Dupell v. Ford Storage & Moving

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
DUPELL V. FORD STORAGE & MOVING
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MICHAEL DUPELL, APPELLEE,
V.
FORD STORAGE & MOVING AND VANLINER INSURANCE COMPANY, APPELLANTS.
Filed October 3, 2017. No. A-16-1163.
Appeal from the Workers’ Compensation Court: JULIE A. MARTIN, Judge. Affirmed.
Brian D. Moore, of Larson, Kuper, Wenninghoff & Carney, P.C., L.L.O., for appellants.
Terry M. Anderson and Michael W. Khalili, of Hauptman, O’Brien, Wolf & Lathrop, P.C.,
for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
MOORE, Chief Judge.
INTRODUCTION
Ford Storage & Moving (Food Storage) and Vanliner Insurance Company (collectively the
Appellants) appeal from the Nebraska Workers’ Compensation Court’s award of benefits to
Michael Dupell. Because we find the evidence sufficient to support the award, we affirm.
FACTUAL BACKGROUND
The present appeal primarily concerns the nature and extent of the injury sustained by
Dupell as a result of his accident at Ford Storage in November 2014 where Dupell was employed.
Dupell was 53 years old at the time of trial. Although some evidence suggests he had a degree in
micro accounting, he testified that he only completed 2½ years of college between 1989 and 1991
and did not earn a degree. He briefly did some accounting work in 1997 and had some managerial
experience in the 1990s.
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Dupell has been employed at Ford Storage since September 1999. His initial duties at Ford
Storage primarily included assembling and delivering furniture. Immediately prior to the
November 2014 injury at issue in this case, Dupell’s duties included “[l]oading, unloading trucks
sometimes by hand, forklift, deliveries, driving a truck, making deliveries, [and] whatever [Ford
Storage] needed [him] to do around the warehouse.” A company representative described Dupell’s
position prior to the accident as the “odd-job guy” that “helped us with different aspects.” Dupell
had been in that position for approximately 1½ to 2 years.
Dupell has had a number of prior work-related injuries, some with Ford Storage and some
with other employers. As relevant to the present appeal, in January 2007, Dupell was involved in
a motor vehicle accident while driving a Ford Storage truck. According to Dupell, he sustained
injuries to his neck and back in that accident, although the injury was primarily to his neck. Dupell
eventually accepted a lump sum payment in connection with that accident. Dupell testified at trial
in the present case to his understanding that the lump sum payment had been to compensate him
for the 5-percent impairment rating his doctor had assigned. In his testimony, Dupell could not
recall if the lump sum payment was for the cervical injury. Exhibit 16, which included documents
relating to the lump sum payment for the 2007 injury, showed that the impairment rating was for
the cervical injury and not a back injury. However, the court ultimately chose not to admit this
exhibit into evidence.
The present accident occurred on November 3, 2014, while Dupell was making a delivery
to a local warehouse for Ford Storage. Dupell injured his lower back while “pull[ing]” a pallet that
weighed approximately 1,000 pounds into his truck. Dupell finished his shift and sought medical
treatment the following morning. Dupell underwent a conservative course of treatment, including
medications, physical therapy, and injections.
On March 20, 2015, Dupell underwent a functional capacity evaluation (FCE), but accurate
“functional restrictions” could not be outlined for Dupell due to “his invalid test results.” During
the FCE, Dupell “demonstrated numerous findings of inconsistent and submaximal effort.” The
physical therapist who conducted the FCE observed that Dupell’s “subjective complaints of pain
and pain behaviors appear[ed] out of proportion with his objective findings of dysfunction.” The
physical therapist also noted that Dupell “appear[ed] safe to function at higher levels than he
demonstrated during this exam.”
Conservative treatment did not relieve Dupell’s pain, and he was taken off work in late
August or early September 2015 following an “incident involving a loss of continence” and was
told by his family doctor to see Dr. Stephen Doran, the neurosurgeon who had treated him
previously in connection with the November 2014 accident. On October 8, following “an updated
lumbar MRI,” Doran compared that MRI to one done on November 12, 2014. Although the
radiologist thought the scans were unchanged, Doran felt that there had been “a slight but definitive
progression in [Dupell’s] disc bulge at L4-5 on the right side.” Doran noted that he did not think
that there was “significant nerve root compression of the L5 nerve root” shown in the 2014 MRI,
but that the disc bulge had since “worsened slightly” so that the updated MRI showed that “now
there is demonstrable compression of the L5 nerve root that would correlate with [Dupell’s] leg
pain.” As Dupell had “failed an exhaustive course of conservative care,” Doran recommended a
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“right L4-5 microendoscopic discectomy,” which Doran felt “would have a reasonable probability
of relieving [Dupell’s] leg pain with unpredictable effect on his back pain.”
