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Krause v. Five Star Quality Care, Inc.

Supreme Court of Nebraska

November 16, 2018

Danielle Krause and Laurie Hoyt, as coguardians and coconservators for llnda carlson, appellees,
v.
Five Star Quality Care, Inc., also known as Crestview Healthcare Center, and New Hampshire Insurance Company, its workers' compensation insurance carrier, appellants.

         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. ___: ___. In workers' compensation cases, an appellate court is obligated to make its own determinations regarding questions of law.

         4. Workers' Compensation: Words and Phrases. In Nebraska, a workers' compensation claimant may receive permanent or temporary benefits for either partial or total disability. "Temporary" and "permanent" refer to the duration of the disability, while "total" and "partial" refer to the degree or extent of the diminished employability or loss of earning capacity.

         5. Workers' Compensation. 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.

         [301 Neb. 613] 6. Workers' Compensation: Time. The date of maximum medical improvement for purposes of ending a workers' compensation claimant's temporary disability is the date upon which the claimant has attained maximum medical recovery from all of the injuries sustained in a particular compensable accident.

         7. Workers' Compensation. 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.

         8. ___. Whether a workers' compensation claimant has reached maximum medical improvement is a question of fact.

         9. Workers' Compensation: Judgments: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a workers' compensation case, an appellate court considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the appellate court gives the successful party the benefit of every inference reasonably deducible from the evidence.

         10. Workers' Compensation: Witnesses. The single judge of the Workers' Compensation Court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, even where the issue is not one of live testimonial credibility.

         11. Workers' Compensation: Time. Maximum medical improvement occurs only at the date a worker reaches maximum medical improvement for all injuries suffered as a result of the work-related injury, including psychological injuries.

         12. Workers' Compensation: Mental Health: Proof. In workers' compensation cases involving allegations of psychological injuries, the burden is on the claimant to prove by a preponderance of the evidence that his or her disability is the result of an accident arising out of the claimant's employment.

         13. Workers' Compensation. 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 employees' mentality and attainments could perform.

         14. ___. Whether a worker is totally and permanently disabled is a question of fact.

         15. Workers' Compensation: Evidence: Appeal and Error. When testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the [301 Neb. 614] successful party will have the benefit of every inference reasonably deducible from the evidence.

         16. Workers' Compensation: Proof. An injured employee seeking permanent disability benefits has the burden of proving that his or her injury caused permanent impairment and that this impairment resulted in a loss of earning capacity.

         17. Workers' Compensation: Expert Witnesses. While expert witness testimony may be necessary to establish the cause of a claimed injury, the Workers' Compensation Court does not need to depend on expert testimony to determine the degree of disability.

         18. Workers' Compensation: Testimony. In assessing a claimant's disability, physical restrictions and impairment ratings are important; but once a claimant establishes the cause of disability, the trial judge is not limited to this evidence and may also rely on the claimant's testimony to determine the extent of disability.

         19. Workers' Compensation: Words and Phrases. Disability, in contrast to impairment, is an economic inquiry.

         20. ___: ___. Total disability does not mean a state of absolute helplessness. Rather, it means that because of an injury, (1) a worker cannot earn wages in the same or a similar kind of work for which he or she was trained or was accustomed to performing or (2) the worker cannot earn wages for any other kind of work which a person of his or her mentality and attainments could do.

         21. Workers' Compensation. A worker's earning power after a physical injury is often constricted by mental capacity and education, and it is a matter of common observation that a worker whose sole stock in trade has been the capacity to perform physical movements, and whose ability to make those movements has been impaired by injury, is under a severe disadvantage in acquiring a dependable new means of livelihood.

         22. Workers' Compensation: Evidence: Appeal and Error. If the record contains evidence to substantiate the factual conclusions reached by the trial judge in workers' compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court.

         23. Workers' Compensation. Whether an employee who has a compensable permanent total disability can, consistent with the Nebraska Workers' Compensation Act, be deprived of ongoing total disability benefits because of a subsequent noncompensable injury that independently causes permanent disability presents a question of law.

         24. ___. The Nebraska Workers' Compensation Act should be construed liberally to carry out its spirit and beneficent purposes.

