Kaiser v. Metropolitan Util. Dist.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/26/2018 08:18 AM CDT
- 38 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38Dan K aiser, appellant and cross-appellee,
v. M etropolitan Utilities District,
appellee and cross-appellant.
___ N.W.2d ___
Filed June 26, 2018. No. A-17-686.
1. 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.
2. ____: ____. Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless they are
contrary to law or depend on findings of fact which are clearly wrong in
light of the evidence.
3. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless they are clearly wrong.
4. Judgments: Appeal and Error. In testing the sufficiency of the evi-
dence to support the findings of fact, an appellate court considers the
evidence in the light most favorable to the successful party, every con-
troverted fact must be resolved in favor of the successful party, and the
appellate court gives the successful party the benefit of every inference
reasonably deducible from the evidence.
5. Workers’ Compensation: Appeal and Error. With respect to questions
of law in workers’ compensation cases, an appellate court is obligated to
make its own determination.
6. Workers’ Compensation: Proof. To recover under the Nebraska
Workers’ Compensation Act, a claimant must prove by a preponder-
ance of the evidence that an accident or occupational disease arising out
- 39 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38of and occurring in the course of employment caused an injury which
resulted in disability compensable under the act.
7. Workers’ Compensation: Expert Witnesses. Unless its nature and
effect are plainly apparent, an injury is a subjective condition requir-
ing an expert opinion to establish the causal relationship between the
employment and the injury or disability.
8. Workers’ Compensation: Appeal and Error. The determination of
causation is, ordinarily, a matter for the trier of fact, whose factual find-
ings will not be set aside unless clearly wrong.
9. Workers’ Compensation: Notice. Knowledge imputed to an employer
can satisfy the notice requirement of Neb. Rev. Stat. § 48-133 (Reissue
2010).
10. ____: ____. When an employer’s foreman, supervisor, or superintendent
has knowledge of the employee’s injury, that knowledge is imputed to
the employer.
11. Presumptions: Proof: Words and Phrases. A rebuttable presumption
is generally defined as a presumption that can be overturned upon the
showing of sufficient proof.
12. Workers’ Compensation: Presumptions: Proof. In all cases not oth-
erwise provided for by statute or by these rules, a presumption imposes
on the party against whom it is directed the burden of proving that the
nonexistence of the presumed fact is more probable than its existence.
This rule applies to the rebuttable presumption that an opinion regarding
loss of earning capacity expressed by a vocational rehabilitation coun-
selor appointed or selected pursuant to Neb. Rev. Stat. § 48-162.01(3)
(Reissue 2010) is correct.
13. Moot Question: Appeal and Error. An appellate court need not reach
any remaining assignment of error which is rendered moot by its deci-
sion to reverse, and remand for further proceedings.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed in part, and in part reversed and
remanded with direction.
James E. Harris and Britany S. Shotkoski, of Harris &
Associates, P.C., L.L.O., for appellant.
Thomas D. Wulff, of Law Office of Thomas D. Wulff, P.C.,
and Mark Mendenhall, of Metropolitan Utilities District, for
appellee.
Moore, Chief Judge, and Pirtle and A rterburn, Judges.
- 40 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38A rterburn, Judge.
I. INTRODUCTION
Dan Kaiser appeals and Metropolitan Utilities District
(MUD) cross-appeals from an order entered by the Nebraska
Workers’ Compensation Court finding Kaiser had suffered
a work-related injury, awarding a 70-percent loss of earning
capacity, and finding him entitled to 300 weeks of permanent
partial disability benefits and 43.1429 weeks of temporary
total disability benefits. On appeal, Kaiser argues the com-
pensation court erred in failing to find him to have suffered
a 100-percent loss of earning capacity and in failing to find
him to be totally disabled. On cross-appeal, MUD argues the
compensation court erred in finding Kaiser suffered an acci-
dent and injury arising out of the scope of his employment and
in finding Kaiser gave adequate notice of his alleged injury
under the workers’ compensation statutes. For the reasons set
forth below, we affirm in part, and in part reverse and remand
with direction.
II. BACKGROUND
On March 10, 2015, Kaiser was employed by MUD as a
gas plant engineer. Kaiser alleges that on March 10, he injured
his lower back lifting a 150-pound toolbox by himself at a
MUD facility. Kaiser continued to work for the remainder of
the day. He returned to the main MUD facility and informed
Joe Pawoll that he had injured his back while working that
day. Pawoll was the senior maintenance mechanic who rou-
tinely assigned work duties and ensured that employees’ work,
including Kaiser’s work, was performed correctly. Pawoll
told Kaiser that he should inform Thomas Costello, the per-
son designated by MUD as Kaiser’s supervisor, about his
injury. Kaiser was unable to find Costello and speak with him
that day.
