Contreras v. T.O. Haas

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276 22 NEBRASKA APPELLATE REPORTS
Ismael Contreras, appellee, v.
T.O. Haas, LLC, appellant.
___ N.W.2d ___
Filed August 19, 2014. No. A-13-673.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court, an appellate court reviews the
trial judge’s findings of fact, which will not be disturbed unless clearly wrong.
3. ____: ____. Regarding questions of law, an appellate court in workers’ compen­
sation cases is obligated to make its own decisions.
4. Workers’ Compensation: Rules of Evidence. As a general rule, the Nebraska
Workers’ Compensation Court is not bound by the usual common-law or statutory
rules of evidence.
5. Workers’ Compensation: Rules of Evidence: Legislature: Due Process.
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.
6. Workers’ Compensation: Expert Witnesses. In a workers’ compensation case,
an expert witness must qualify as an expert and the testimony must assist the trier
of fact to understand the evidence or determine a fact in issue.
7. ____: ____. Expert testimony in a workers’ compensation case must be based on
a reasonable degree of medical certainty or a reasonable probability.
8. ____: ____. Although expert medical testimony in workers’ compensation cases
must be based on a “reasonable degree of medical certainty” or “reasonable prob­
ability,” the testimony need not be couched in those exact, magic words.
9. Workers’ Compensation: Proof. Under the Nebraska Workers’ Compensation
Act, a claimant is entitled to an award for a work-related injury and disability if
the claimant shows, by a preponderance of the evidence, that he or she sustained
an injury and disability proximately caused by an accident which arose out of and
in the course of the claimant’s employment.
10. ____: ____. To recover workers’ compensation benefits, an injured worker is
required to prove by competent medical testimony a causal connection between
the alleged injury, the employment, and the disability.
11. Workers’ Compensation: Expert Witnesses. The Workers’ Compensation Court
is entitled to accept the opinion of one expert over another.
12. Workers’ Compensation. As the trier of fact, the Workers’ Compensation Court
is the sole judge of the credibility of the witnesses and the weight to be given
their testimony.
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Appeal from the Workers’ Compensation Court: J. Michael
Fitzgerald, Judge. Affirmed.
John W. Iliff, of Gross & Welch, P.C., L.L.O., for appellant.
William V. Steffens and Jeremiah J. Luebbe, of Steffens Law
Office, P.C., for appellee.
Irwin and Bishop, Judges.
P er Curiam.
I. INTRODUCTION
On appeal, T.O. Haas, LLC, asserts that the Workers’
Compensation Court erred in admitting certain exhibits into
evidence and in finding that Ismael Contreras is permanently
and totally disabled. We affirm.
II. FACTUAL BACKGROUND
In 2006, Contreras was hired by T.O. Haas as a certified
tire technician. As a part of Contreras’ job, he was required to
remove old tires from vehicles, repair tires, and place either
new or repaired tires back on the vehicles. On August 23,
2010, Contreras was working at T.O. Haas and was trying
to change a tire on a “skid steer.” In working with the tire,
Contreras turned to his left to lower the tire to the ground when
he felt “a sharp pain go through [his] back.” Contreras reported
the injury to his supervisor.
Contreras attempted to return to work the day after his
injury, but was unable to work for even an hour. Contreras
has not returned to work at T.O. Haas since the day after he
incurred the injury to his back. In fact, other than working
part time delivering newspapers for approximately 2 months
in 2012, Contreras has not worked anywhere since August
24, 2010.
In September 2010, Contreras made an appointment with
his family physician, Dr. Jason Citta, because the pain in
his back had not improved since August 23. Dr. Citta pre­
scribed Contreras pain medication, ordered an MRI, and
referred him to a physical therapist. During the months of
September and October, however, Contreras continued to see
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Dr. Citta and continued to complain about severe back pain.
Dr. Citta referred Contreras to Dr. Burt McKeag for further
pain management.
On October 12, 2010, Contreras saw Dr. McKeag. After Dr.
McKeag’s examination, he noted the following in his report:
[Contreras] is involved in litigation with workman’s com­
pensation. His story and injury are very reasonable, but he
does tend to have an exaggerated presentation. I reviewed
his MRI and he does have significant NF stenosis at
L5/S1 on the left consistent with his symptoms. I feel
that it is reasonable to proceed with a [lumbar epidural
steroid injection].
Dr. McKeag administered the injection to Contreras on
November 16. Contreras reported that he did not receive any
significant relief from this injection. As a result of Contreras’
reports of continued back pain, Dr. Citta referred him to a neu­
rosurgeon, Dr. Omar Jimenez.
Dr. Jimenez diagnosed Contreras as suffering from “degen­
erative disc disease at L4-5 and also at L5-S1 with a large
herniated disc on the right at L5-S1, which also extends cen­
trally slightly to the left.” He recommended that Contreras
undergo back surgery. In March 2011, Contreras had back
surgery. After the surgery, Contreras reported that he was
“having significant right SI joint discomfort.” Dr. Jimenez
prescribed pain medication, including another injection. In
addition, he advised Contreras to continue to attend physi­
cal therapy.
In June 2011, approximately 3 months after his surgery,
Contreras reported that he was experiencing “excruciating pain
lateral to [his] incision up in the hip area.” Contreras stated
that the pain was “disabling.” Dr. Jimenez indicated he was
“baffled by his symptoms and would like to proceed with
[an] MRI . . . . It is likely that he may be suffering from sac­
roiliac joint pain, although he states this is better in addition
to his trochanter pain.” Ultimately, Dr. Jimenez prescribed
Contreras additional pain medication and ordered him to be
more “aggressive in his recuperation.” Dr. Jimenez believed
that physical therapy would help Contreras heal. However, Dr.
Jimenez also noted that the MRI revealed “evidence of facet
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hypertrophy bilaterally at 4-5 and 5-1 . . . which may be an
issue that may need to be addressed in the future.”
Contreras returned for a followup visit with Dr. Jimenez in
August 2011, where he continued to report severe back pain.
At this appointment, Dr. Jimenez recommended that Contreras
undergo a spinal fusion surgery. After receiving a second opin­
ion about the spinal fusion surgery, Contreras elected not to
undergo the procedure.
After his August 2011 appointment with Dr. Jimenez,
Contreras returned to the care of Drs. Citta and McKeag. The
doctors continued to prescribe pain medication and recom­
mended physical therapy. Contreras continued to report ongo­
ing back pain.
III. PROCEDURAL BACKGROUND
On December 22, 2010, Contreras filed a petition in the
Nebraska Workers’ Compensation Court alleging that he had
been injured in the scope and course of his employment with
T.O. Haas. Contreras requested that, as a result of his injury,
he be awarded temporary and permanent disability benefits. He
also requested that T.O. Haas be ordered to pay for his medi­
cal bills.
On March 1, 2013, a trial was held. At the trial, T.O. Haas
stipulated that Contreras injured his back on August 23, 2010,
while at work. It also stipulated that the injury to Contreras’
back required surgery in March 2011. However, T.O. Haas spe­
cifically disputed the extent of Contreras’ work restrictions and
loss of earning capacity as a result of his back injury.
Contreras testified at trial regarding the accident and his
resulting injury. During his testimony, Contreras indicated that
he continues to take pain medication for his back on a daily
basis. In fact, he testified that he has taken some type of pain
medication for his back continuously since August 23, 2010.
He also testified that despite this pain medication, he contin­
ues to suffer from back pain. He explained that during his
testimony, his back was “throbbing and ha[d] a burning sensa­
tion.” He rated his pain at “a 7 to an 8” on a scale of 1 to 10.
Contreras also testified that he has previously been convicted
of a felony.
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In addition to Contreras’ testimony, both parties offered
numerous exhibits, including Contreras’ medical records from
various doctors. Although we have reviewed this voluminous
medical evidence in its entirety, we do not detail such evi­
dence here. Rather, we simply note that there was conflicting
evidence presented concerning the degree of Contreras’ impair­
ment, the cause of Contreras’ ongoing back pain after his back
surgery, and Contreras’ ability to return to any type of employ­
ment. We will set forth the specific facts as presented at the
trial as necessary in our analysis below.
After the parties’ presentation of evidence, the trial court
entered an extremely detailed, 11-page order in which it evalu­
ated all of the evidence presented. Ultimately, the court found
that Contreras reached maximum medical improvement in
September 2011, after he had decided not to undergo the spinal
fusion surgery. The court found that prior to September 2011,
Contreras was entitled to temporary total disability benefits,
and that after September 2011, he continued to be totally dis­
abled and, as such, was entitled to permanent total disability
benefits. The court also awarded Contreras compensation for
past and future medical expenses.
T.O. Haas appeals from the trial court’s order.
IV. ASSIGNMENTS OF ERROR
On appeal, T.O. Haas assigns the following as errors: (1) The
trial court erred by admitting certain exhibits into evidence, (2)
the trial court was clearly wrong in awarding permanent total
disability when there was insufficient competent and quali­
fied medical evidence to prove a causal connection between
Contreras’ injury (and injury-related surgery) and postsurgery
restrictions, and (3) there was insufficient competent evidence
to support an award of permanent total disability.
V. ANALYSIS
1. Standard of R eview
[1-3] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order, or
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award was procured by fraud; (3) there is not sufficient compe­
tent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compen­
sation court do not support the order or award. Rader v. Speer
Auto, 287 Neb. 116, 841 N.W.2d 383 (2013). In determining
whether to affirm, modify, reverse, or set aside a judgment of
the Workers’ Compensation Court, an appellate court reviews
the trial judge’s findings of fact, which will not be disturbed
unless clearly wrong. Id. Regarding questions of law, an appel­
late court in workers’ compensation cases is obligated to make
its own decisions. Id.
2. Admission of Exhibits
22 and 23
On appeal, T.O. Haas alleges that the trial court erred by
admitting into evidence portions of exhibit 22, which consists
of records from Contreras’ physical therapy and a copy of a
functional capacity evaluation performed on Contreras, and
portions of exhibit 23, which consists of Contreras’ medical
records from Dr. McKeag. We will address the admissibility
of each exhibit; however, first we recount the relevant law that
overlays our review of the trial court’s determinations regard­
ing the admission of evidence.
[4,5] As a general rule, the Nebraska Workers’ Compensation
Court is not bound by the usual common-law or statutory rules
of evidence. Neb. Rev. Stat. §§ 48-168(1) (Reissue 2010)
and 27-1101(4)(d) (Reissue 2008); Veatch v. American Tool,
267 Neb. 711, 676 N.W.2d 730 (2004). 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. § 48-168; Veatch v. American
Tool, supra.
[6,7] The Nebraska Supreme Court has previously clari­
fied the rules regarding the admissibility of expert testimony
in workers’ compensation cases. Specifically, the court has
stated that in a workers’ compensation case, an expert witness
must qualify as an expert and the testimony must assist the
trier of fact to understand the evidence or determine a fact
in issue. Veatch v. American Tool, supra. The witness must
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have a factual basis for the opinion, and the testimony must
be ­relevant. Id. Expert testimony in a workers’ compensa­
tion case must be based on a reasonable degree of medical
certainty or a reasonable probability. Id. An expert opinion in
a workers’ compensation case based on a mere possibility is
insufficient, but the standard also does not require absolute
certainty. See Paulsen v. State, 249 Neb. 112, 541 N.W.2d
636 (1996).
With these rules in mind, we now address T.O. Haas’ asser­
tions regarding the trial court’s admission of portions of exhib­
its 22 and 23.
(a) Exhibit 22
Exhibit 22 consists of Contreras’ records from physical ther­
apy, authored by Contreras’ physical therapist, Tyler Sexson.
In addition, pages 36 through 45 of the exhibit consist of
the results of a functional capacity evaluation performed on
Contreras. This evaluation was performed by Sexson. The last
three pages of the exhibit include Sexson’s responses to ques­
tions posed by Contreras’ counsel concerning the functional
capacity evaluation. Sexson’s answers indicate his professional
opinion that Contreras “provided an accurate p[or]trayal of
his current pain and limitations during the [functional capac­
ity evaluation].”
At trial, T.O. Haas objected on the basis of relevance
and foundation to the functional capacity evaluation and to
Sexson’s responses to counsel’s questions about that evalua­
tion. In response to T.O. Haas’ objection, Contreras asserted
that the entire exhibit, including the evaluation and Sexson’s
responses to the questions, was very relevant to its case: “So
it’s a critical piece of evidence for our case. And it’s certainly
very relevant. Why wouldn’t the individual who performed the
[functional capacity evaluation] in question, . . . Sex[s]on, be
able to tell us why he believes the results are accurate?” The
trial court overruled T.O. Haas’ objections and allowed the
exhibit into evidence.
On appeal, T.O. Haas asserts that the trial court erred in
admitting pages 36 through 48 of exhibit 22. Specifically, it
argues that the results of the functional capacity evaluation
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are not valid because there was some indication of symptom
magnification. In addition, it argues that Sexson erroneously
indicated that his opinion about the validity of the results of
the evaluation was given to a medical degree of certainty, even
though he is not a medical doctor. T.O. Haas’ assertions have
no merit.
The results of Contreras’ functional capacity evaluation
demonstrate Contreras’ level of impairment and his ability
to perform a variety of movements and tasks in light of
his injury. This information is clearly relevant to the trial
court’s determination about Contreras’ disability and his loss
of earning capacity. And, although there is some indication that
Contreras was exaggerating his symptoms during the evalua­
tion, this does not make the results inadmissible. Rather, this
is an issue that T.O. Haas could have, and did, raise at trial.
In fact, T.O. Haas offered the report of a different doctor who
had evaluated Contreras and who had a very different opinion
about Contreras’ level of impairment and about the validity of
the functional capacity evaluation.
Additionally, although we recognize that in Sexson’s
responses to counsel’s questions he erroneously indicated that
he “answer[ed] the . . . questions to a ‘medical degree of cer­
tainty,’” even though he is not a licensed physician, we do
not find that this misstatement equates to all of his answers’
being inadmissible. Sexson is a physical therapist who has
a great deal of experience in performing functional capac­
ity evaluations. In addition, he has a great deal of experience
with Contreras and with Contreras’ injury and abilities because
he was Contreras’ physical therapist off and on for a 2-year
period. Sexson is qualified to offer an opinion about whether
Contreras was exaggerating his symptoms during the func­
tional capacity evaluation, and such opinion is relevant to the
trial court’s determination about Contreras’ disability and loss
of earning capacity.
T.O. Haas’ assertions regarding the admissibility of pages
36 through 48 of exhibit 22 are without merit. The exhibit,
in its entirety, was properly admitted and considered by the
trial court.
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(b) Exhibit 23
Exhibit 23 consists of Contreras’ medical records from
Dr. McKeag. Such records include Dr. McKeag’s notes from
Contreras’ numerous visits with him from October 2010
through October 2012. Also included in exhibit 23, on page
17, is a copy of the page from Contreras’ functional capac­
ity evaluation with Sexson, which includes Sexson’s sum­
mary of Contreras’ physical restrictions and recommendation
that Contreras is “unable to return to prior job duties fully
within the lightest Sedentary category of Physical Demand.”
At the bottom of this page is a handwritten note signed by
Dr. McKeag. That note states: “I agree with the above recom­
mendations.” Additionally, on page 22 of exhibit 23, there is a
letter from Contreras’ counsel to Dr. McKeag which asks Dr.
McKeag to further explain the handwritten note on the func­
tional capacity evaluation. Dr. McKeag responded to this letter
by indicating that he did, in fact, “sign off” and agree with the
recommendations of the functional capacity evaluation. Dr.
McKeag specifically noted, “I do not personally do [functional
capacity evaluations]. I do not consider myself to be an expert
regarding [functional capacity evaluations]. I read the [func­
tional capacity evaluation] and I basically agree with it, but I
don’t know what that is worth.”
At trial, T.O. Haas objected on the basis of relevancy and
foundation to page 17 of exhibit 23, where Dr. McKeag indi­
cated his agreement with the recommendations of the func­
tional capacity evaluation. The trial court overruled the objec­
tion, stating, “And there’s some doc[tors] that sign off on
[functional capacity evaluations], even though the doc[tors]
don’t do them. They — Overruled. This is — This sounds rea­
sonable to me. [Doctors] can also receive [functional capacity
evaluations] and make some contradictory statements or hedge
their bets a little bit. Okay.” T.O. Haas did not object to page
22 of exhibit 23, which consisted of Dr. McKeag’s further
explanation of his agreement with the recommendations of the
functional capacity evaluation.
On appeal, T.O. Haas argues that the trial court erred in
overruling its objection to page 17 of exhibit 23. Specifically,
T.O. Haas alleges that this page of the exhibit was not
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admissible because Dr. McKeag admitted that he is not an
expert regarding functional capacity evaluations, because Dr.
McKeag did not indicate that his agreement with the recom­
mendations in the functional capacity evaluation was made
within a reasonable degree of medical probability, and because
Dr. McKeag’s statement does not assist the trial court in any
way. T.O. Haas’ assertions have no merit.
First, we note that at trial, T.O. Haas did not object to page
22 of exhibit 23, which consisted of Dr. McKeag’s further
explanation of his agreement with the recommendations of the
functional capacity evaluation. This page of the exhibit reiter­
ates that Dr. McKeag “sign[ed] off” on the recommendations
of the functional capacity evaluation and that he had written,
“I agree with the above recommendations.” As such, page 22
contains the same information as page 17. And, page 22 was
admitted into evidence without objection. Accordingly, even if
the court erred in admitting page 17, such error would clearly
be harmless as the same information was included in another,
uncontested portion of the same exhibit.
Moreover, we cannot say that the trial court erred in admit­
ting page 17 of exhibit 23 into evidence. Although Dr. McKeag
indicated that he is not an expert with regard to functional
capacity evaluations, presumably because he does not conduct
this type of testing on his patients, he is clearly qualified to
provide his opinion with regard to Contreras’ physical health
and his ability to perform certain tasks. Dr. McKeag, who
specializes in pain management, saw Contreras on at least 10
occasions between October 2010 and October 2012. At each
of these visits, Dr. McKeag evaluated Contreras’ level of back
pain, and often, he would evaluate Contreras’ ability to perform
certain movements in light of the pain.
Given Dr. McKeag’s knowledge of Contreras’ physical
health, his general agreement with the results and recommen­
dations of the functional capacity evaluation certainly provide
relevant information to the trial court. Dr. McKeag was given
two separate opportunities to contradict the results of the
evaluation or, at the very least, to decline to agree with those
recommendations. Dr. McKeag did not indicate any disagree­
ment with the recommendations other than to note his lack of
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expertise with functional capacity evaluations in general. Such
information is associated with the weight of Dr. McKeag’s
opinion, rather than with its admissibility.
[8] Finally, we note that although expert medical testimony
in workers’ compensation cases must be based on a “reason­
able degree of medical certainty” or “reasonable probability,”
the testimony need not be couched in those exact, magic
words. See Edmonds v. IBP, inc., 239 Neb. 899, 479 N.W.2d
754 (1992). As such, Dr. McKeag’s medical opinion is admis­
sible even though he did not explicitly state that it was based
on a reasonable degree of medical certainty or reasonable
probability. Dr. McKeag’s agreement with the recommenda­
tions of the functional capacity evaluation must be read in
conjunction with his medical expertise and with his experience
as Contreras’ physician. Although Dr. McKeag noted that he is
not an expert in functional capacity evaluations, nowhere in his
opinion does he provide any indication that his medical opin­
ion was not based on a reasonable degree of medical certainty
or reasonable probability.
T.O. Haas’ assertions regarding the admissibility of page 17
of exhibit 23 are without merit. The exhibit, in its entirety, was
properly admitted and considered by the trial court.