Dr. Benjamin Bixenmann conducted an independent medical examination of Dupell on
November 24, 2015. Bixenmann was provided with “several documents from consulting
specialists” Dupell had seen previously and after the exam was provided with MRIs of Dupell’s
lumbar spine taken in November 2014 and September 2015. Based on his examination of Dupell
and the materials provided, Bixenmann opined that Dupell had reached MMI “given his current
treatment for his diagnosis of lumbar intervertebral disc herniation with radiculopathy sustained
during a work injury on 11/3/14” and calculated a total whole person impairment of 9 percent. He
also thought that “surgical decompression of the right L5 nerve via a microdiscectomy procedure
at the L4-5 level would improve [Dupell’s] current pain condition.” Bixenmann also recommended
a return to work with a 20-pound lifting restriction and “limited bending and twisting at the waist
given his current condition.”
On January 29, 2016, Doran performed the recommended surgery. Following surgery,
Dupell participated in physical therapy, which he testified did not help with his pain. On March
31, the therapist noted that Dupell’s progress was “[f]air to poor” because Dupell was “still so
limited by pain and guarding that he has difficulty [with] bending [and] lifting.” After his last
physical therapy appointment on April 12, Dupell transitioned to a “work hardening” or “work
conditioning” program. Dupell was last seen by Doran on April 27. At that time, Doran stated that
Dupell’s residual back pain following surgery continued to improve, although he still had pain
with bending. Dupell was “progressing” and had about 3 weeks left of the work conditioning
program. Doran stated further that once Dupell completed his work conditioning, he would be able
to return to work “full time without restrictions” on about May 23.
Dupell returned to work for Ford Storage on May 23, 2016 as a forklift driver. A Ford
Storage representative testified that Dupell’s pre-injury job (the local delivery position) no longer
existed at the time of his release to work. The job duties of the forklift driver position are similar
to Dupell’s previous job duties without “the delivery aspect.” Dupell testified that he is able to do
his current job, that no accommodations are being made for him, but that he still has pain in his
back. At the time of trial, he was working full-time without restrictions, albeit “[w]ith pain.”
Although overtime hours were available to Dupell at the time of trial, he testified that he rarely
accepts them because of his continued pain.
In a letter dated August 8, 2016, Doran stated that while Dupell had residual back and
buttock pain, he was placed at maximum medical improvement (MMI) on June 29. Doran noted
that Dupell was “capable of working his normal job” and that “no follow-up was scheduled.”
Doran stated that “using the AMA Guide to the Evaluation of Permanent Impairment,” Dupell
“qualified for a DRE Lumbar Category 3 with a history of herniated disc treated surgically,” which
“qualifies him for a 13% impairment of the whole person.”
Dupell made phone calls to Doran’s office after returning to work, but had been “playing
phone tag with the nurse” and had not obtained another appointment for his continued back pain.
However, on August 15, 2016, Doran ordered an FCE for Dupell’s diagnosis of “[o]ther
intervertebral disc displacement, lumbar region.” The FCE, completed on August 25, had a 76
percent validity measure and indicated that Dupell could work at the sedentary to light duty
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physical demand level for an 8-hour work day. Restrictions on constant standing and walking
prevented Dupell from being placed in the light to medium physical demand category. In a
September 15 letter to Dupell’s attorney, Doran indicated that he had reviewed the FCE, agreed
with the report, and placed Dupell “at a sedentary to light duty permanent restriction 8 hour work
day.”
Dupell was asked at trial whether he was currently following the restrictions of the August
2016 FCE at work. He indicated that he was not. Dupell testified that in each 2-week period he
was currently working three 12-hour shifts the first week followed by four 12-hour shifts the next
week and that he was “[r]iding a forklift about 10 hours, 12 hours a day.” He testified that Ford
Storage had not dropped his work schedule down to 8 hours because of the restrictions and had
not provided longer breaks, more breaks, or lighter duty. Dupell acknowledged, however, that he
had never provided Ford Storage with any restrictions and that he never provided them with the
FCE report. The Ford Storage representative who testified at trial confirmed that the company had
never received any permanent work restrictions for Dupell.