Kaiser visited the office of Dr. Mark Shirley, his longstand-
ing family practice physician, on March 11, 2015, in order to
receive a testosterone treatment. Kaiser did not see Dr. Shirley
that day, because a nurse performed the injection procedure.
- 41 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38Kaiser then saw his chiropractor, Dr. Marshall Jacobs, on
March 12. No mention of his workplace injury is mentioned in
Dr. Jacobs’ reports; however, Kaiser testified that he did men-
tion the injury to Dr. Jacobs on that day.
On March 17, 2015, Kaiser had an office visit with Dr. John
Cook at a pain clinic. Kaiser was there for a medication refill,
and he informed the staff that he had injured his lower back
while at work. He reported that his pain level was a 6 out of
10, when at his last visit to Dr. Cook on February 20, he had
reported his pain level at 0 out of 10.
Kaiser has had a long history of back pain prior to his
alleged workplace injury. We will not recount every medical
record or procedure, but Kaiser has been receiving treatment
for back pain on an ongoing basis since 2002. The longest
gap in treatment appears to be in 2011. Dr. Shirley diagnosed
Kaiser with thoracic spine pain, para lumbar spasm, and lum-
bar spine pain in January 2002. Dr. Shirley also noted right
lower extremity and interior thigh discomfort and radicu-
lopathy in his left leg. Kaiser was treated continuously by Dr.
Shirley through 2015, with the noted exception above.
Kaiser was treated by Dr. James Devney beginning in 2006.
Dr. Devney diagnosed Kaiser with chronic low-back pain,
degenerative disk disease, lumbar disk herniation, lumbar spi-
nal stenosis, and lumbar radiculitis on the left side. Kaiser was
treated by Dr. Devney from 2006 to 2009, and Kaiser received
repeated epidural steroid injections in his lumbar spine.
Kaiser visited Dr. Peter Lennarson in 2010 for low-back
pain and left leg pain. Dr. Lennarson agreed with Dr. Devney’s
previous diagnoses and believed surgical intervention may be
required in the future, but recommended continuing treatment
with Kaiser’s other doctors.
Kaiser subsequently began treating with Dr. Cook at the
pain clinic in 2012. Dr. Cook diagnosed Kaiser with opioid
dependence, lumbar radiculitis, and lumbar facet disease. Dr.
Cook prescribed medication to end Kaiser’s opioid dependence
and began treating Kaiser with a number of different therapies
- 42 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38to relieve his low-back pain. Kaiser was treated by Dr. Cook
through 2015.
In 2014, Kaiser underwent a gastric bypass surgery. He
weighed approximately 360 pounds at the time of the surgery.
Kaiser testified that after the surgery, his low-back pain had
greatly subsided and he was able to perform more physical
activities. By 2015, Dr. Cook noted that Kaiser’s weight had
dropped to 250 pounds and that Kaiser reported little to no
low-back pain. However, Kaiser’s chiropractor, Dr. Jacobs,
noted in December 2014 that Kaiser reported his low-back pain
to be “moderate to severe.”
Kaiser continued to treat with Dr. Cook regularly through
June 2015. He complained of constant low-back pain follow-
ing the alleged March 10 injury. On June 22, Dr. Shirley took
Kaiser off work due to “worsening” pain. Kaiser was referred
to Dr. John Hain, a neurologist, on June 23. Dr. Hain reviewed
Kaiser’s medical records, examined his previous MRI’s, and
determined that Kaiser had “3 levels of degeneration [and]
severe spinal stenosis [at multiple levels].” Dr. Hain recom-
mended “decompression at all three levels” and a L3-S1 spi-
nal fusion. Dr. Hain performed the recommended surgery on
July 17.
In a report dated August 5, 2016, Dr. Hain opined that the
alleged work-related back injury Kaiser suffered on March
10, 2015, was causally related to the need for Kaiser’s July
17 surgery. Dr. Hain also opined that the acute changes in
Kaiser’s medical condition and MRI results were related to the
alleged work-related injury. Dr. Shirley agreed with Dr. Hain’s
conclusion that Kaiser’s injury was caused by lifting the 150-
pound toolbox.
MUD provided Kaiser’s medical records to Dr. Chris Cornett
in order to provide a medical opinion as to whether Kaiser’s
medical condition was related to the alleged work-related
injury. Dr. Cornett stated that Kaiser had a multiyear history
of significant back and radicular leg pain into one or the other
leg. He reviewed the MRI’s of Kaiser, comparing the ones
from before the March 2015 accident to the one done after the
- 43 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38March 2015 accident and stated that Kaiser had “no new large
herniations, no fractures and I do not think given his multi-year
history of similar problems that his work condition had any
permanent affect or permanent change on his spine condition.”
Dr. Cornett ultimately opined that the two March incidents
could have temporarily aggravated Kaiser’s preexisting condi-
tion, but did not permanently injure Kaiser.
A functional capacity evaluation (FCE) was completed on
Kaiser on March 18, 2016. The FCE concluded that Kaiser
could “safely lift 55 pounds from 4-inch level and 80 pounds
from the crate handles . . . to waist level and 60 pounds to
shoulder level on an occasional basis.” He safely pushed
180 pounds and pulled 205 pounds. Kaiser did not meet
the requirements for working beyond the medium demand
classification.
Michael Newman served as the parties’ agreed-upon voca-
tional rehabilitation counselor. Newman authored a report dated
August 1, 2016. Newman determined that Kaiser’s restrictions
were appropriate and opined that he had sustained a 70- to
75-percent loss of earning capacity due to his work-related
injury. Newman concluded his report with the following: “If
this information proves to be untrue, substantially in error, or
new information comes to light I reserve the right to amend my
opinions accordingly.”
Dr. Hain endorsed the results of the FCE in a letter dated
April 19, 2016. In a June 6 “Physician’s Statement,” Dr.
Shirley referred to the FCE report for some of his responses
on the form. This form is not complete, but appeared to the
compensation court to be part of a claim for an insurance dis-
ability policy.
Dr. Shirley authored a report dated October 28, 2016, on
Kaiser’s medical condition. Dr. Shirley wrote that he dis-
agreed with the results of the FCE, stating that Kaiser should
be limited to “light sedentary level, with a maximum lifting
capacity of no more than 20 pounds on an occasional basis.”
He went on to write that Kaiser should “avoid any repetitive
bending, twisting, turning, and carrying any amount of weight
- 44 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38on uneven surfaces, up or down stairways.” Dr. Shirley con-
cluded by writing that Kaiser “should be limited to no more
than a four hour workday. This should include break periods
of ten minutes every couple of hours. He should also be given
the opportunity to change positions from sitting to standing
every fifteen minutes.”
Newman authored a supplemental report dated November 9,
2016. Newman stated that he had reviewed additional records,
including the reports by Drs. Hain and Shirley. He believed
that Dr. Shirley’s report was “vocationally significant” and
determined that Kaiser had “no measurable earning power at
the medium, light or sedentary physical demand level.”
After trial, the compensation court issued its findings in a
written order. The court found that on March 10, 2015, Kaiser
suffered a work-related injury. Kaiser had given sufficient
notice to MUD through notifying Pawoll. He was entitled
to temporary total disability and permanent partial disability.
Kaiser was not entitled to an award of future medical care or
attorney fees. His cause of action related to any alleged injury
occurring on March 20, 2015, was dismissed with prejudice.
Regarding its disability award, the compensation court issued
the following findings:
The Court has considered all the evidence and the
testimony of [Kaiser], his wife and Allen. The Court
finds [Kaiser] has suffered a 70% loss of earning capac-
ity as opined by Newman. The Court finds the restric-
tions set forth in the FCE are the appropriate restrictions
for [Kaiser]. The Court so finds for two reasons. First,
both Dr. Hain and Dr. Shirley endorsed the result of the
FCE, which were deemed valid. Dr. Shirley withdrew
his endorsement of the FCE but never explained why.
Obviously, at one point, the result of the FCE seemed
reasonable to him. What changed? Without any explana-
tion for the change in position by Dr. Shirley, the Court
is reticent to side with his more stringent restrictions set
forth in Exhibit 3. The results of the FCE were deemed
- 45 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38valid and adopted by the treating surgeon, which seems
both impartial and objective.
Secondly, the Court believes [Kaiser] can work.
