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Wynne v. Menard, Inc.

Supreme Court of Nebraska

April 20, 2018

Machelle Wynne, appellant,
Menard, Inc., and Praetorian Insurance Company, its workers' compensation insurance carrier, apepllees.

         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. ___: ___. On appellate review, the factual findings made by the trial judge of the Workers' Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

         3. Pretrial Procedure: Proof: Appeal and Error. Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion. The party asserting error in a discovery ruling bears the burden of showing that the ruling was an abuse of discretion.

         4. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         5. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that it is entitled to judgment as a matter of law. If the movant meets this burden, then the nonmovant must show the existence of a material issue of fact that prevents judgment as a matter of law.

          [299 Neb. 711] 6. Summary Judgment: Evidence. When the parties' evidence would support reasonable, contrary inferences on the issue for which a movant seeks summary judgment, it is an inappropriate remedy.

         7. Trial: Evidence. Where reasonable minds could draw different conclusions from the facts presented, such presents a triable issue of material fact.

         8. Summary Judgment. At the summary judgment stage, the trial court determines whether the parties are disputing a material issue of fact. It does not resolve the factual issues.

         9. Summary Judgment: Trial. Summary judgment is an extreme remedy and should not be used to deprive a litigant of a formal trial if there is a genuine issue of material fact.

          Appeal from the Workers' Compensation Court: Thomas E. Stine, Judge. Reversed and remanded for further proceedings.

          Michael J. Javoronok, of Michael J. Javoronok Law Firm, for appellant.

          Todd R. McWha, Terrance O. Waite, and Christopher A. Sievers, of Waite, McWha & Heng, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and Luther and O'Gorman, District Judges.

          HEAVICAN, C.J.


         Machelle Wynne suffered knee and shoulder injuries in two separate incidents that arose out of her employment with Menard, Inc. The Nebraska Workers' Compensation Court sustained Wynne's motion for summary judgment insofar as it awarded her benefits for two scheduled injuries, but denied her claim that she was permanently and totally disabled. Wynne appeals. We reverse, and remand for further proceedings.


         Wynne was employed by Menard and worked at a Menard store in Scottsbluff, Nebraska. She was injured on the job on two different occasions-a knee injury suffered on September 25, 2013, and a shoulder injury suffered on July 8, 2014.

          [299 Neb. 712] On August 7, 2015, the Workers' Compensation Court found that Wynne had been injured in the scope and course of her employment, that she had not reached maximum medical improvement, and that she was entitled to further medical treatment and temporary total disability payments until maximum medical improvement was reached.

         Wynne later had rotator cuff surgery. The surgeon found that Wynne had reached maximum medical improvement as of October 24, 2016. A functional capacity evaluation (FCE) was conducted by Theresa Olson on December 1. The results of the FCE noted that Wynne should reach overhead and forward only occasionally; should not squat, crawl, or walk on uneven surfaces; and should engage in static standing, walking, kneeling, balancing, and climbing ladders or stairs infrequently. The FCE included no restrictions on sitting.

         On February 8, 2017, Dr. Michelle Cheloha, Wynne's family practice physician, notified Wynne's attorney via a form provided by counsel that Wynne was restricted from sitting for more than 10 minutes at one time. The court-appointed vocational expert, Ted Stricklett, opined that if Wynne were restricted from sitting for more than 10 minutes, she would be considered permanently and totally disabled.

         Also in the record is a report from Dr. Douglas Scott, a specialist in occupational medicine. Scott opined that Wynne could work within her restrictions for 8 hours a day, 5 days a week. Scott further opined that Wynne had no spinal injury affecting her ability to sit; thus, the sitting restriction imposed by Cheloha was not supported by the medical evidence or by a reasonable or factual assessment of Wynne's capability.

         Stricklett later filed an amended report. That report indicated that based on Wynne's FCE and Scott's opinion, the sitting ...

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