating.