Moss v. C&A Indus.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/15/2018 08:08 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
Willie Moss, also known as Lamont K irkland,
appellee, v. C&A I ndustries, doing business
as Aurstaff Temporary Agency,
employer, appellant.
___ N.W.2d ___
Filed May 8, 2018. No. A-17-465.
1. Evidence: Records: Appeal and Error. 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.
2. Judicial Notice: Records. Papers requested to be judicially noticed
must be marked, identified, and made a part of the record.
3. Judicial Notice: Appeal and Error. The trial court’s ruling should state
and describe what it is the court is judicially noticing. Otherwise, a
meaningful review of its decision is impossible.
4. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Cum. Supp. 2016), 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.
5. ____: ____. Findings of fact made by the Workers’ Compensation Court
have the same force and effect as a jury verdict and will not be set aside
unless clearly erroneous.
6. Workers’ Compensation: Evidence: Appeal and Error. When testing
the sufficiency of the evidence to support findings of fact made by the
Workers’ Compensation Court trial judge, the evidence must be consid-
ered in the light most favorable to the successful party and the success-
ful party will have the benefit of every inference reasonably deducible
from the evidence.
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
7. 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.
8. Workers’ Compensation: Proof. To obtain a modification of an award,
an applicant must prove, by a preponderance of evidence, that the
increase or decrease in incapacity was due solely to the injury resulting
from the original accident.
9. ____: ____. To obtain a modification of a prior award, the applicant
must prove there exists a material and substantial change for the bet-
ter or worse in the condition—a change in circumstances that justifies
a modification, distinct and different from the condition for which the
adjudication had been previously made.
10. Workers’ Compensation. Whether an applicant’s incapacity has
increased under the terms of Neb. Rev. Stat. § 48-141 (Reissue 2010) is
a finding of fact.
11. Workers’ Compensation: Expert Witnesses. Although a claimant’s
medical expert does not have to couch his or her opinion in the magic
words “reasonable medical certainty” or “reasonable probability,” the
opinion must be sufficient to establish the crucial causal link between
the claimant’s injuries and the accident occurring in the course and
scope of the claimant’s employment.
12. Expert Witnesses: Physicians and Surgeons: Appeal and Error. An
appellate court examines the sufficiency of a medical expert’s statements
from the expert’s entire opinion and the record as a whole.
13. Workers’ Compensation: Expert Witnesses: Physicians and
Surgeons. The Workers’ Compensation Court is the sole judge of the
credibility and weight to be given medical opinions, even when the
health care providers do not give live testimony.
14. ____: ____: ____. Resolving conflicts within a health care provider’s
opinion rests with the Workers’ Compensation Court, as the trier
of fact.
15. Workers’ Compensation: Evidence: Appeal and Error. If the record
contains evidence to substantiate the factual conclusions reached by
the trial judge in workers’ compensation cases, an appellate court is
precluded from substituting its view of the facts for that of the compen-
sation court.
16. Workers’ Compensation: Proof. To establish a change in incapacity
under Neb. Rev. Stat. § 48-141 (Reissue 2010), an applicant must show
a change in impairment and a change in disability.
17. Workers’ Compensation: Words and Phrases. In a workers’ compen-
sation context, impairment refers to a medical assessment, whereas dis-
ability relates to employability.
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
Appeal from the Workers’ Compensation Court: Daniel
R. Fridrich, Judge. Reversed and remanded for further
proceedings.
Jill Hamer Conway, of Prentiss Grant, L.L.C., for appellant.
Terrence J. Salerno and Danny C. Leavitt for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Moore, Chief Judge.
INTRODUCTION
C&A Industries, doing business as Aurstaff Temporary
Agency (the Appellant), appeals from the order of the Nebraska
Workers’ Compensation Court which entered a further award
of benefits to Willie Moss, also known as Lamont Kirkland
(Kirkland). For the reasons set forth herein, we reverse, and
remand for further proceedings.
BACKGROUND
Kirkland was 60 years old at the time of the second modi-
fication trial in February 2017. In July 2008, he was working
for the Appellant, a temporary agency, and was employed
as a laborer. On July 23, while engaged in the duties of his
employment, he suffered multiple cuts and abrasions to his
legs and arms, trauma to his head, a broken tooth, cervical
and lumbar strain, trochanteric bursitis, and a medial meniscus
tear and strain of the left knee as a result of an accident when
a load of “angle iron” fell from an overhead crane onto him.