3. Finding of P ermanent
and Total Disability
In the trial court’s order, it concluded that Contreras was
permanently and totally disabled as a result of the injury he
suffered while at work on August 23, 2010. In coming to this
conclusion, the court found that the evidence presented at trial
demonstrated that Contreras suffered a low-back injury which
required surgery and which continues to cause him pain. The
court went on to find that as a result of his injury, Contreras
is limited in his ability to perform certain work functions, and
that “[a]t best, [he] would be able to perform some light work
jobs.” The court also found that there are no light work jobs
available to Contreras due to the combination of his physical
restrictions, his lack of education, and his felony conviction.
The trial court awarded Contreras permanent total disabil­
ity benefits.
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On appeal, T.O. Haas alleges that the trial court erred in
two ways when it concluded that Contreras was permanently
and totally disabled. First, T.O. Haas alleges that there was not
competent medical evidence to demonstrate a causal connec­
tion between Contreras’ back condition after the March 2011
surgery and the August 2010 injury or between his back condi­
tion and his physical restrictions as reported in the functional
capacity evaluation. Second, T.O. Haas alleges that the only
competent medical evidence presented regarding Contreras’
physical limitations after surgery demonstrated that Contreras
was capable of working and had suffered a loss of earning
capacity of 25 percent.
(a) Causal Connection Between
Postsurgery Restrictions
and Work Injury
[9,10] Under the Nebraska Workers’ Compensation Act,
a claimant is entitled to an award for a work-related injury
and disability if the claimant shows, by a preponderance of
the evidence, that he or she sustained an injury and disability
proximately caused by an accident which arose out of and in
the course of the claimant’s employment. Schlup v. Auburn
Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992). Moreover,
to recover workers’ compensation benefits, an injured worker
is required to prove by competent medical testimony a causal
connection between the alleged injury, the employment, and
the disability. Owen v. American Hydraulics, 254 Neb. 685,
578 N.W.2d 57 (1998).
When testing the sufficiency of the evidence to support find­
ings of facts made by the Workers’ Compensation Court, the
evidence must be considered in the light most favorable to the
successful party and the successful party will have the benefit
of every inference reasonably deducible from the evidence.
Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d
354 (2007).
At trial, T.O. Haas stipulated that Contreras injured his
back on August 23, 2010, while at work. It also stipulated
that Contreras’ back injury required surgery in March 2011.
As such, at trial and on appeal, T.O. Haas disputes only
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the extent of Contreras’ condition after the back surgery.
T.O. Haas challenges the extent of Contreras’ physical restric­
tions postsurgery and the resulting loss of earning capacity. To
state T.O. Haas’ argument more simply, it asserts that there is
no medical evidence which ties Contreras’ reports of ongoing
back pain after surgery to the injury he suffered on August 23,
2010, or to his physical restrictions as reported in the func­
tional capacity evaluation.
When we consider the evidence presented at trial in the
light most favorable to Contreras, we conclude there is suf­
ficient evidence to demonstrate that Contreras’ condition after
the March 2011 surgery was causally related to the injury he
sustained on August 23, 2010, and that this condition caused
physical restrictions, as reflected in the functional capac­
ity evaluation.
On July 29, 2011, approximately 4 months after Contreras’
back surgery, Dr. Jimenez reported that Contreras was suf­
fering from a right L5-S1 herniated disk and that Contreras’
“present back condition” was caused by the workplace acci­
dent that had occurred in August 2010. Dr. Jimenez also
reported that Contreras had not yet reached maximum medi­
cal improvement for his injury. A few days after Dr. Jimenez
reported these facts, he met with Contreras and recommended
he “undergo a more aggressive approach” for his back condi­
tion. Dr. Jimenez recommended a spinal fusion surgery. This
evidence demonstrates that in the months after the March
2011 back surgery, Contreras continued to suffer from a seri­
ous back condition that was a direct result of his August 2010
workplace injury.
In addition to the reports of Dr. Jimenez, the medical
records of Dr. McKeag also indicate that after the back surgery,
Contreras continued to suffer from severe back pain. Physical
examinations of Contreras revealed some indication that his
back condition and resulting back pain affected his ability to
perform certain movements. And, at trial, Contreras testified
that the March 2011 back surgery did not resolve his back pain.
