McNish v. Menard, Inc.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MCNISH V. MENARD, INC.
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).
KERRY MCNISH, APPELLEE,
V.
MENARD, INC., APPELLANT.
Filed October 29, 2019. No. A-19-042.
Appeal from the Workers’ Compensation Court: DIRK V. BLOCK, Judge. Affirmed.
Timothy E. Clarke and Eric J. Sutton, of Baylor Evnen, L.L.P., for appellant.
Jeffrey F. Putnam, of Law Offices of Jeffrey F. Putnam, P.C., L.L.O., for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Menard, Inc., appeals from the Nebraska Workers’ Compensation Court’s award of
benefits to Kerry McNish resulting from an injury he suffered while working for Menard on
February 3, 2014. The compensation court ordered Menard to pay McNish temporary total
disability payments and permanent total disability payments. The court also ordered Menard to
pay for future medical and hospital care necessary as a result of McNish’s February 3 injury. For
the reasons discussed herein, we affirm the compensation court’s findings and award of benefits
to McNish.
BACKGROUND
McNish experienced back pain and injuries long before the injury at issue in the present
matter. McNish drove buses beginning in 1985 until he began doing drywall work in Kearney,
Nebraska. In 1989, he lifted something as part of a drywall job and injured his back. He also
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experienced pain in his right leg at that time. McNish had a laminectomy on August 29, 1989, and
received physical therapy thereafter, which he said eventually resolved both his back and leg pain.
In a note dated November 9, 1992, McNish’s surgeon recommended sedentary work and said that
McNish had achieved maximum medical improvement following the 1989 injury.
McNish then worked as an energy auditor, which required him to inspect homes’ attics and
crawl spaces, until 1996 when he returned to drywalling. McNish testified that a wall fell on him
while he was working in the latter part of 2000, which injured his neck. He saw Dr. Dennis
McGowan, an orthopedic surgeon, who diagnosed him with a torn rotator cuff and herniated disk.
McNish said that he did not remember any work restrictions being implemented at that time. As a
result of that injury, he entered a vocational rehabilitation program and earned an associate degree
in computer support in 2004 and an associate degree in web page design in 2005. McNish
eventually settled a workers’ compensation claim relative to that neck injury by lump sum
settlement on the basis of his loss of earning capacity. The lump sum settlement was based on a
compromise between the parties of loss of earning capacity in the amount of 40 to 45 percent.
During a deposition on June 15, 2015, McGowan testified that he recalled treating McNish
for some sort of neck injury in 2001 and described it as “pretty classic neck pain.” McGowan
remembered performing x-ray-guided injections into McNish’s neck, which he said mostly
resolved the pain. He said that McNish had some persistent symptoms that he was able to live
with. McGowan suggested that McNish remain on nonnarcotic medications to treat the persistent
symptoms.
On September 14, 2015, Menard filed a motion to compel records related to McGowan’s
treatment of McNish in 2001. In that motion, Menard alleged that it had subpoenaed McGowan’s
records on or about March 31, 2015, but did not receive them. The motion further alleged that
Menard had received from a secondary source a “few records” regarding McGowan’s treatment
of McNish in 2001. Menard alleged that it sent a second subpoena, which outlined the additional
records being requested, but had not received those records either. A loss of earning power
evaluation report prepared in 2001 cited a note by McGowan restricting McNish to not lift over 30
pounds on an occasional basis, over 10 pounds on a frequent basis, or over 5 pounds on a constant
basis. The report said that McNish was able to work at the light-medium physical demand level.
The report further noted that McGowan had assigned a permanent impairment rating of 11 percent
with respect to McNish as the whole person. Menard filed another motion to compel on November
28, 2017, again alleging that McGowan was withholding records from his treatment of McNish in
2001.
McGowan said that he typically does not retain records for longer than 7 years unless they
were from “cases that were interesting.” Nevertheless, McGowan said during his deposition that
he had staff looking for any records related to his treatment of McNish in 2001 and that the records
were not “immediately available.” He said that “it would take a while to go looking for” any
records from 2001. McGowan said that he would “see if [he] could find those old reports” to satisfy
Menard’s request.
Trial was held on June 29, 2018. The compensation court began by overruling Menard’s
motion in limine to exclude the evidence and testimony of McGowan. While the court recognized
that McGowan had failed to produce records related to McNish’s 2001 neck injury and treatment,
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the court declined to hold McNish responsible for his physician’s recordkeeping practices. The
court noted that the records sought by Menard may have been lost since 2001 or never even existed
in the first place. Thereafter, McNish testified in his own behalf, and Menard elicited testimony
from Rheanna Mallam, its Human Resources Coordinator in the Kearney, Nebraska, Menard’s
store. No other witnesses testified, but numerous exhibits were received from both parties.