He has not returned to work in any capacity since July 2008.
Kirkland underwent conservative treatment which alleviated
some symptoms, but when surgery was recommended for his
left knee injury, the Appellant refused to authorize further
medical treatment.
Kirkland sought workers’ compensation benefits, filing a
petition in the compensation court on January 28, 2009. He
alleged that on July 23, 2008, he sustained injuries in an
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
accident arising out of and in the course and scope of his
employment with the Appellant. Specifically, he alleged that
he was performing his regular job duties when a “Truss
Angle” shifted and fell on him, causing him to sustain injuries
to his “head, neck, back, arms, shoulders, knees, chest, legs
and feet.”
On December 10, 2009, the compensation court entered an
award, finding Kirkland was injured as described above. At
the time of the award, Kirkland remained temporarily totally
disabled due to his left knee injury. The court noted medical
evidence from Dr. Nicholas Steier (Kirkland’s family physi-
cian) and Dr. Mark Pitner (an orthopedic surgeon Kirkland
was referred to by Steier), suggesting that “the failure to
address the left knee injury ha[d] caused a gait disturbance
which aggravated [Kirkland’s] low back and hip which ha[d]
become symptomatic.” The court awarded temporary total dis-
ability, as well as future indemnity benefits, and it ordered the
Appellant to pay certain medical expenses and future medical
expenses reasonably necessary for evaluation and treatment of
Kirkland’s multiple injuries, including but not limited to the
recommended left knee arthroscopic surgery.
Following the first trial, Kirkland received the arthroscopic
procedure on his left knee, but as a postoperative complication,
he developed deep vein thrombosis and a pulmonary embo-
lism, which necessitated further hospitalization.
On October 20, 2010, the Appellant filed a petition to
modify in the compensation court, alleging that Kirkland had
sustained a material and substantial change in his condition
since the entry of the previous award that warranted a change
to or reduction in benefits owed by the Appellant. Kirkland
answered, denying the assertion of a change in his physical
condition, and filed a counterclaim, alleging that the Appellant
had failed to comply with the award and refused to pay many
of his medical bills as they were incurred.
The compensation court entered a further award on June
17, 2011. The court noted that it had reviewed the medical
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evidence as a whole and Kirkland’s testimony, which it found
credible. The court found that the scheduled member injury to
Kirkland’s left knee adversely affected him such that loss of
permanent earning power could not be fairly assessed without
considering the impact of the member injury upon his employ-
ability. The court determined that Kirkland’s scheduled member
injury and whole body injuries combined to render him perma-
nently totally disabled. The court awarded permanent indem-
nity benefits, including future indemnity benefits; ordered the
Appellant to pay certain specified medical expenses; and also
ordered the Appellant to pay future medical expenses reason-
ably necessary for evaluation and treatment of Kirkland’s July
2008 injuries.
On October 12, 2016, Kirkland filed the petition to modify
at issue in this appeal. He alleged that since entry of the award
and further award, his “treating physicians have evaluated and
treated [his] right knee and determined he requires a total knee
arthroplasty.” He alleged a material and substantial increase in
incapacity due solely to his compensable injuries, entitling him
to modification of the previous awards. He sought an order
requiring the Appellant to pay for “the treatment and medica-
tion necessary to address [his] work related condition” and
awarding him such workers’ compensation benefits to which
he was entitled, including an award of penalties and attor-
ney fees.
The Appellant answered, denying that treatment of Kirkland’s
right knee was compensable. The Appellant asserted that the
previous awards did not find Kirkland sustained a work-
related right knee injury and did not award future medical
care for a right knee injury. The Appellant also alleged that
Kirkland’s claims with regard to his right knee were barred by
res judicata.
Trial was held before the compensation court on February
28, 2017. The court heard testimony from Kirkland and
received various medical records and other documentary exhib-
its offered by the parties.