Contreras stated that after the surgery, he felt relief for only a
“brief time.” Contreras also testified that he has been on some
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type of pain medication continuously since the August 2010
accident and that even with this medication, he continues to
feel pain.
All of this evidence, taken together, is sufficient to sup­
port the trial court’s finding that there was a causal connec­
tion between Contreras’ condition after the back surgery and
his August 2010 workplace accident. In its brief on appeal,
T.O. Haas points to evidence in the record which demon­
strates that Contreras’ postsurgery condition was not a result
of his workplace accident and that, in fact, Contreras was
exaggerating his continuing pain and inability to perform
certain movements. Essentially, T.O. Haas’ argument is about
the credibility of the various doctors who examined and
treated Contreras.
[11,12] We recognize that the trial court was faced with
conflicting opinions regarding Contreras’ postsurgery condition
and the cause of that condition. However, we also recognize
that the Workers’ Compensation Court is entitled to accept the
opinion of one expert over another. See Zessin v. Shanahan
Mechanical & Elec., 251 Neb. 651, 558 N.W.2d 564 (1997).
As the trier of fact, the Workers’ Compensation Court is the
sole judge of the credibility of the witnesses and the weight
to be given their testimony. Id. When the record in a workers’
compensation case presents conflicting medical testimony, an
appellate court will not substitute its judgment for that of the
compensation court. Lowe v. Drivers Mgmt., Inc., 274 Neb.
732, 743 N.W.2d 82 (2007).
The trial court accepted the opinion of Dr. Jimenez and
relied on the medical records authored by Dr. McKeag when
it found that Contreras “has had a low back injury which
required surgery and continues to have pain. [He] is limited
on his ability to perform work functions.” Upon our review of
the record, we conclude that there was sufficient evidence to
support the trial court’s findings that Contreras’ condition after
the March 2011 surgery was causally related to the injury he
sustained on August 23, 2010, and that this condition caused
physical restrictions, as reflected in the functional capac­
ity evaluation.
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290 22 NEBRASKA APPELLATE REPORTS
(b) Ability to Work
T.O. Haas also asserts that the trial court erred in awarding
permanent total disability, because such a finding is only war­
ranted when the injured party is unable to perform any work
which he has experience or capacity to perform, “or any other
kind of work which a person of his mentality an[d] attain­
ments could do.” Brief for appellant at 27-28 (citing Kleiva v.
Paradise Landscapes, 230 Neb. 234, 430 N.W.2d 550 (1988)).
T.O. Haas claims that the only competent evidence regarding
Contreras’ loss of earning capacity shows that Contreras is
capable of working at a medium level of work, and this results
in a loss of earning capacity of 20 to 25 percent, not total dis­
ability. However, this argument is contradicted by other evi­
dence in the record. For example, the functional capacity eval­
uation conducted by Sexson reveals that Contreras struggled
to perform many movements and had limited strength. Sexson
concluded that Contreras was
unable to function completely within the lightest Physical
Demand Category, as defined by the U.S. Dept. of Labor,
of occasional lifting 10 lbs., frequent lifting 5 lbs., and
constant lifting <5 lbs. He demonstrated deficiencies
from normal values in all tested strength and mobility
of upper and lower extremities, and trunk. These impair­
ments severely limited his ability to perform material and
non-material handling tasks. He was unable to complete a
majority of presented tasks due to lower back pain, lim­
iting his trunk and extremity mobility. All material and
non-material handling testing elicited pain at the mid to
lower back.
After the completion of the functional capacity evalua­
tion, Sexson opined that the evaluation accurately portrayed
Contreras’ abilities and that Contreras had performed the tests
with full participation. In addition, Dr. McKeag indicated
his agreement with the restrictions and recommendations of
the evaluation.