The parties in this case do not dispute that McNish was employed by Menard on February
3, 2014. McNish began working for Menard in 2005 in the hardware department. A year later, he
began working as a salesman to contractors and remained in that position through February 2014.
In that role, McNish met with contractors to establish accounts at Menard’s, explain promotional
sales, and sell products to them. He also serviced existing contractor accounts. Within a month of
beginning the contractor sales position, McNish also began delivering their orders, which included
lumber, appliances, bathtubs, and showers. McNish spent 2 to 3 days each week traveling to meet
with contractors and spent the rest of the week in the Menard’s store in Kearney.
On February 3, 2014, another employee helped McNish load an overhead garage door
bundle onto his work truck to deliver to a customer. The other employee was inexperienced,
however, and lifted his end too high, which caused the bulk of the weight to shift to McNish.
McNish testified that he “felt [his] back go” and “felt a short pain” in his mid and lower back.
Although McNish finished loading his truck and continued working until the end of the day, he
also submitted an accident report and told his manager what had happened.
McNish went to work on the day after the accident, but he worked in the store rather than
going out on sales calls. Two days after the injury, McNish sought treatment from his family
doctor. Although not reflected in the medical record of his visit, McNish remembered that his
family doctor put him on light duty at work. McNish’s family doctor did not prescribe any
medication, physical therapy, or any other treatment at that time. The doctor’s notes reflect that
McNish complained of “back pain and back stiffness” but not “lower extremity numbness.”
Menard accommodated the light duty restriction, allowing McNish to work in the store at a sales
desk. Other employees substituted for McNish on his sales calls and deliveries.
McNish testified that the pain worsened during the days after the initial accident and
eventually spread to his right leg and foot. He said that he experienced a loss of sensation in his
right leg. He again sought treatment from his family doctor on February 21, 2014, this time for
“lower extremity numbness, lower extremity tingling and lower extremity weakness” during that
appointment according to medical records. The medical records show that McNish was referred to
McGowan following that appointment.
On February 28, 2014, McNish again saw his family doctor, describing back and leg pain
that caused difficulty walking. During that appointment, he requested to be off work until his
appointment with McGowan, which was scheduled for March 3. McNish’s family doctor wrote
him a note to stay off work until after his appointment with McGowan.
McNish complained of back pain and more significant leg pain during his appointment
with McGowan. McGowan observed that McNish walked with an antalgic gait and determined
that he likely had a herniated disc, which was causing back pain and radicular pain in his right leg.
He had an MRI scan during a followup appointment, which did not show an acute significant disc
herniation. However, McGowan determined that McNish had bulging discs, a significant tear in
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the lumbar 2-3 disc, and an essential large bulge in the 3-4 disc. McGowan’s working diagnosis at
that time was that McNish suffered a sprain to his back with an injury to the disc. McNish had a
series of three to four nerve root injections in his back, which eliminated his pain for about 4 hours.
McGowan recommended that McNish either have a fusion surgery or have a dorsal column
stimulator surgically implanted. McGowan testified that the dorsal column stimulator could
control McNish’s leg pain, which he described as more significant than McNish’s back pain.
McNish said that he did not want to go ahead with the fusion surgery.
McGowan’s final diagnosis was that McNish had suffered a sprain to his back with disc
degeneration and that he experienced worse pain in his right leg than in his back. To a reasonable
degree of medical certainty, McGowan opined that McNish’s symptoms were caused by the injury
he suffered on February 3, 2014. McGowan testified that his opinion was based on McNish
suffering no symptoms before the February 3 accident, experiencing a back sprain on February 3,
and then experiencing lasting symptoms that were not improving. McGowan said that it was “more
likely than not” that the back sprain McNish suffered as a result of lifting a bundle of garage doors
on February 3 caused his disc to tear.
McGowan further testified that additional treatments may improve McNish’s condition and
that he had achieved maximum medical improvement without additional treatments. In particular,
McGowan was optimistic that the dorsal column stimulator could relieve two-thirds of McNish’s
leg pain. McGowan placed a sedentary work restriction on McNish, which he said was a direct
result of the February 3, 2014, injury because McNish was able to do regular heavy work before
the injury but not after the injury. He further noted that McNish would not need medical treatment
if the February 3 injury had not occurred.