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
[1-3] We note that the Appellant references a September
2009 deposition of Steier in its brief on appeal. This deposi-
tion was not an exhibit offered directly as evidence at the
current modification trial and was presumably offered at a
prior trial. At the current trial, the Appellant asked the com-
pensation court to take judicial notice of all exhibits offered
and received at both prior trials and also asked the court to
take judicial notice of specific pages from certain, specific,
and previously offered exhibits. The court took judicial notice
as requested by the Appellant, but the only judicially noticed
exhibits included in the record on appeal were those exhib-
its from which Appellant requested the court to take judicial
notice of specific pages. Steier’s 2009 deposition was not one
of those exhibits. 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 con-
sidered. In re Estate of Radford, 297 Neb. 748, 901 N.W.2d
261 (2017). Papers requested to be judicially noticed must be
marked, identified, and made a part of the record. Id. The trial
court’s ruling should state and describe what it is the court is
judicially noticing. Id. Otherwise, a meaningful review of its
decision is impossible. Id. Because Steier’s 2009 deposition
was not included in the record, we are unable to review the
Appellant’s assertions with respect to it.
At the February 2017 modification trial, Kirkland testified
about his injuries and the history of his treatment. Kirkland
testified that the level of pain in his right knee at the time of
his accident and injury in July 2008 “started off as aching”
and then his right knee condition “developed until the point
where [he] would have popping as well as almost the same
type of procedure [sic] as [his] left knee.” Kirkland testified
that although one of his treating doctors in 2008 noted he
might have some damage to his right knee, no doctor told him
prior to 2016 that he needed surgery on his right knee. He also
noted that at some point, Pitner told him, “‘Your knee is start-
ing to wear down from the constant use of it.’” Pitner further
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MOSS v. C&A INDUS.
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told Kirkland, “‘Because you’re putting more strain on it by
using it as your only support . . . it’s wearing down.’”
Kirkland underwent left knee replacement surgery in April
2016. Kirkland indicated that since his left knee replacement
surgery, he has been relying primarily upon his right leg
when he walks. He testified further that as he went through
rehabilitation following his left knee replacement surgery, he
favored his right knee “to hold [him] up” and that “it got to
the point” where Pitner recommended surgery on the right
knee. Kirkland testified that he wanted to undergo that sur-
gery and that he was asking the court to order payment for
that surgery.
Kirkland was on pain and antidepressant medication at the
time of trial. Despite having formerly been “a world class
fighter” and “involved in that kind of activity,” he had never
been on pain medication or antidepressants prior to his July
2008 work accident and had only been to the hospital once “to
get an examination to fight against [sic] foreign countries.”
Kirkland testified that he had not suffered any new injuries
since 2008.
Kirkland’s trial testimony is consistent with his answers to
interrogatories, served on the Appellant in March 2009, and
his testimony in a January 2017 deposition that were received
into evidence at trial. In Kirkland’s interrogatory answers, he
stated that he sustained injuries to “his head, neck, back, arms,
shoulders, knees, chest, legs and feet” in the July 2008 acci-
dent. (Emphasis supplied.) In his deposition, Kirkland testified
he had right knee pain on the day of the accident. He testified
further that he showed both of his knees to his work supervi-
sor on the Monday following the accident and that his right
knee was swollen. Kirkland testified that he continued to have
pain in his right knee but that it was “overshadowed” by the
pain in his left knee.
Kirkland’s trial testimony is also supported by the medical
evidence received at trial, and although we have not noted
every such complaint in our analysis, the medical evidence
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
reflects continuing complaints of right knee pain and/or pop-
ping since the time of the July 2008 accident. For example, in
2008, Kirkland complained of bilateral knee popping during
aquatic physical therapy on August 22. He complained of right
knee pain during a defense medical examination by a doc-
tor on December 9, but the doctor found the examination of
Kirkland’s knee otherwise “not remarkable” with “no specific
physical findings.”
The medical records show further complaints about
Kirkland’s right knee in 2009 and 2010. In January 2009,
Pitner recorded that Kirkland complained of right knee pain.
During a visit to the “Rejuvenation Center” in March, Kirkland
noted that his right knee “pops.” In October 2010, when he
visited another medical clinic, Kirkland marked both his left
and right knee on a pain diagram.
