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.
___. 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
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.
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.
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.
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
Trial: Evidence. Where reasonable minds
could draw different conclusions from the facts presented,
such presents a triable issue of material fact.
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
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
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
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.
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.
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.
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.
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.
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.
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
later filed an amended report. That report indicated that
based on Wynne's FCE and Scott's opinion, the sitting