On September 17, 2014, McNish was examined by Dr. Christopher Cornett, who was
retained by Menard. McNish said that Cornett “didn’t do anything,” did not perform an exam, and
spent “[l]ess than 10 minutes” with him. However, Cornett’s report indicates that he performed a
physical examination of McNish. Cornett’s report also shows that he reviewed “all available
imaging and all available records,” including McGowan’s treatment notes and notes from
McNish’s family doctors. McNish told Cornett of his laminectomy in 1989 and described having
no other problems until the injury on February 3, 2014. Cornett found that McNish’s number one
complaint was right lower extremity pain, which McNish rated at a 10 out of 10, accompanied by
low back pain as well.
Cornett’s review of different x rays and MRI’s showed that McNish had mild degenerative
disc disease and very mild bulging but no nerve compression or large herniations. Cornett opined
that McNish “likely suffered a lumbar strain at the time of his accident or perhaps a temporary
aggravation of his preexisting degenerative disc disease.” According to Cornett, there was no
explanation based on the records and injury for McNish’s ongoing complaints or lower extremity
symptoms, and he said that any ongoing problems were more likely related to McNish’s
preexisting degenerative disc disease rather than the injury. Cornett further opined that McNish
needed only 3 months’ temporary work restrictions from lifting and bending. He anticipated no
permanent work restrictions. Accordingly, Cornett placed McNish at maximum medical
improvement 3 to 4 months after the injury on February 3, 2014.
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McGowan disagreed with Cornett’s assessment regarding the root of McNish’s injury.
McGowan determined that the lifting accident on February 3, 2014, caused McNish’s injury and
that the injury was unrelated to preexisting degenerative disc disease as Cornett determined. The
degenerative disc disease was not the cause of McNish’s injury, according to McGowan, because
McNish had been symptom-free until the February 3 lifting accident.
McNish requested an independent medical examination pursuant to Neb. Rev. Stat.
§ 48-134.01 (Reissue 2010), which the compensation court ordered. The compensation court
appointed Dr. Geoffrey McCullen to conduct the independent examination, which consisted of
reviewing McNish’s medical charts but did not include a physical examination of McNish.
McCullen’s findings were in line with Cornett’s. McCullen opined that McNish likely experienced
a temporary aggravation of his preexisting condition as a result of the injury on February 3, 2014,
and that McNish had achieved maximum medical improvement within 4 months after his injury.
McCullen further opined that McNish had not suffered any permanent impairment or permanent
work restrictions resulting from the February 3 injury and that any persisting symptoms resulted
from the natural progressions of his preexisting condition. McCullen disagreed with McGowan’s
recommendation that McNish be treated with a dorsal column stimulator.
In January 2015, McNish went into atrial fibrillation (AFib) during the same period of time
that he was being treated with an external dorsal column stimulator. McNish spent 2 days in the
hospital, and his AFib has been treated with prescription medication since then. He therefore did
not have a dorsal column stimulator surgically implanted as McGowan had recommended but said
that he would consider the procedure if his heart improved. McNish later had two heart surgeries,
one each in April and May 2017.
On November 21, 2016, McNish saw Dr. John McClellan for treatment of his low back
and right leg pain. McClellan’s records show that McNish described his pain beginning after lifting
a heavy object at work and worsening and spreading as time passed. McNish told McClellan about
his 1989 laminectomy and said that he did not have troubles at work until the injury on February
3, 2014. He further described having ongoing back and leg pain since his injury.
McClellan performed an x ray, which revealed degenerative changes at multiple levels of
McNish’s spine. He also performed an electromyography scan (EMG), which revealed a
significant injury on McNish’s right side. Based on his review of the records and examination of
McNish, McClellan agreed with McGowan and determined that the February 3, 2014, injury was
an aggravation of a preexisting degenerative condition. The condition of McNish’s back was
changed by the accident on February 3. McClellan believed that the surgical implantation of a
dorsal column stimulator would alleviate McNish’s symptoms and suggested a trial before a
permanent implant.
On March 24, 2017, McNish underwent an outpatient surgical procedure in order to begin
a trial period with a dorsal column simulator. Records show that McNish “had complete resolution
of his symptoms during the time of the spinal cord stimulator trial” and was walking and riding
his bicycle without discomfort.
However, at the time of trial on June 29, 2018, McNish described his back as hurting every
day without relief. He said the pain causes difficulty doing things, including walking very far
“because [his] leg feels like [he’s] not going to be able to take another step.” He described enduring
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“[s]harp pain, sharp, sharp pain” in his leg. Even sitting causes him pain. Nevertheless, McNish
testified that, due to his heart condition, he did not want to undergo surgery for the permanent
implantation of a dorsal column stimulator.
Despite McNish’s ongoing pain, he testified that he is able to ride his bike for about 20
minutes every day on flat ground, which helps manage his pain. He mows his lawn but spreads the
work across 3 days in order to avoid getting worn out, which was not a concern before he was
injured. Additionally, McNish cares for his grandson, who was 7 years old at the time of trial, and
does “light housework” such as washing the dishes. McNish said that he still drives a car but now
does not drive outside of town. He acknowledged that he never contacted Menard to see if there
were any sedentary positions available because he was in pain all day long. He also did not seek
employment elsewhere.
Mallam, Menard’s Human Resources Coordinator in Kearney, testified that one of her
standard duties is facilitating employees’ returns to work following an injury. In consultation with
managers, she is able to accommodate any work restrictions and has accommodated sedentary
work restrictions for other employees in the Kearney store. Mallam described accommodating
McNish when he returned to work immediately following his injury and said that he was able to
sit or stand as needed at the contractor desk and was not required to lift heavy objects.
After McCullen advised Mallam that McNish could return to work with no restrictions, she
wrote to McNish regarding his continued employment with Menard, first on January 22, 2015, and
again on January 30. In her January 30 letter, she told McNish that he remained employed by
Menard and was expected to return to work based on McCullen’s report that he was fully capable
of performing his full duties without restriction. The letter also advised McNish that Menard would
consider his lack of response within 5 days as voluntary termination. The letter Mallam sent was
returned with a note that said “DEAR MENARDS PLEASE STOP SENDING ME MAIL!” and
was signed by McNish. Menard received no other response from him. Accordingly, McNish’s
employment with Menard was terminated.
Following trial, the compensation court entered its award on December 12, 2018. The court
found that McNish was credible. The court further found that the medical opinions offered by
McGowan and McClellan, McNish’s treating physicians, were more compelling than the opinions
offered by McCullen and Cornett. The court noted that McCullen only observed McNish once,
and Cornett based his medical opinion on a records review and no physical examination. Although
McNish argued that his average weekly wage was $882.23 and Menard argued that it was $704,
the court calculated McNish’s average weekly wage to be $853.46. The court reviewed two
vocational rehabilitation specialists’ reports, finding that Lisa Porter, who was appointed by the
court, offered more persuasive opinions than Patricia Conway, who was retained by Menard.
Based on Porter’s report, the court determined that McNish was permanently and totally disabled
as a result of the workplace injury he suffered on February 3, 2014. The court therefore found that
McNish was entitled to benefits of $568.97 per week from February 28, 2014, through June 15,
2015, for temporary total disability. The court found that McNish was also entitled to benefits of
$568.97 per week for so long as he remained permanently and totally disabled.
Menard appeals.
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ASSIGNMENTS OF ERROR
Menard assigns five restated errors on appeal. Menard argues that the compensation court
erred in (1) denying its motion in limine to exclude the evidence and testimony of McGowan, (2)
finding that McNish suffered a permanent aggravation of a preexisting condition, (3) finding that
McNish was permanently and totally disabled and adopting Porter’s loss of earning capacity
analysis, (4) not apportioning McNish’s injuries, and (5) calculating McNish’s average weekly
wage to be $853.46.
STANDARD OF REVIEW
Admission of evidence is within the discretion of the 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).
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), a judgment, order, or award of
the 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 judgment, order, or award; or (4) the findings of fact by the compensation court do
not support the order or award. Martinez v. CMR Constr. & Roofing of Texas, 302 Neb. 618, 924
N.W.2d 326 (2019).
An appellate court is obligated in workers’ compensation cases to make its own
determinations as to questions of law. Id. Findings of fact made by the compensation court after
review have the same force and effect as a jury verdict and will not be set aside unless clearly
erroneous. Id.
ANALYSIS
MCGOWAN TESTIMONY AND EVIDENCE
Menard first argues that the compensation court erred in overruling its motion in limine to
exclude the evidence and testimony of McGowan, one of McNish’s treating physicians. Menard
contends that McGowan withheld medical records from his treatment of McNish’s neck injury in
2001. Upon our review, we find that the compensation court did not abuse its discretion in
admitting the evidence and testimony of McGowan.