PROCEDURAL BACKGROUND
The compensation court entered an order for submission of a joint pretrial memorandum
on August 19, 2016, which included a provision stating that “[a]t least seven (7) calendar days
prior to trial, counsel for all parties shall file with the clerk of the Workers’ Compensation Court
a joint pretrial memorandum addressing” items including, “A list of all exhibits the parties intend
to offer at trial. . . . An exhibit not identified and produced to the opposing party at least seven (7)
calendar days prior to trial is subject to exclusion from evidence.” The court’s order also specified,
“FAILURE TO COMPLY FULLY WITH THIS ORDER MAY RESULT IN THE IMPOSITION
OF APPROPRIATE SANCTIONS.”
In their joint pretrial memorandum, filed on September 16, 2016, the parties stipulated to
Dupell’s average weekly wage; that he was injured on November 3, 2014 in the course and scope
of his employment, that he was employed by Ford Storage on the date of his injury, that he reached
MMI on June 29, 2016, and that he had returned to work for Ford Storage. The issues for trial
identified in the parties’ memorandum were (1) Dupell’s entitlement to payment of medical bills
and associated mileage and (2) the nature and extent of Dupell’s injury and disability, and loss of
earning capacity incurred as a result of the work accident. The memorandum included the parties’
respective exhibit lists, and among the exhibits identified in Dupell’s list were the August 2016
FCE and Doran’s letter endorsing it.
Trial was held before the compensation court on September 22, 2016. Dupell offered
exhibits 1 through 11. The appellants objected to Dupell’s offer of exhibit 4 (Doran’s endorsement
of the August 2016 FCE) on the basis of foundation and timeliness. They also objected to the
timeliness of exhibit 7 (the August 2016 FCE) and exhibit 8 (physical therapy notes from February
through April 2016). Following argument by counsel, the court overruled the Appellants’
objections and received Dupell’s exhibits. The Appellants then offered exhibits 12 through 16.
Dupell objected to exhibit 16 (evidence of the settlement regarding the 2007 injury) as not being
relevant. The trial court reserved ruling on exhibit 16 and received the Appellants’ other exhibits
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into evidence. The court then heard testimony from Dupell, Dupell’s wife, and a representative of
Ford Storage. We have already set forth the substance of the evidence above.
On November 14, 2016, the compensation court entered an award of benefits to Dupell.
The court first noted the evidentiary objections made at trial. It stated that the Appellants had been
given the option of a continuance following their objections to exhibits 4, 7, and 8. The court also
sustained Dupell’s objection to exhibit 16 after “having an opportunity to review the exhibit in
light of the evidence.”
Next, the compensation court considered the nature and extent of the injury sustained by
Dupell as a result of the November 2014 accident. The court stated that it was disregarding exhibit
14, the FCE completed in 2015, because it had been completed prior to Dupell’s surgery and would
“not be an accurate representation of his current limitations post-discectomy.” The court was not
persuaded by the Appellants’ argument that Doran did not expressly relate the permanent
restrictions to Dupell’s most recent injury. The court noted that the second FCE “was ordered for
a diagnosis of ‘intervertebral disc displacement, lumbar region;’ the injury herein.” The court noted
evidence that Dupell had sustained a prior work injury; however, despite having sustained the
objection to exhibit 16, the court cited exhibit 16 and noted that the only permanent impairment
was to Dupell’s neck as he was assigned a 0-percent impairment to his low back. The court found
no evidence that Dupell had any prior impairment or disability to his low back, and, taking the
evidence as a whole, was “reasonably satisfied” that the restrictions were assigned by Doran as a
result of Dupell’s November 2014 accident.
The compensation court discussed Dupell’s loss of earning capacity. The court found it
was able to consider Dupell’s testimony in making that determination. The court reviewed
Dupell’s testimony with respect to his pain and limitations, finding him to be a generally credible
witness. When considering the medical evidence, Dupell’s testimony, his education and
background, his injury and the restrictions flowing therefrom, his current work status, together
with the various factors used to determine loss of earning capacity set forth in Nebraska case law,
the court found that Dupell had a 50-percent loss of earning capacity. Given the stipulated average
weekly wage, the court found that Dupell was entitled to weekly benefits of $249 per week for the
statutory maximum of 300 weeks less those weeks during which he received temporary total
disability benefits.