Kirkland’s complaints of right knee pain continued in 2011
and 2012. He complained of bilateral knee pain to Pitner in
July 2011 and was diagnosed with “[b]ilateral degenerative
arthritis of the knees.” In his notes from that visit, Pitner
stated, “The right knee really was not included in [Kirkland’s]
previous work comp injury and was not a part of discussion
today. [Kirkland] does know, however, that it is fairly worn as
well.” Pitner discussed “knee replacement” with Kirkland at
that time, but it is unclear from Pitner’s notes whether they dis-
cussed replacement of both knees or just the left knee. Pitner’s
notes do show, however, that Kirkland’s left knee bothered him
more at that time. Pitner administered cortisone injections into
both of Kirkland’s knees in September 2012 due to his com-
plaints of bilateral knee pain.
Kirkland continued to treat with Pitner from late 2012
through April 2016 when Pitner performed replacement sur-
gery on Kirkland’s left knee. During that time, Kirkland com-
plained of bilateral knee pain. In September 2013, Pitner again
administered cortisone injections into both of Kirkland’s knees.
Pitner also injected both knees on various occasions between
April 2014 and January 2016.
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
On April 11, 2016, Pitner performed a “left total knee
arthroplasty” on Kirkland. During a followup visit 2 weeks
after the left knee surgery, Kirkland stated he wanted to “begin
working on getting prior authorization through workmen’s
compensation for the right total knee arthroplasty.” Pitner
administered a cortisone injection to Kirkland’s right knee at
that visit.
Causation opinions from three doctors concerning Kirkland’s
right knee were received into evidence at trial. The first cau-
sation opinion is from Dr. Erik Otterberg, who conducted
an independent medical examination regarding Kirkland’s
right knee on September 2, 2016. In his report, Otterberg
responded to certain questions. As to whether Kirkland’s right
knee injury was a preexisting condition, related to the July
2008 accident, or caused by a subsequent condition or acci-
dent, Otterberg responded that he did not have any documen-
tation of any preexisting right knee problems. He found no
mention of the right knee problem initially after the accident,
but noted the medical examination of Kirkland in December
2008, in which a doctor evaluated Kirkland’s right knee
and noticed some right knee pain. With regard to causation,
Otterberg stated, “With [Kirkland’s] denying right knee prob-
lems beforehand and no documentation of pre-existing right
knee conditions, I would conclude that this could be related
to the July 23, 2008 event with some probability.” In response
to the question of whether Kirkland’s right knee condition
represented a material and substantial increase in incapac-
ity “since June 17, 2011 due solely to the injury of July 23,
2008,” Otterberg stated, “The progression of the right knee
pain and arthritis would progress from the time of the initial
event to current.” And, as to whether any right knee replace-
ment surgery would be reasonably medically necessary as a
result of the July 2008 accident or due to a preexisting condi-
tion, regardless of the July 2008 accident, he stated, “Again,
with [Kirkland’s] denying having any knee problems prior to
this and with no documentation of treatment for right knee
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MOSS v. C&A INDUS.
Cite as 25 Neb. Ct. App. 877
problems before this, I think that it is somewhat reasonable to
equate his need for a [right] knee replacement with the event
on July 23, 2008.”
The next causation opinions are from Steier, who also treated
Kirkland during the period when Pitner was treating Kirkland.
On September 21, 2016, Steier wrote in a letter addressed “To
Whom It May Concern”:
Kirkland is a patient under my care who suffered a work
comp injury on July 23, 2008. Since that time he has had
neck pain, back pain, shoulder pain and bilateral hip and
knee pain. He underwent left total knee arthroplasty. He
continues with treatment for his neck, back, shoulder and
hip pain. He was scheduled for right total knee arthro-
plasty, but apparently work comp is questioning whether
this right knee pain is work related. I reviewed his medi-
cal records. I see documentation in the medical records
that he started developing right knee pain as far back as
August 9, 2010. It is reasonable to assume and one could
argue that the right knee pain developed as a direct result
of his work comp injuries as his gait and weightbearing
changed which may have stressed his right knee.
