Danielle Krause and Laurie Hoyt, as coguardians and coconservators for llnda carlson, appellees,
Five Star Quality Care, Inc., also known as Crestview Healthcare Center, and New Hampshire Insurance Company, its workers' compensation insurance carrier, appellants.
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
___. In workers' compensation cases, an appellate court
is obligated to make its own determinations regarding
questions of law.
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.
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.
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
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.
Whether a workers' compensation claimant has reached
maximum medical improvement is a question of fact.
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.
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.
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
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.
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.
___. Whether a worker is totally and permanently disabled is
a question of fact.
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
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
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.
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
Workers' Compensation: Words and
Phrases. Disability, in contrast to impairment, is
an economic inquiry.
___: ___. 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.
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
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.
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.
___. The Nebraska Workers' Compensation Act should be
construed liberally to carry out its spirit and beneficent
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.
from the Workers' Compensation Court: John R. Hoffert,
Patrick J. Mack, of Hennessy & Roach, P.C., for
A. Fix, of Fix Law Office, PC, L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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.
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.
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
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.
Work Injury and Treatment
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.
Neb. 617] (b) Medical Evidence
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
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. ...