Finally, the compensation court determined that the Appellants were to pay certain medical
bills and mileage expenses incurred by Dupell and gave the Appellants credit for payment of other
specified indemnity and medical benefits.
ASSIGNMENTS OF ERROR
The Appellants assert that the compensation court erred in (1) accepting highly prejudicial
evidence that was not disclosed to it before trial, (2) stating incorrectly in its award that the
Appellants were offered a continuance, (3) finding Dupell’s work accident was the proximate
cause of his claimed restrictions without any evidence from a medical expert to that effect, (4)
failing to receive evidence of a prior apportionable injury, (5) failing to apportion Ford Storage’s
payment for a prior loss of earning capacity, and (6) failing to consider medical evidence that was
relevant to Dupell’s work injury, physical health, and credibility.
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STANDARD OF REVIEW
A judgment, order, or award of the Workers’ Compensation Court may be modified,
reversed, or set aside only upon the grounds that (1) the compensation court acted without or in
excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order, judgment, or award;
or (4) the findings of fact by the compensation court do not support the order or award. Damme v.
Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014). In testing the sufficiency of the evidence to
support the Workers’ Compensation Court’s findings, an appellate court considers the evidence in
the light most favorable to the successful party. Id. The appellate court resolves every controverted
fact in the successful party’s favor and gives that party the benefit of every inference that is
reasonably deducible from the evidence. Id. The Workers’ Compensation Court’s factual findings
have the effect of a jury verdict, and an appellate court will not disturb them unless they are clearly
wrong. Id. An appellate court independently reviews questions of law decided by a lower court.
Id.Admission of evidence is within the discretion of the Workers’ Compensation Court,
whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.
Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016).
ANALYSIS
Discovery.
The Appellants assert that the compensation court erred in accepting highly prejudicial
evidence that was not disclosed to it before trial and stating incorrectly in its award that they were
offered a continuance. The Appellants challenge the court’s receipt into evidence of exhibit 7, the
August 2016 FCE report over their objection that the report had not been timely disclosed, in
violation of the court’s order for submission of a joint pretrial memorandum. Appellants do not
assign error to the admission of exhibit 4, Doran’s endorsement of the August 2016 FCE.
The FCE was performed on August 25, 2016. The report was addressed to Doran, and a
notation at the end of the report indicates it was copied to Dupell’s attorney. At trial, the
Appellants’ attorney objected to Dupell’s offer of exhibit 7 as untimely, stating that he had just
received the exhibit that morning. Although the Appellants’ attorney argued that exhibit 4, Doran’s
endorsement of the FCE, was also untimely, he stated it was received “just seven days prior to
trial.” The Appellants’ attorney also objected that exhibit 4 lacked foundation because it referenced
the FCE, which “[w]e just saw it for the first time today.” Dupell’s attorney stated that the FCE
was emailed to another attorney of record for the Appellants as soon as he received it and that it
was sent to the Appellants’ attorney on the same day that Dupell’s attorney received Doran’s
endorsement of the FCE. Dupell’s attorney further stated, “As you can see, on the date of [Doran’s
endorsement], it’s dated 9/15 and that’s when they received it.” The court overruled the
Appellants’ objections and received both exhibits, finding that they had been timely disclosed in
compliance with the court’s pretrial order.
The Nebraska Workers’ Compensation Court is not bound by the usual common-law or
statutory rules of evidence or by any technical or formal rules of procedure. Interiano-Lopez v.
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Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 (2016). The compensation court has, however,
specifically adopted the discovery rules found in Neb. Ct. R. Disc. §§ 6-301 to 6-337, which permit
the court to sanction noncompliance with a discovery order. See Workers’ Comp. Ct. R. of Proc.
4 (2009). With respect to noncompliance with a discovery order, Neb. Ct. R. Disc. § 6-337(b)(2)
provides that if a party “fails to obey an order to provide or permit discovery . . . the court in which
the action is pending may make such orders in regard to the failure as are just” including an order
“prohibiting [the disobedient party] from introducing designated matters into evidence,” an order
staying proceedings until the discovery order is obeyed, or an order dismissing the action.
Decisions regarding discovery are directed to the discretion of the trial court, and will be
upheld in the absence of an abuse of discretion. Moreno v. City of Gering, 293 Neb. 320, 878
N.W.2d 529 (2016). The party asserting error in a discovery ruling bears the burden of showing
that the ruling was an abuse of discretion. Id. A judicial abuse of discretion exists when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right
and denying just results in matters submitted for disposition. Hill v. Tevogt, 293 Neb. 429, 879
N.W.2d 369 (2016).