Then on January 26, 2017, Steier issued a checkbox type of
report in which he opined “with a reasonable degree of medi-
cal probability” that Kirkland’s injuries to his neck, back, head,
right knee, and left knee and his hip pain were the result of
the work-related accident of 2008; that the medical care and
treatment he rendered to Kirkland as a result of these injuries
was reasonable and necessary; that Kirkland was at maximum
medical improvement for all injuries except his right knee
for which surgery was still pending; and that Kirkland would
need future medical care and treatment as a result of all of
these injuries.
The final relevant causation opinion is found in a February
2, 2017, letter Pitner wrote to Kirkland’s counsel:
This response is . . . to your letter faxed, dated 01/26/17,
requesting a narrative report with regard to causality
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and a potential Worker’s Compensation case for the left
[sic] knee. [Kirkland] has been seen in the office and
treated for an injury to the right knee, which was deter-
mined to be related to an injury at work. I have also
treated him for progressive degenerative disease of the
left knee and made the recommendation with proceeding
with joint replacement.
On March 29, 2017, the compensation court entered a fur-
ther award of benefits to Kirkland. The court first addressed
the Appellant’s assertion that Kirkland’s claim was barred by
res judicata. The court noted Kirkland’s claims of right knee
injury in the 2008 accident and evidence about Kirkland’s
right knee injury. The court also noted that the original award
did not find that Kirkland suffered a right knee injury in the
2008 accident. Because Kirkland claimed to have injured
his right knee in the 2008 accident and because an injury to
Kirkland’s right knee was not included in the 2009 award,
the court determined that Kirkland was barred from reliti-
gating that issue pursuant to the doctrine of res judicata or
issue preclusion.
The compensation court determined, however, that Kirkland
was not precluded from seeking modification of the original
award. The court stated that Kirkland could recover benefits
for a right knee injury “if he can prove his right knee injury/
condition stems from his compensable left leg injury, low
back injury, neck injury or hip injury” and if he proves the
requirements for a modification under Neb. Rev. Stat. § 48-141
(Reissue 2010). The court outlined Kirkland’s testimony and
the medical evidence about Kirkland’s right knee issues, and it
noted and analyzed the causation opinions of Pitner, Otterberg,
and Steier.
Given the detail of the compensation court’s analysis of the
causation opinions, we reproduce it here as follows:
The opinions [of Pitner, Otterberg, and Steier] are the
extent of the “causation” opinions offered at trial. Not
one doctor opined [Kirkland’s] right knee condition was
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Cite as 25 Neb. Ct. App. 877
unrelated to the accident on July 23, 2008, although there
are problems with each of the aforementioned opinions.
The Court will address each opinion individually.
Initially, . . . Pitner’s opinion appears to causally
relate [Kirkland’s] right knee injury to the accident on
July 23, 2008 based upon the theory that his right knee
was actually hurt in the accident. If that is the case, that
opinion is legally irrelevant as this Court has concluded
that [Kirkland] is barred from relitigating that issue. In
complete candor, however, it is unclear how . . . Pitner
relates [Kirkland’s] right knee problem to the accident on
July 23, 2008. That lack of clarity does not aid [Kirkland]
given it is [Kirkland’s] burden to prove his right knee
injury was solely caused by the injuries suffered to either
his hip, low back, neck or left knee. This Court concludes
that . . . Pitner’s opinion does not carry [Kirkland’s] bur-
den of proof given the lack of clarity and certainty about
what exactly his opinion is.
The same criticism can be lodged towards . . .
Otterberg’s opinion. He does not identify how [Kirkland’s]
right knee injury is causally related to the accident on
July 23, 2008, but he too seems to opine the right knee
was initially injured in the accident on July 23, 2008.
That opinion would also be legally irrelevant given the
Court’s ruling on res judicata. Furthermore . . . Otterberg
employs the word “could” when providing his opinion,
and it is well recognized that expert medical testimony
based upon “could,” “may,” or “possibly” lacks the defi-
niteness required to support an award from the Workers’
Compensation Court. . . . Consequently, the Court finds
that . . . Otterberg’s opinion is insufficient to carry
[Kirkland’s] burden.