         25 ___. Where it is shown that a worker has a condition attributable to his or her employment that alone would totally disable him or her, it is [301 Neb. 615] immaterial for the purposes of the workers' compensation statutes that he or she may suffer from other independent and concurrent ailments which would by themselves be sufficient to disable him or her.

          Appeal from the Workers' Compensation Court: John R. Hoffert, Judge. Affirmed.

          Patrick J. Mack, of Hennessy & Roach, P.C., for appellants.

          Daniel A. Fix, of Fix Law Office, PC, L.L.O., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          STACY, J.

         Linda Carlson was injured during the course and scope of her employment and filed a petition in Workers' Compensation Court seeking temporary and permanent disability benefits. Approximately 3 weeks after the petition was filed, Carlson suffered a catastrophic stroke which left her largely incapacitated. The stroke was unrelated to the work injury or treatment. The compensation court found Carlson had reached maximum medical improvement prior to her stroke and awarded permanent total disability benefits. The employer and its workers' compensation insurance carrier appeal, challenging the date of maximum medical improvement and the award of permanent total disability. The employer also argues that after Carlson's stroke, she was no longer entitled to permanent total disability benefits. We affirm.

         I. FACTS

         1. Background The parties stipulated to many of the relevant facts. Carlson was injured on February 17, 2013, during the course and scope of her employment with Five Star Quality Care, Inc., also known as Crestview Healthcare Center. Carlson was working as a housekeeper when she slipped and fell, fracturing her right femur.

         [301 Neb. 616] Carlson filed a petition in the compensation court in September 2015. On October 14, 2015, she suffered a catastrophic stroke that was wholly unrelated to the work-related injury and its subsequent treatment. The compensation court granted the parties'joint motion to substitute Carlson's coguard-ians and coconservators as plaintiffs.

         2. Trial Evidence Trial was held on November 7, 2017. Carlson appeared, but did not testify, because her stroke left her unable to communicate verbally. The only witness to testify was one of Carlson's coconservators, who had known Carlson for many years. Medical evidence was submitted, and the parties offered a comprehensive joint stipulation addressing most of the relevant facts concerning Carlson's work accident and subsequent treatment.

         (a) Work Injury and Treatment

         The evidence showed that the day after Carlson's fall, three pins were surgically inserted in her hip. Carlson underwent subsequent physical therapy and treatment and, in April 2013, was authorized to return to work in a "[s]edentary/[l]ight" capacity. Carlson continued to struggle with significant pain, and on June 14, Dr. Matthew Reckmeyer recommended a total hip arthroplasty and opined Carlson could not return to work in any capacity. Reckmeyer performed the hip arthroplasty on June 25. Carlson did not return to work after June 14, and she continued to report significant pain and limitations up to the date of her stroke. She last sought treatment for her work injury on September 15, 2015. Five Star Quality Care and New Hampshire Insurance Company, Five Star's workers' compensation insurance carrier (collectively Five Star), have paid all of Carlson's medical bills related to the work accident and injury and paid temporary partial disability benefits for a period of time.

         [301 Neb. 617] (b) Medical Evidence

         Medical examinations were performed on Carlson in September 2014, April 2015, and October 2015. The September 2014 examination was performed by Dr. David Diamant, who was retained by Five Star. Diamant opined Carlson had not reached maximum medical improvement at that time, because she could possibly benefit from additional treatment to her right sacroiliac joint. Diamant also performed a second medical examination of Carlson in April 2015. At that time, he did not make an express finding of maximum medical improvement. He did, however, determine Carlson had suffered a 30-percent body-as-a-whole impairment. He also opined that Carlson would likely need "continuing maintenance care" and recommended she could work at "sedentary duty capacity."

         Dr. Morgan LaHolt, also retained by Five Star, conducted the October 8, 2015, medical examination. LaHolt found Carlson had reached maximum medical improvement as of that date for "any and all conditions" "related to [the] work accident injury of February of 2013." Notes from LaHolt's physical examination indicate Carlson was able to rise from a seating position using a cane. She reported pain with hip flexion, hip abduction, hip adduction, knee extension, and knee flexion. Carlson's pain limited her from engaging in range-of-motion testing. ...


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