The Appellants argue that they were “highly prejudiced by the unfair surprise” of Dupell’s
untimely disclosure of exhibit 7, and citing § 6-337, they argue that the compensation court should
have imposed an appropriate discovery sanction. Brief for appellants at 16. The Appellants note
the court’s incorrect statement in the award that they were offered a continuance, and they argue
that the court was “suggesting that the offer of a continuance cured the prejudice that the late
disclosure of [e]xhibit 7 had created.” Brief for appellants at 13. Their arguments ignore the court’s
finding at trial that the disclosure was timely and in compliance with the pretrial order. The court’s
incorrect statement regarding the offer of a continuance in the award is not relevant to our
consideration of whether the court abused its discretion in determining whether there had been a
discovery violation. The court clearly based its ruling as to the timeliness of exhibit 7 on the
information provided at the time of trial.
In their reply brief, the Appellants assert that Dupell’s attorney “falsely stated” at trial that
he emailed exhibits 4 and 7 to the Appellants’ counsel and that he has “acknowledged this
misstatement” since trial. Reply brief for appellants at 2. However, a party’s brief may not expand
the evidentiary record. Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).
A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence
which is not made a part of the bill of exceptions may not be considered. In re Estate of Panec,
291 Neb. 46, 864 N.W.2d 219 (2015).
Even if the FCE was not disclosed until the morning of trial, Neb. Ct. R. Disc. § 6-337 does
not require the imposition of sanctions. The determination of an appropriate discovery sanction
rests within the discretion of the trial court, and an appellate court will not disturb it absent an
abuse of discretion. Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016). The appropriate
sanction under Neb. Ct. R. Disc. § 6-337 depends on the facts. Hill v. Tevogt, supra. Factors which
are relevant to sanctions under Neb. Ct. R. Disc. § 6-337 include the prejudice or unfair surprise
suffered by the party seeking sanctions, the importance of the evidence which is the root of the
misconduct, whether the court warned the sanctioned party about the consequences of its
misconduct, whether the court considered less drastic sanctions, the sanctioned party’s history of
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discovery abuse, and whether the sanctioned party acted willfully or in bad faith. Hill v. Tevogt,
supra.
The facts of this case do not show the extreme prejudice suggested by the Appellants.
Regardless of any offer of a continuance by the court, the Appellants could have asked for a
continuance but did not do so. Further, the Appellants were on notice that a new FCE was being
conducted. The record contains exhibit 3, Doran’s August 15, 2016 order for the FCE, to which
Appellants did not object. The joint pretrial memorandum filed 7 days before trial identified both
exhibits 4 (Doran’s endorsement) and 7 (the August 2016 FCE) on Dupell’s exhibit list. And, as
noted above, the Appellants admit to receiving Doran’s endorsement of the FCE with his stated
restrictions 7 days prior to trial which was in compliance with the pretrial order. Finally, the
Appellants conducted a thorough cross-examination of Dupell at trial with respect to his ability to
perform his current job at Ford Storage.
We find no abuse of discretion in the compensation court’s determination that there was
no discovery violation or in its failure to impose sanctions.
Proof of Permanent Impairment.
In this case, the parties stipulated that “[o]n November 3, 2014 [Dupell] was injured in the
course and scope of his employment” and that he was an employee of Ford Storage. They also
stipulated to his average weekly wage and that he reached MMI on June 29, 2016. The issue before
the court as relevant to the Appellants’ second assignment of error was the nature and extent of
Dupell’s injury and disability and loss of earning capacity. The Appellants do not specifically
assign error to the compensation court’s determination that Dupell sustained a 50-percent loss of
earning capacity. Rather, they assert that the court erred in finding Dupell’s work accident was the
proximate cause of his claimed restrictions without any evidence from a medical expert to that
effect.