. . . Steier’s opinion has some of the same problems
as those of . . . Otterberg. . . . Steier also uses the
words “could” and “may” when stating his opinion. On
the other hand, he at least identifies that [Kirkland’s]
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right knee problem[] was caused by [Kirkland’s] altered
weight bearing and gait. Moreover, . . . Steier cleaned
up the deficiencies created by using the words “could”
and “may” by issuing his follow-up check box report in
which he stated [Kirkland’s] right knee injury was the
result of the accident on July 23, 2008. Ultimately, the
Court finds . . . Steier’s opinion to be legally sufficient to
carry [Kirkland’s] burden of proof and persuasion partic-
ularly when considering the Nebraska Supreme Court’s
decision in [Hohnstein v. W.C. Frank], 237 Neb. 974,
468 N.W.2d 597 (1991). In [Hohnstein], the Nebraska
Supreme Court affirmed the trial court’s modification of
an award where the only expert opinion to support the
claimant’s case was one in which [the doctor] testified
that the claimant had problems after the fall “and one
would assume they were causally related.” [Id.] at 983,
468 N.W.2d at 604.
The Court finds [Kirkland] suffered a material and
substantial change in his physical condition for the worse
due solely to the injuries suffered by him in the accident
on July 23, 2008. The Court finds [Kirkland’s] right knee
injury was caused by his altered gait and weight bearing
caused by the original injuries suffered in the accident
on July 23, 2008. The Court relies upon the opinion of
. . . Steier to so find.
The compensation court ordered the Appellant to pay for the
right knee total replacement recommended by Pitner and for
all followup care necessitated by the surgery. The court also
ordered the Appellant to pay certain medical bills and denied
Kirkland’s request for attorney fees. The Appellant subse-
quently perfected this appeal.
ASSIGNMENTS OF ERROR
The Appellant asserts that the compensation court erred
in (1) finding Kirkland experienced a material and substan-
tial change for the worse in his right knee condition distinct
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and different since the prior trials and awards due solely to
his July 2008 accident and (2) adopting medical opinions in
support of its ruling that did not meet the required burden
of proof.
STANDARD OF REVIEW
[4-7] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp.
2016), 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 war-
rant 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. Hintz v. Farmers Co-op Assn., 297 Neb. 903,
902 N.W.2d 131 (2017). Findings of fact made by the Workers’
Compensation Court have the same force and effect as a jury
verdict and will not be set aside unless clearly erroneous. Id.
When testing the sufficiency of the evidence to support find-
ings of fact made by the Workers’ Compensation Court trial
judge, the evidence must be considered in the light most favor-
able to the successful party and the successful party will have
the benefit of every inference reasonably deducible from the
evidence. Id. An appellate court is obligated in workers’ com-
pensation cases to make its own determinations as to questions
of law. Kohout v. Bennett Constr., 296 Neb. 608, 894 N.W.2d
821 (2017).
ANALYSIS
The Appellant asserts that the compensation court erred in
finding Kirkland experienced a material and substantial change
for the worse in his right knee condition distinct and different
since the prior trials and awards due solely to his July 2008
accident and adopting medical opinions in support of its ruling
that did not meet the required burden of proof.
Under § 48-141, an award of the compensation court may
be modified:
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(1) At any time by agreement of the parties with the
approval of the Nebraska Workers’ Compensation Court;
or (2) if the parties cannot agree, then at any time after
six months from the date of the agreement or award, an
application may be made by either party on the ground
of increase or decrease of incapacity due solely to the
injury . . . .
[8-10] To obtain a modification of an award, an applicant
must prove, by a preponderance of evidence, that the increase
or decrease in incapacity was due solely to the injury resulting
from the original accident. Rader v. Speer Auto, 287 Neb. 116,
841 N.W.2d 383 (2013). To obtain a modification of a prior
award, the applicant must prove there exists a material and
substantial change for the better or worse in the condition—a
change in circumstances that justifies a modification, distinct
and different from the condition for which the adjudication had
been previously made. Id. Whether an applicant’s incapacity
has increased under the terms of § 48-141 is a finding of fact.
Rader v. Speer Auto, supra.
The Appellant argues that because the record shows Kirkland
has had ongoing right knee pain, right knee popping, and an
altered gait since the time of the July 2008 accident, he failed
to prove that his right knee condition at the time of the 2017
trial was distinct and different from and materially worse than
his condition at the time of the prior trials. The Appellant also
argues that Steier’s causation opinion, which the court relied
on, was insufficient.