The Nebraska Rules of Evidence do not apply to proceedings before the compensation
court. Neb. Rev. Stat. § 27-1101(4)(d) (Reissue 2016). Subject to the limits of constitutional due
process, the Legislature has granted the compensation court the power to prescribe its own rules
of evidence and related procedure. Moyers v. International Paper Co., 25 Neb. Ct. App. 282, 905
N.W.2d 87 (2017). The court can admit such evidence in order to investigate cases in the manner
it judges is best calculated to ascertain the substantial rights of the parties and to carry out justly
the spirit of the Nebraska Workers’ Compensation Act. Olivotto v. DeMarco Bros. Co., 273 Neb.
672, 732 N.W.2d 354 (2007). The act permits the compensation court to admit evidence that, over
a proper objection, could not be introduced in a trial court in this state. Olivotto v. DeMarco Bros.
Co., supra.
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There is no evidence in our record to support Menard’s allegation that McGowan
surreptitiously withheld medical records from his 2001 treatment of McNish’s neck injury. Instead,
McGowan testified that his office typically retained patients’ medical records for only 7 years
unless a case was particularly “interesting.” McGowan further testified that McNish exhibited
“pretty classic neck pain” when he was treated in 2001. Menard subpoenaed McGowan’s records
in 2015. Therefore, we have no reason to suspect that McGowan’s office still possessed records
relevant to McNish’s routine neck injury some 14 years later when they were sought by Menard.
Moreover, the record reflects that McGowan directed his staff to search for any relevant files, but
their efforts were unsuccessful. Therefore, we find no abuse of discretion by the compensation
court in denying Menard’s motion in limine to exclude the evidence and testimony of McGowan.
PERMANENT AGGRAVATION OF PREEXISTING CONDITION
Menard next argues that the compensation court erred in determining that McNish suffered
a permanent aggravation of a preexisting condition as a result of the February 3, 2014, workplace
injury. By extension, Menard argues that the compensation court erred in finding the opinions of
McGowan and McClellan more persuasive than the opinions of Cornett and McCullen. The record
before us contains sufficient evidence to support the compensation court’s credibility
determinations and conclusions regarding the nature of McNish’s injury and, thus, we find no
error.
In a workers’ compensation case involving a preexisting condition, the claimant must prove
by a preponderance of evidence that the claimed injury or disability was caused by the claimant’s
employment and is not merely the progression of a condition present before the
employment-related incident alleged as the cause of the disability. Swanson v. Park Place
Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003). Such claimant may recover when an injury,
arising out of and in the course of employment, combines with a preexisting condition to produce
disability, notwithstanding that in the absence of the preexisting condition, no disability would
have resulted. Id.
As the trier of fact, the single judge of the compensation court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony. Nichols v. Fairway Bldg.
Prod., 294 Neb. 657, 884 N.W.2d 124 (2016). Where the record presents nothing more than
conflicting medical testimony, an appellate court will not substitute its judgment for that of the
compensation court. Id.
The record in the present case presents conflicting medical testimony, and the
compensation court determined that McGowan’s and McClellan’s opinions that McNish suffered
a permanent aggravation of a preexisting condition were more persuasive than the opinions of
Cornett and McCullen. McGowan first treated McNish for the present injury one month after it
occurred. He observed McNish walk with an antalgic gait, and McNish told him that he was
experiencing back pain and right leg pain. McGowan ordered MRI scans, treated McNish with
nerve root injections and a dorsal column stimulator, and recommended the possibility of a fusion
surgery. Based on his observations and treatment, McGowan determined to a reasonable degree of
medical certainty that McNish’s symptoms were caused by the workplace injury he suffered on
February 3, 2014. McGowan further testified during his deposition on June 15, 2015, that McNish
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had achieved maximum medical improvement unless he underwent further treatment. McGowan’s
treatment recommendation was the surgical implantation of a dorsal column stimulator.
McClellan treated McNish in November 2016 while he was experiencing back and leg
pain, which he described as ongoing since the time of the workplace injury on February 3, 2014.
An x ray and EMG revealed degenerative changes to McNish’s spine and a significant injury to
the right side of his back. Like McGowan, McClellan also determined that McNish had suffered
an aggravation of a preexisting condition based on his observations and records review.
Meanwhile, Cornett testified that there was no medical explanation for McNish’s
symptoms and found that any ongoing issue was caused by his preexisting degenerative disc
disease and not the workplace injury. Cornett believed that the workplace injury caused only
temporary issues for McNish and determined that he had reached maximum medical improvement
within 3 to 4 months after the injury. McCullen likewise determined that McNish had suffered a
temporary aggravation of a preexisting condition and that any continuing symptoms were caused
by the natural progression of his preexisting condition. He opined that McNish reached maximum
medical improvement within four months after the injury.