[Kaiser] told Newman his pain is a 3 out of l0 with-
out activity and that he has constant low back pain and
leg pain. . . . It should be noted that [Kaiser] remained
employed by [MUD] while suffering from chronic back
pain from 2002 until June of 2015. [Kaiser] has worked
with pain for years. He has worked with leg pain, and he
has worked with back pain. In the many years prior to his
accident and while still remaining employed, [Kaiser’s]
pain has been called “excruciating,” rated as high as a 7
out of 10 and been described as “constant” and “chronic.”
[Kaiser] continued to work for [MUD] while admittedly
“babying his back.” . . . The crux of this evidence is
that [Kaiser] is capable of working and has experience
in working with self-imposed restrictions and through
pain. Based upon the opinion of Dr. Hain, the opinion
of Newman, and the preponderance of the evidence,
the Court finds [Kaiser] suffered a 70% loss of earning
capacity. [Kaiser] is entitled to PPD benefits at the rate of
$742.25 starting on April 19, 2016 and continuing for so
long until [Kaiser] has been paid 300 weeks of indemnity
benefits, which includes the 43.1429 weeks of TTD ben-
efits awarded to [Kaiser] earlier in this paragraph.
Kaiser appeals and MUD cross-appeals from that order.
III. ASSIGNMENTS OF ERROR
Kaiser argues the compensation court erred in failing to
find him to have suffered a 100-percent loss of earning
capacity and in failing to find him to be totally disabled. On
cross-appeal, MUD argues the compensation court erred in
finding Kaiser suffered an accident and injury arising out
of the scope of his employment and in finding Kaiser gave
adequate notice of his alleged injury under the workers’ com-
pensation statutes.
- 46 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38IV. STANDARD OF REVIEW
[1] 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 judg-
ment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the mak-
ing of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d
610 (2016).
[2-5] Determinations by a trial judge of the Workers’
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence. Id. On appellate
review, the factual findings made by the trial judge of the
Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless they are clearly wrong.
Gardner v. International Paper Destr. & Recycl., 291 Neb.
415, 865 N.W.2d 371 (2015). In testing the sufficiency of the
evidence to support the findings of fact, an appellate court
considers the evidence in the light most favorable to the suc-
cessful party, every controverted fact must be resolved in favor
of the successful party, and the appellate court gives the suc-
cessful party the benefit of every inference reasonably deduc-
ible from the evidence. Id. With respect to questions of law in
workers’ compensation cases, an appellate court is obligated to
make its own determination. Lovelace v. City of Lincoln, 283
Neb. 12, 809 N.W.2d 505 (2012).
V. ANALYSIS
We will first address MUD’s cross-appeal, because the
issues raised necessarily would preclude a reversal of the
compensation court’s award to Kaiser. We will then address
Kaiser’s issues raised on appeal.
- 47 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 381. MUD’s Cross-A ppeal
(a) Finding of Work-Related Injury
MUD argues that the compensation court erred in finding
that Kaiser had suffered a work-related injury on March 10,
2015. MUD argues that Kaiser had a long history of low-back
pain and that his medical condition simply progressed, rather
than being caused by an acute injury.
[6,7] To recover under the Nebraska Workers’ Compensation
Act, a claimant must prove by a preponderance of the evi-
dence that an accident or occupational disease arising out of
and occurring in the course of employment caused an injury
which resulted in disability compensable under the act. Potter
v. McCulla, 288 Neb. 741, 851 N.W.2d 94 (2014). Unless its
nature and effect are plainly apparent, an injury is a subjective
condition requiring an expert opinion to establish the causal
relationship between the employment and the injury or dis-
ability. Id.[8] The determination of causation is, ordinarily, a matter
for the trier of fact, whose factual findings will not be set aside
unless clearly wrong. Kerkman v. Weidner Williams Roofing
Co., 250 Neb. 70, 547 N.W.2d 152 (1996). We cannot say the
court was clearly wrong in concluding the evidence established
that Kaiser had suffered a work-related injury to his lower
back. The compensation court, after a detailed review of the
medical evidence, concluded as follows:
In total, the medical records from Drs. Cook, Jacobs,
Shirley and Devney support Dr. Hain’s opinion that
[Kaiser’s] preexisting condition was aggravated or made
worse as a result of the accident on March 10, 2015.
The medical records also generally support [Kaiser’s]
testimony that his back was improved after his bariatric
surgery. These facts support the conclusion that [Kaiser]
suffered a new injury with new symptoms and resulting
disability as a result of the accident on March 10, 2015.