[11-14] Although a claimant’s medical expert does not have
to couch his or her opinion in the magic words “reasonable
medical certainty” or “reasonable probability,” the opinion
must be sufficient to establish the crucial causal link between
the claimant’s injuries and the accident occurring in the course
and scope of the claimant’s employment. Damme v. Pike
Enters., 289 Neb. 620, 856 N.W.2d 422 (2014). An appellate
court examines the sufficiency of a medical expert’s statements
from the expert’s entire opinion and the record as a whole.
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Id. The Workers’ Compensation Court is the sole judge of
the credibility and weight to be given medical opinions, even
when the health care providers do not give live testimony. Id.
Resolving conflicts within a health care provider’s opinion
rests with the Workers’ Compensation Court, as the trier of
fact. Id.
The record shows that Kirkland has complained of right
knee pain and popping since the July 2008 accident, but that
his left knee symptoms were initially worse. The record also
shows that after Kirkland’s left knee replacement surgery, he
relied primarily on his right knee to support him, stressing it
to the point that Pitner recommended right knee replacement
surgery in 2016. The record shows that prior to Pitner’s recom-
mendation, no doctor had recommended replacement surgery
for Kirkland’s right knee.
The compensation court relied on Steier’s causation opin-
ions to find Kirkland suffered a material and substantial
change in his physical condition for the worse due solely to
the injuries suffered by him in the 2008 accident. The court
specifically found that “[Kirkland’s] right knee injury was
caused by his altered gait and weight bearing caused by the
original injuries.”
[15] If the record contains evidence to substantiate the fac-
tual conclusions reached by the trial judge in workers’ com-
pensation cases, an appellate court is precluded from substitut-
ing its view of the facts for that of the compensation court.
Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78
(2015). Considering the evidence in the light most favorable
to Kirkland and examining Steier’s statements from his col-
lective opinions and the record as a whole, we find the record
supports the compensation court’s determination that Kirkland
suffered a material and substantial change in his physical con-
dition for the worse due solely to the injuries he suffered in
the July 2008 accident. The injury to Kirkland’s right knee, at
the time of the instant modification, was distinct and different
from the injuries compensated in the prior awards. The fact
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that Kirkland complained of some right knee issues before the
prior awards does not preclude this finding as the condition of
the right knee at the time of the instant modification had pro-
gressed to require a total replacement.
[16,17] However, our analysis under § 48-141 does not end
there. To establish a change in incapacity under § 48-141, an
applicant must show a change in impairment and a change in
disability. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383
(2013); Jurgens v. Irwin Indus. Tool Co., 20 Neb. Ct. App. 488,
825 N.W.2d 820 (2013); Bronzynski v. Model Electric, 14 Neb.
App. 355, 707 N.W.2d 46 (2005). A change in impairment
refers to the employee’s physical condition or health status.
See, Rader v. Speer Auto, supra; Bronzynski v. Model Electric,
supra. Disability, on the other hand, is defined in terms of
employability and earning capacity rather than loss of bodily
function. See, Rader v. Speer Auto, supra; Wolfe v. American
Community Stores, 205 Neb. 763, 290 N.W.2d 195 (1980);
Bronzynski v. Model Electric, supra. In a workers’ compen-
sation context, impairment refers to a medical assessment,
whereas disability relates to employability. Rader v. Speer
Auto, supra; Jurgens v. Irwin Indus. Tool Co., supra.
In Rader v. Speer Auto, supra, the employee submitted
evidence showing that he had experienced a slight increase
in his loss of earning power since an earlier award. The trial
court found that although the employee experienced an addi-
tional loss of earning power, this loss of earning power alone
did not serve to establish a material and substantial change
for the worse in her condition as required by § 48-141(2). On
appeal, the Nebraska Supreme Court affirmed the denial of
modification under § 48-141. The Supreme Court first noted
that although there were competing loss of earning power
opinions, the trial judge was entitled to accept the opinion
of one expert over another. The Supreme Court then noted,
however, that with respect to impairment, there was expert
evidence to show that the employee did not experience a mate-
rial or substantial change in her condition. The Supreme Court
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concluded that although the finding of a modest increase in
the employee’s loss of earning capacity supported a worsen-
ing of disability, the record as a whole failed to establish a
worsening of impairment, and that thus, the trial court’s find-
ing that the employee did not prove an increase in incapacity
under § 48-141 was not clearly wrong.