In addition to expert medical testimony, the court also received testimony from McNish
regarding his own injuries, which the court found credible. McNish testified that his back and leg
pain continued through the time of trial and acted to limit his mobility and activity. He can still
drive but now only drives in town, and he can still mow his lawn, but it takes him 3 days. McNish
said he is in constant pain, which worsens if he walks for too long. Because he had gone into AFib
while he was being treated with an external dorsal column stimulator, he said that he did not want
to go through surgery in order to permanently implant a dorsal column stimulator on account of
his heart problems. He said that he would only consider having one permanently implanted if his
heart improved.
Recognizing that the compensation court is entitled to determine the credibility and
persuasiveness of witnesses and that our own judgment shall not serve as a substitution, we find
that the compensation court did not err in relying on the opinions of McGowan and McClellan.
Thus, we affirm the compensation court’s determination that McNish suffered a permanent
aggravation of a preexisting condition.
DISABILITY AND LOSS OF EARNING CAPACITY
Menard next argues that the compensation court erred in finding McNish permanently and
totally disabled because its conclusion was based on unreliable testimony from McNish and the
court-appointed vocational rehabilitation specialist, Porter. Menard contends that Porter’s analysis
was flawed because it did not properly value McNish’s computer degrees. McNish argues in
response that the court properly found him to be credible and that the court-appointed vocational
rehabilitation specialist’s findings were supported by the evidence. We find that the evidence
supports the compensation court’s conclusion that McNish was permanently and totally disabled
and, thus, affirm.
Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a workers’ compensation claimant may
receive permanent or temporary workers’ compensation benefits for either partial or total
disability. “Temporary” and “permanent” refer to the duration of disability, while “total” and
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“partial” refer to the degree or extent of the diminished employability or loss of earning capacity.
Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015).
Temporary disability is the period during which the employee is submitting to treatment, is
convalescing, is suffering from the injury, and is unable to work because of the accident. Escobar
v. JBS USA, 25 Neb. Ct. App. 527, 909 N.W.2d 373 (2018). Temporary disability benefits under the
Nebraska Workers’ Compensation Act are discontinued at the point of maximum medical
improvement because a disability cannot be both temporary and permanent at the same time.
Krause v. Five Star Quality Care, 301 Neb. 612, 919 N.W.2d 514 (2018).
When an injured employee has reached maximum medical improvement, any remaining
disability is, as a matter of law, “permanent,” within the meaning of the Nebraska Workers’
Compensation Act. Krause v. Five Star Quality Care, supra. Total disability exists when an injured
employee is unable to earn wages in either the same or a similar kind of work he or she was trained
or accustomed to perform or in any other kind of work which a person of the employee’s mentality
and attainments could perform. Escobar v. JBS USA, supra. Total and permanent disability does
not mean a state of absolute helplessness, however. Gardner v. International Paper Destr. &
Recycl., supra. It means that because of an injury (1) a worker cannot earn wages in the same kind
of work, or work of a similar nature, that he or she was trained for or accustomed to perform or (2)
the worker cannot earn wages for work for any other kind of work which a person of his or her
mentality and attainments could do. Id.
Whether a plaintiff in a Nebraska workers’ compensation case is totally disabled is a
question of fact. Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016). In
testing the sufficiency of the evidence to support the findings of fact in a workers’ compensation
case, every controverted fact must be resolved in favor of the successful party, and the successful
party will have the benefit of every inference that is reasonably deducible from the evidence. Id.
Moreover, as the trier of fact, the compensation court is the sole judge of the credibility of
witnesses and the weight to be given their testimony. Id.
In the present case, McNish described his limitations that were caused by his workplace
injury, and the court found him to be credible. He testified that he was in constant pain, unable to
walk for extended periods of time, and unable to drive more than short distances. Moreover, his
treating physician, McGowan, testified on June 15, 2015, that McNish had achieved maximum
medical improvement unless he underwent further treatment such as having a dorsal column
stimulator surgically implanted. McNish testified that he did not want to undergo that surgery
because he had gone into AFib while being treated with an external dorsal column stimulator and
had ongoing heart troubles. McClellan agreed that McNish had reached maximum medical
improvement unless he underwent additional treatment. The court found McGowan and McClellan
to be credible and their opinions to be more persuasive than Cornett’s and McCullen’s. The court
therefore determined that McNish was temporarily disabled from February 28, 2014, through June
15, 2015, achieved maximum medical improvement on June 15, 2015, and was permanently
disabled thereafter. We find no error in these determinations.