Dr. Hain opined that while [Kaiser] had some long-
standing back pain prior to March 10, 2015, the accident
- 48 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38on March 10, 2015 aggravated, exacerbated or combined
with his preexisting condition in his lumbar spine to make
his condition worse so as to necessitate surgery. . . . Dr.
Hain’s opinion regarding causation meets the standard
set forth by the Nebraska Supreme Court in Spangler v.
State . . . .
....
The Court finds that on March 10, 2015, [Kaiser] suf-
fered an accident arising out of and in the course of his
employment with [MUD] resulting in an injury to his
low back (specifically an aggravation of his preexisting
degenerative disc disease from L3 to Sl). The Court relied
on the opinions of Drs. Hain and Shirley to so find.
Based on the record before us, we conclude that the evidence
supports the findings of the compensation court. We find the
compensation court did not err in finding that Kaiser had suf-
fered a work-related injury on March 10, 2015, which aggra-
vated his preexisting degenerative disk disease.
(b) Requisite Notice
MUD argues that Kaiser did not provide sufficient notice
of his work-related injury in accordance with MUD’s policy
regarding suspected work-related accidents or injuries. MUD
argues that Pawoll was not a supervisor, since he did not have
the authority to grant vacations, conduct employee reviews,
grant time off of work, discipline employees, or give awards.
[9,10] Neb. Rev. Stat. § 48-133 (Reissue 2010) provides, “No
proceedings for compensation for an injury under the Nebraska
Workers’ Compensation Act shall be maintained unless a notice
of the injury shall have been given to the employer as soon
as practicable after the happening thereof . . . .” Knowledge
imputed to an employer can satisfy the notice requirement
of § 48-133. Risor v. Nebraska Boiler, 277 Neb. 679, 765
N.W.2d 170 (2009). When an employer’s foreman, supervisor,
or superintendent has knowledge of the employee’s injury, that
knowledge is imputed to the employer. Id. The compensation
court found that Kaiser’s notice to Pawoll constituted notice
- 49 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38under the act. Evidence was adduced that Kaiser considered
Pawoll to be his supervisor. Pawoll routinely assigned work to
employees and ensured the work was satisfactorily completed.
Employees were instructed to follow Pawoll’s directions. The
evidence further established that Pawoll would act as foreman
in the absence of Costello, the person designated by MUD
as Kaiser’s supervisor. The evidence demonstrates that on
Pawoll’s advice, Kaiser looked for Costello on the date of the
injury, but could not find him. Based upon our review of the
record, we find that the compensation court was not clearly
wrong in its determination that Kaiser provided adequate notice
of his work-related injury to MUD.
2. K aiser’s A ppeal
(a) Loss of Earning Capacity
Kaiser argues the compensation court erred in failing to give
a rebuttable presumption of correctness to the final loss of
earning power report of Newman, the agreed-upon vocational
rehabilitation counselor. He argues that this report included
the final opinions of Drs. Shirley and Hain, which led to
Newman’s supplementing his first report.
Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010) provides in
relevant part:
If entitlement to vocational rehabilitation services is
claimed by the employee, the employee and the employer
or his or her insurer shall attempt to agree on the choice
of a vocational rehabilitation counselor . . . . Any loss-
of-earning-power evaluation performed by a vocational
rehabilitation counselor shall be performed by a coun-
selor . . . according to the procedures described in this
subsection. It is a rebuttable presumption that any opinion
expressed as the result of such a loss-of-earning-power
evaluation is correct.
[11,12] A “‘rebuttable presumption’” is generally defined
as a presumption that can be overturned upon the showing of
sufficient proof. Variano v. Dial Corp., 256 Neb. 318, 326, 589
- 50 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38N.W.2d 845, 851 (1999). In all cases not otherwise provided
for by statute or by these rules, a presumption imposes on the
party against whom it is directed the burden of proving that the
nonexistence of the presumed fact is more probable than its
existence. Id. The Nebraska Supreme Court held that this rule
applies to the rebuttable presumption that an opinion regarding
loss of earning capacity expressed by a vocational rehabilita-
tion counselor appointed or selected pursuant to § 48-162.01(3)
is correct. Variano, supra.In Variano, the Supreme Court considered a factual sce-
nario much like the present case. A vocational rehabilitation
counselor prepared a loss of earning capacity report based on
the impairment ratings of two doctors and an FCE. The voca-
tional rehabilitation counselor’s initial report stated that the
employee “‘will have sustained’” a 25- to 30-percent loss of
earning power after receiving vocational rehabilitation. Id. at
326, 589 N.W.2d at 851. After issuing this report, the voca-
tional rehabilitation counselor received clarifying information
from the employee’s treating physician, and in a letter to the
employee’s attorney, the vocational rehabilitation counselor
concluded that the employee was totally disabled. The trial
court relied on the initial report in reaching its conclusion that
the claimant had sustained a 30-percent loss of earning capac-
ity. The Supreme Court reversed. The court found “the phrase
‘loss-of-earning-power evaluation’ in § 48-162.01(3) to refer
to a process as opposed to a document.” Variano, 256 Neb. at
326, 589 N.W.2d at 851. As such, the letter that followed the
initial report was part of this previously “incomplete” evalua-
tion process. Id. The court found that the subsequent letter was
therefore entitled to the rebuttable presumption of correctness.