This evidence demonstrates that even after Contreras’
March 2010 surgery, he had considerable physical restrictions
as a result of the August 2010 workplace accident. T.O. Haas,
however, asserts that this evidence does not prove anything
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CONTRERAS v. T.O. HAAS 291
Cite as 22 Neb. Ct. App. 276
about Contreras’ physical restrictions, because the functional
capacity evaluation was invalid as a result of Contreras’ exag­
geration of symptoms and because Dr. McKeag’s agreement
with the evaluation should not be considered.
In making its arguments, T.O. Haas reiterates its previ­
ous assertions about why this evidence should have been
excluded altogether at trial. In our analysis above, we rejected
T.O. Haas’ arguments and found that both the results of the
functional capacity evaluation and Dr. McKeag’s agreement
with those results were properly admitted and considered by
the trial court. As such, T.O. Haas’ arguments about the valid­
ity of this evidence are without merit.
T.O. Haas also asserts that other medical evidence presented
at trial contradicted the findings of the functional capacity
evaluation and demonstrated that Contreras was, in fact, exag­
gerating his symptoms. However, as we stated above, as the
trier of fact, the Nebraska Workers’ Compensation Court is the
sole judge of the credibility of the witnesses and the weight
to be given their testimony, and when the record in a workers’
compensation case presents conflicting medical testimony, an
appellate court will not substitute its judgment for that of the
compensation court. See Lowe v. Drivers Mgmt., Inc., 274 Neb.
732, 743 N.W.2d 82 (2007); Zessin v. Shanahan Mechanical &
Elec., 251 Neb. 651, 558 N.W.2d 564 (1997).
Based upon the conflicting evidence in the record, the trial
court noted in its award: “[Contreras] may not be as limited
as set forth in the functional capacity evaluation but may also
be limited more than Dr. Gammel finds. At best, [Contreras]
would be able to perform some light work jobs.” The court
went on to conclude that there are no light work jobs available
to Contreras, due to the combination of his physical restric­
tions, his lack of education, and his felony conviction. The trial
court awarded Contreras permanent total disability benefits.
Although the trial court does not specifically refer to the odd-
lot doctrine, the rationale provided by the trial court is con­
sistent with that doctrine.
Under the odd-lot doctrine, “‘“[t]otal disability may
be found in the case of workers who, while not alto­
gether incapacitated for work, are so handicapped that
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292 22 NEBRASKA APPELLATE REPORTS
they will not be employed regularly in any well-known
branch of the labor market. 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 par­
ticular employer or friends, temporary good luck, or the
superhuman efforts of the claimant to rise above his crip­
pling handicaps.”’”
Lovelace v. City of Lincoln, 283 Neb. 12, 14, 809 N.W.2d 505,
507-08 (2012).
Whether Contreras is totally or permanently disabled is a
question of fact, and when testing the trial judge’s findings
of fact, we consider the evidence in the light most favorable
to the successful party. Although the trial court’s consider­
ation of Contreras’ felony conviction (along with his physical
impairments and lack of education) is not a consideration
found under this state’s appellate authority currently, we
find it unnecessary to determine whether such a consider­
ation results in error, because (1) no assignment of error
or argument was made on this basis and (2) we find there
is sufficient evidence in the record to support the Workers’
Compensation Court’s decision that the employee is totally
and permanently disabled based on its determination of the
employee’s physical limitiations combined with the evidence
as to his limited educational background. The combination of
those factors alone has been upheld by the Nebraska Supreme
Court as a basis for total disability. See Money v. Tyrrell
Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008) (evidence of
employee’s significant physical impairments after injury and
her limited cognitive abilities was sufficient to support trial
judge’s finding of permanent and total disability). We find
that to be the case here and affirm the trial court’s award of
permanent total disability.
VI. CONCLUSION
We find no merit to T.O. Haas’ assignments of error. The
trial court properly admitted into evidence and considered
exhibits 22 and 23. In addition, there was sufficient evi­
dence to support the trial court’s conclusion that Contreras is
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Cite as 22 Neb. Ct. App. 276
permanently and totally disabled. Accordingly, we affirm the
trial court’s order in its entirety.
Affirmed.
Inbody, Chief Judge, participating on briefs.