The court next found that McNish was totally disabled as of June 15, 2015. This
determination was largely based on the reports of the court-appointed vocational rehabilitation
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specialist, Porter. Porter interviewed McNish and completed a transferable skills analysis and two
loss of earning power reports.
When determining a loss of earning capacity for an injured worker, the four factors to
consider under § 48-121 are the worker’s (1) eligibility to procure employment generally, (2)
ability to earn wages, (3) ability to hold a job obtained, and (4) capacity to perform the work in the
job in which the worker is engaged. Martinez v. CMR Constr. & Roofing of Texas, 302 Neb. 618,
924 N.W.2d 326 (2019). Loss of earning capacity determinations by court-appointed vocational
rehabilitations specialists are entitled to a rebuttable presumption of correctness. Neb. Rev. Stat.
§ 48-162.01(3) (Reissue 2010). See, e.g., Ladd v. Complete Concrete, 13 Neb. Ct. App. 200, 690
N.W.2d 416 (2004).
Porter testified that her reports did not account for McNish’s workplace injury in 2000 or
restrictions because he told her he was fully recovered and was performing at 100 percent of his
ability and was doing work at Menard beyond his prior restrictions. She further testified that she
had not seen McNish’s loss of earning power report related to his workplace injury in 2000.
Porter’s transferable skills analysis excluded McNish’s information technology and web
support degrees, which he obtained in 2004 and 2005. She excluded consideration of those degrees
because “[i]t was old education,” and McNish had no job experience in those areas. Porter said
that he would have to go back and take refresher courses in order for her to consider those skills
because “[a]nything beyond 15 years is archaic work history and you throw it out the window.”
Degrees obtained in 2004 and 2005 were “darn close” to being considered archaic. She described
those industries as evolving so quickly that McNish’s skills from 2004 and 2005 were essentially
not transferrable to present job opportunities. Porter concluded that even if McNish were
considered eligible for computer-related occupations, nearly all such occupations require greater
than sedentary physical demands, meaning that he was nevertheless still unable to work in those
potential occupations.
Porter found that McNish had access to 190 jobs prior to his injury based on his work
history and without having any restrictions. Following his injury and because of the sedentary
work restriction placed on him by McGowan and McClellan, Porter found that McNish’s
transferable skills permitted him access to only 11 jobs. Thus, McNish’s injury resulted in him
losing access to 95 percent of his preinjury labor market. Due to the 95-percent reduction in
McNish’s access to the labor market, Porter determined that he may be totally disabled under the
“odd-lot doctrine,” and the compensation court agreed.
Conway, Menard’s vocational specialist, disagreed with the opinion offered by Porter. She
disagreed with Porter’s exclusion of McNish’s computer degrees. Conway further disagreed due
to Porter’s exclusion of sedentary jobs from her analysis because McNish had not previously
performed sedentary work. Unlike Porter, Conway concluded that McNish was not totally disabled
and had instead only suffered a 75-percent loss of access to the labor market if he had been limited
to light/medium work activity prior to the injury and an 80- to 85-percent loss if he had been able
to perform heavy work at the time of his injury. Conway further concluded that if McNish was
performing a physically appropriate job for Menard, then he suffered a 60-percent loss of earning
capacity. However, if McNish’s job at Menard was not physically appropriate, Conway concluded
he sustained a 45-percent loss of earning capacity.
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Nebraska has adopted the odd-lot doctrine under which total disability may be found in the
case of workers who, while not altogether incapacitated for work, are so handicapped that they
will not be employed regularly in any well-known branch of the labor market. Mata v. Western
Valley Packing, 236 Neb. 584, 462 N.W.2d 869 (1990). The essence of the test is the probable
dependability with which claimant can sell his services in a competitive labor market, undistorted
by such factors as business booms, sympathy of a particular employer or friends, temporary good
luck, or the superhuman efforts of the claimant to rise above his crippling handicaps. Lovelace v.
City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012).
The compensation court determined that Porter’s analysis was more persuasive as it more
fully considered the limitations placed by McNish’s treating physicians and his own self-described
limitations. Porter concluded that McNish was totally disabled under the odd-lot doctrine. While
her report excluded McNish’s computer-related degrees because they were obtained nearly 15
years ago and unaccompanied by related work experience, Porter also determined that virtually all
computer-related jobs required more than a sedentary level of physical demand, thereby still
rendering them unavailable to McNish. McNish’s sedentary work restriction shrunk his pool of
eligible jobs by 95 percent, which resulted in him being considered totally disabled under the
odd-lot doctrine. With access to only 11 jobs in his geographical area, the compensation court’s
determination that McNish was totally disabled based on the odd-lot doctrine was not error, and
thus, we affirm.