The Nebraska Supreme Court has stated that the employee has the burden of proving that
his injury caused permanent impairment as a predicate to an award for permanent disability, i.e.,
loss of earning capacity. See Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 845(2013). See, also, Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). The
determination of causation is ordinarily a matter for the trier of fact. Hynes v. Good Samaritan
Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015). The issue of whether the claimant has sustained a
permanent impairment, and the extent of impairment, are questions of fact. Green v. Drivers
Mgmt., Inc., supra. If the nature and effect of a claimant’s injury are not plainly apparent, then the
claimant must provide expert medical testimony showing a causal connection between the injury
and the claimed disability. Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610(2016). Although medical restrictions or impairment ratings are relevant to a claimant’s disability,
the trial judge is not limited to expert testimony to determine the degree of disability but instead
may rely on the testimony of the claimant. Id.Without a finding of permanent medical impairment, there can be no permanent
restrictions. Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003). Without
impairment or restrictions, there can be no disability or labor market access loss. Id. The term
“impairment” is a medical assessment, while the term “disability” is a legal issue. Id. Permanent
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medical impairment is related directly to the health status of the individual, whereas disability can
be determined only within the context of the personal, social, or occupational demands or statutory
or regulatory requirements that the individual is unable to meet as a result of the impairment. Id.The Appellants argue that Dupell failed to meet his burden because he offered no medical
opinion specifically relating the restrictions from the August 2016 FCE to his November 2014
accident and injury. The compensation court rejected this argument below and found sufficient
causal connection, noting that the August 2016 FCE “was ordered for a diagnosis of ‘intervertebral
disc displacement, lumbar region;’ the injury herein.” The court further found that there was no
evidence that Dupell had any prior impairment or disability to his low back (noting that there was
0-percent impairment to his low back in the 2007 accident). Taking the evidence as a whole, the
compensation court was “reasonably satisfied that the restrictions were assigned by Dr. Doran as
a result of [Dupell’s] November 3, 2014 [accident]. . . .”
Our review of the entire record supports the compensation court’s determination regarding
causation. The parties stipulated that Dupell was injured on November 3, 2014, in the course and
scope of his employment with Ford. In October 2015, Doran compared a recent MRI with one
taken in November 2014. The 2015 MRI report references Dupell’s history of right-sided lower
back and buttock pain from a 2014 work-related accident. Upon comparing the MRIs, Doran noted
a progression in Dupell’s disc bulge at L4-5 with significant nerve root compression which would
correlate with Dupell’s leg pain, and recommended a right L4-5 discectomy. When Bixenmann
conducted an independent medical examination of Dupell in November 2015, he clearly tied
Dupell’s diagnosis of “intervertebral disc herniation with radiculopathy” to the November 2014
accident and assigned a 9-percent whole body impairment rating. Bixenmann felt that the
microdiscectomy procedure at the L4-5 level would improve Dupell’s pain and recommended
certain work restrictions. Subsequently, Doran performed the recommended L4-5
microendoscopic discectomy, after which Doran assigned Dupell a 13-percent impairment of the
whole person. Although Dupell returned to work following the surgery without restrictions,
following the August 2016 FCE, which was ordered for Dupell’s diagnosis of “intervertebral disc
displacement, lumbar region,” Doran agreed with the FCE report and imposed certain restrictions.
Thus, viewing the medical records as a whole, Dupell was diagnosed with intervertebral disc
herniation or displacement as a result of his 2014 injury, surgery was performed for this diagnosis,
and the 2016 FCE was performed to assess the restrictions arising from this diagnosis after the
surgery.
In a workers’ compensation case, the medical history contained in medical records does
not establish causation; however, the meaning of the words in a medical record can be interpreted
in their larger context and not read literally. See Lounnaphanh v. Monfort, Inc., 7 Neb. App. 452,
583 N.W.2d 783 (1998). The sufficiency of an expert’s opinion is judged in the context of the
expert’s entire statement. Zitterkopf v. Aulick Indus., 16 Neb. App. 829, 753 N.W.2d 370 (2008).
An appellate court examines the sufficiency of a medical expert’s statements from the expert’s
entire opinion and the record as a whole. Damme v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422(2014). See Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999) (physician’s
statement sufficient to establish medical causation when examined in larger context of physician’s
entire opinion and record as whole).
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Considering the record as a whole and in the light most favorable to Dupell, we conclude
that the trial judge could find sufficient medical causation between the 2014 work-related accident
and Doran’s permanent impairment rating and restrictions.
Apportionment.