Finding no evidence in the record which could rebut the final
opinion expressed by the vocational rehabilitation counselor,
the court found that the trial court erred in not finding that the
claimant’s loss of earning power was total.
We find Variano to be applicable in this matter. Newman’s
first report concluded that Kaiser’s restrictions were appropriate
- 51 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38and opined that he had sustained a 70- to 75-percent loss of
earning capacity due to his work-related injury. Newman con-
cluded his report with the following: “If this information proves
to be untrue, substantially in error, or new information comes
to light I reserve the right to amend my opinions accordingly.”
Thereafter, Newman received the additional reports authored
by Drs. Shirley and Hain. Newman then issued his supple-
mental letter finding Kaiser to have sustained a 100-percent
loss of earning capacity. Therefore, as was the case in Variano,
we must find that Newman’s second report was entitled to the
rebuttable presumption analysis. MUD argues, and the trial
court agreed, that the issue comes down to which expert should
be credited in determining what capabilities Kaiser had demon-
strated. The trial court clearly questioned Dr. Shirley’s apparent
change of opinion from the answers given on a questionnaire as
part of Kaiser’s application for long-term disability benefits on
June 6, 2016, until his written report issued on October 28. In
the questionnaire, Dr. Shirley referenced the FCE when inquiry
was made about Kaiser’s physical restrictions. However, in the
October report, he found that Kaiser’s restrictions and limita-
tions were much more severe. The trial court asked, “What
changed?” It then found that the lack of explanation by Dr.
Shirley for his change of position made the court reticent to
side with the more stringent restrictions.
In Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845(1999), a similar argument was made. The employer argued
that the vocational rehabilitation counselor’s final opinion was
rebutted by the evidence of physical restrictions given by some
of the medical experts. The Supreme Court held, however, that
“workers’ compensation benefits . . . ‘are not measured by
loss of bodily function, but by reduction in earning power or
employability.’” Id. at 327, 589 N.W.2d at 852 (citing Sidel v.
Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980)). The
court then held that no sufficient competent evidence existed in
the record to rebut the opinions of the vocational rehabilitation
counselor as to earning power.
- 52 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
KAISER v. METROPOLITAN UTIL. DIST.
Cite as 26 Neb. App. 38In this case, it is apparent that Newman, the vocational
rehabilitation counselor, relied on the October 2016 opinion of
Dr. Shirley to reach the conclusions he made in his November
letter. While contrasting opinions exist in the record as to
Kaiser’s physical restrictions, the only evidence in the record
as to earning capacity is Newman’s opinion. Much like in
Variano, supra, we can find no competent evidence herein
which would rebut Newman’s final opinion. For this reason,
we reverse, and remand to the compensation court with the
direction that the compensation court find that Kaiser sustained
a 100-percent loss of earning capacity.
(b) Kaiser’s Ability to Work
[13] Kaiser argues that the compensation court erred in its
finding that he was not totally disabled based on the court’s
belief that Kaiser was able to work while in pain. We need
not reach Kaiser’s remaining assignment of error, which is
rendered moot by our decision to reverse, and remand with
direction on the foregoing issue. See Richardson v. Children’s
Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).
VI. CONCLUSION
We conclude that the compensation court did not err in find-
ing Kaiser to have suffered a work-related injury. Additionally,
we find that the court did not err in finding that Kaiser pro-
vided sufficient notice under the statutes. We find the compen-
sation court did err in not finding Kaiser to have sustained a
100-percent loss of earning capacity due to his injury, and we
reverse the finding of the compensation court and remand the
cause with direction to find that Kaiser sustained a 100-percent
loss of earning capacity.
A ffirmed in part, and in part reversed
and remanded with direction.