APPORTIONMENT
Menard next argues that McNish’s present disability should be apportioned on account of
his prior injury, which occurred in or about 2001 and for which he was compensated at that time.
McNish argues in reply that apportionment is not appropriate in any instances of permanent total
disability. We recently analyzed the concept of apportionment and determined that, absent a statute
requiring apportionment, the doctrine of apportionment is not applicable in our state to cases where
successive injuries occur to different parts of the body when the former injury was a compensated
injury to the body as a whole and the subsequent injury is also a compensable injury to the body
as a whole. Picard v. P & C Group 1, 27 Neb. Ct. App. 646, ___ N.W.2d ___ (2019). Accordingly,
apportionment is not applicable in the present case, and we therefore affirm.
AVERAGE WEEKLY WAGE
Finally, Menard argues that the compensation court erred in calculating McNish’s average
weekly wage because it included sales commissions and “spif” bonuses, both of which were of
fluctuating and uncertain value and frequency. McNish argues in reply that excluding his
commissions and bonuses would distort his average weekly wage, particularly because the
commissions and bonuses were set forth in his employment agreement and regularly paid prior to
his injury. We find no error in the compensation court’s inclusion of McNish’s bonuses and
commissions in its calculation of his average weekly wage, and we therefore affirm.
In workers’ compensation cases, the amount of benefits awarded to a claimant is dependent
upon the court’s calculation of the claimant’s average weekly wage. Mueller v. Lincoln Public
Schools, 282 Neb. 25, 803 N.W.2d 408 (2011). The goal of any average income test is to produce
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an honest approximation of the claimant’s probable future earning capacity. Powell v. Estate
Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008).
For employees who are paid by the hour, the average weekly wage is determined pursuant
to Neb. Rev. Stat. §§ 48-121 and 48-126 (Reissue 2010). Section 48-126 provides in relevant part
that the term “wages”
shall be construed to mean the money rate at which the service rendered is recompensed
under the contract of hiring in force at the time of the accident. It shall not include gratuities
received from the employer or others, nor shall it include board, lodging, or similar
advantages received from the employer, unless the money value of such advantages shall
have been fixed by the parties at the time of hiring. . . . In continuous employments, if
immediately prior to the accident the rate of wages was fixed by the day or hour or by the
output of the employee, his or her weekly wages shall be taken to be his or her average
weekly income for the period of time ordinarily constituting his or her week’s work, and
using as the basis of calculation his or her earnings during as much of the preceding six
months as he or she worked for the same employer.
(Emphasis supplied.) Sales commissions based on output and earned on a regular schedule are
wages for purposes of § 48-126. See Clifford v. Harchelroad Chevrolet, 229 Neb. 78, 425 N.W.2d
331 (1988). In determining an employee’s average weekly wage, the court in Clifford considered
the past 6 months’ sales commissions he earned because his commissions were paid as a fixed
percentage of his sales even though the value of the commissions varied from month to month.
In the present case, the compensation court determined that McNish’s average weekly
wage was $853.46, which was based on the sum of his straight time, overtime, “spif” sales bonuses,
and commercial sales commissions. Menard confines its argument on appeal to the “spif” bonuses
and commercial sales commissions. The court found that McNish earned “spif” sales bonuses of
$110.11 and $209 and total commercial sales commissions of $5,134.02 during the 26 weeks prior
to his injury on February 3, 2014.
The employment agreement between McNish and Menard sets forth the terms of his
compensation, including bonuses and commissions. The agreement states that he “will be paid a
spif for selling any special order products that qualify.” This “spif” bonus, then, is fixed by
McNish’s output, or sale, of certain qualifying products. The agreement also provides that McNish
“may” be paid a “discretionary commission” of 4 percent of the gross margin dollars generated
from his sales. Although the agreement indicates that the payment of commissions is not
necessarily mandatory, McNish testified that the commissions he earned were always paid and
never withheld. McNish’s bonuses and commissions were based on output and earned on a regular
basis. Accordingly, we find no error by the compensation court in including McNish’s “spif” sales
bonuses or commercial sales commissions in calculating his average weekly wage and, therefore,
affirm.
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CONCLUSION
Based on the foregoing, we affirm the compensation court’s award of benefits to McNish
in its entirety.
AFFIRMED.
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