The Appellants assert that the compensation court erred in failing to receive evidence of a
prior apportionable injury and in failing to apportion Ford Storage’s payment for a prior loss of
earning capacity. Specifically, the Appellants assert that the court should have received exhibit 16,
evidence of the settlement regarding Dupell’s 2007 injury. Exhibit 16 includes the parties’
application for an order approving the lump sum settlement and related documents, including a
doctor’s note that Dupell had sustained permanent disability to the cervical spine of 5 percent and
0 percent to the lumbar spine. The Appellants argue that exhibit 16 should have been received as
it was relevant to the issue of apportionment.
As a general rule, the Nebraska Workers’ Compensation Court is not bound by the usual
common-law or statutory rules of evidence, but its discretion to admit evidence is subject to the
limits on constitutional due process. Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d
610 (2016). In a civil case, the admission or exclusion of evidence is not reversible error unless it
unfairly prejudiced a substantial right of the complaining party. Id. The exclusion of evidence is
ordinarily not prejudicial where substantially similar evidence is admitted without objection. Id.Where evidence is cumulative to other evidence received by the court, its exclusion will not be
considered prejudicial error. Id.The compensation court’s exclusion of exhibit 16 was not prejudicial. Exhibit 16 does
clarify that at the time of the 2007 accident, the doctor assigned 5-percent impairment to Dupell’s
cervical spine and 0-percent impairment to Dupell’s lumbar spine. However, other substantially
similar evidence was admitted without objection and some of the information in exhibit 16 is
cumulative to other evidence received by the court showing that the 2007 injury was primarily to
Dupell’s neck and that a doctor assigned a 5-percent impairment rating. Further, had exhibit 16
been admitted into evidence, we conclude that it would not have changed the outcome on the issue
of apportionment.
To be apportionable, an impairment must have been independently producing some degree
of disability before an accident and must be continuing to operate as a source of disability after the
accident. Martinez-Najarro v. IBP, inc., 12 Neb. App. 504, 678 N.W.2d 114 (2004). In terms of
the test for determining when apportionment is appropriate, the term “disability” contemplates
impairment of earning capacity, not functional disability. Id. The problem of apportionment may
be encountered between an employer and an employee when disability from a prior injury
contributes to a claimant’s total disability following a subsequent injury. Id. Apportionment occurs
after the loss of earning capacity for a current injury has been determined; the amount of loss of
earning capacity for which the claimant has already been compensated is deducted from the
subsequent loss of earning capacity. Id.In Cummings v. Omaha Public Schools, 6 Neb. App. 478, 574 N.W.2d 533 (1998), this
court found apportionment appropriate. In that case, an employee sustained a work-related injury
that exacerbated a prior compensated work-related injury. The employee was awarded benefits for
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a 25-percent loss of earning capacity for his prior accident and that prior disability continued as a
source of lost earning capacity even after the employee’s subsequent accidents. Because the
employee had already been compensated for the prior disability, we found he could not be
compensated again for the original 25-percent disability caused by the prior injury.
Here, although Dupell was compensated for a 5-percent disability in connection with his
2007 injury, there is no evidence that his 2007 injury is continuing to act as a source of lost earning
capacity following the 2014 accident. Further, there is no evidence which suggests that the 2014
injury to Dupell’s lower back was an aggravation of any back injury from the 2007 accident.
The compensation court did not err in failing to apportion Ford Storage’s payment for a
prior loss of earning capacity.
Consideration of Evidence.
The Appellants assert that the compensation court erred in failing to consider medical
evidence that was relevant to Dupell’s work injury, physical health, and credibility. Specifically,
they claim that the court erred in disregarding exhibit 14, the 2015 FCE with invalid test results.
While they agree that the FCE cannot be used as a representation of Dupell’s current limitations,
they argue that exhibit 14 should have been considered in conjunction with the subsequent FCE,
which had its own “validity issues,” because it was “highly relevant to the extent of [Dupell’s]
injury, physical health, and credibility.” Brief for appellants at 25.
The compensation court did not entirely exclude exhibit 14 from evidence. We find no
error in its decision to rely more heavily on the subsequent FCE as a more accurate representation
of Dupell’s current restrictions. The court was clearly aware of the validity issues with respect to
both FCEs, and in terms of credibility, overall it generally found Dupell to be a credible witness.
As the trier of fact, 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. Nichols v. Fairway Bldg.
Prods., 294 Neb. 657, 884 N.W.2d 124 (2016). This assignment of error is without merit.
CONCLUSION
We find no error in the compensation court’s evidentiary rulings or in its findings regarding
causation of Dupell’s loss of earning capacity. Accordingly, we affirm the award in its entirety.
AFFIRMED.
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