In this appeal, we are presented with the opposite scenario
than that existing in Rader v. Speer Auto, supra. Here, the
trial court found a substantial change in Kirkland’s physi-
cal condition; in other words, a worsening of his impair-
ment. However, the trial court did not address the second
prong of § 48-141—a change in disability. Presumably, this
prong was not addressed below because Kirkland was already
found to be permanently totally disabled in the 2011 fur-
ther award. Nevertheless, we cannot ignore the requirement
that an employee show both a change in impairment and a
change in disability before being entitled to a modification
under § 48-141. Nor are we aware of any exceptions under
§ 48-141 to the requirement of proving an increase in dis-
ability in cases where a worker is already at permanent total
disability. Obviously, there was no evidence adduced in this
case regarding an increase in disability because Kirkland was
already found to be totally disabled. Because Kirkland failed
to establish a worsening of disability, it was clear error for the
trial court to find that he suffered an increase in incapacity
under § 48-141.
Although the trial court erred in finding an increase in inca-
pacity to support modification under § 48-141, this does not
necessarily end our inquiry. In his petition to modify, Kirkland
alleged a material and substantial change in his condition
to support modification under § 48-141, but he also alleged
that the 2011 further award provided for future medical care
and treatment, that he now required a total knee arthroplasty,
and that this change was due to his compensable injuries.
The relief sought in the petition was an order requiring the
Appellant to comply with the 2011 further award by paying
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for the treatment necessary to address his work-related condi-
tion—the right knee total arthroplasty. This is the relief that the
trial court granted, albeit under a § 48-141 finding, which we
have determined to be in error.
An award of future medical treatment may include treat-
ment which becomes reasonably necessary only after entry
of the award. See, Sellers v. Reefer Systems, 283 Neb. 760,
811 N.W.2d 293 (2012); Pearson v. Archer-Daniels-Midland
Milling Co., 282 Neb. 400, 803 N.W.2d 489 (2011). The ques-
tion becomes whether the requested treatment is necessary
to treat the employee’s work-related injuries. See Rodriguez
v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232
(2005). If the necessity of the treatment has been established,
it may be compensable notwithstanding the fact that it was not
specifically included in the award of future medical benefits.
See Sellers v. Reefer Systems, supra.
The foregoing cases regarding future medical treatment are
generally premised upon Neb. Rev. Stat. § 48-120 (Cum. Supp.
2016) (award of medical expenses) rather than § 48-141. An
employee may file a motion to compel payment of medical
expenses following an award of future medical expenses. See
Zitterkopf v. Aulick Indus., 16 Neb. Ct. App. 829, 753 N.W.2d 370
(2008) (employee previously awarded permanent total dis-
ability and future medical expenses obtained order compelling
employer to pay for medication necessary to address reaction
to pain medication).
Here, although the compensation court found that Kirkland
was precluded under the doctrine of res judicata from claiming
he sustained an injury to his right knee in the 2008 accident, a
finding that Kirkland does not challenge on appeal, the court
further found that Kirkland was not precluded from proving
that his right knee injury stems from the injuries found to be
suffered in the 2008 accident. This finding is consistent with
Sellers v. Reefer Systems, supra; Pearson v. Archer-Daniels-
Midland Milling Co., supra; and Rodriguez v. Hirschbach
Motor Lines, supra.
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Because we conclude that the trial court erroneously pre-
mised its award of medical bills for the right knee treatment
upon § 48-141, we must reverse its decision. However, because
the court did not specifically address Kirkland’s request to
compel payment of these expenses under the further award,
we remand the cause for further proceedings consistent with
this opinion.
CONCLUSION
The compensation court was clearly wrong in finding that
Kirkland suffered an increase in incapacity under § 48-141.
We reverse the March 29, 2017, further award and remand the
cause for further proceedings consistent with this opinion.
R eversed and remanded for
further proceedings.