Suzy Fentress, formerly known as Suzy Schlick, appellee, Westin, Inc., and its Workers' Compensation Insurer, LM Insurance Corporation, appellants.
Appeal and Error. As a threshold matter, an
appellate court must determine what assignments of error were
properly raised and argued on appeal.
Rules of the Supreme Court: Appeal and
Error. The cross-appeal section of an appellate
brief must set forth a separate title page, a table of
contents, a statement of the case, assigned errors,
propositions of law, and a statement of the facts.
___:___ . When a brief of an appellee fails to present a
proper cross-appeal pursuant to Neb. Ct. R. App. P. §
2-109 (rev. 2014), an appellate court declines to consider
Workers' Compensation: Appeal and Error.
A judgment, order, or award of the compensation court may be
modified, reversed, or set aside by an appellate court 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.
___. Determinations by a trial judge of the Workers'
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence.
Workers' Compensation: Statutes: Appeal and
Error. The meaning of a statute is a question of
law, and an appellate court is obligated in workers'
compensation cases to make its own determinations as to
questions of law.
Neb. 620] 7. Workers'
Compensation: Evidence: Appeal and Error. Admission
of evidence is within the discretion of the Workers'
Compensation Court, whose determination in this regard will
not be reversed upon appeal absent an abuse of discretion.
Workers' Compensation. Whether a
plaintiff in a Nebraska workers' compensation case is
totally disabled is a question of fact.
Workers' Compensation: Evidence: Appeal and
Error. In testing the sufficiency of the evidence to
support the findings of fact in a workers' compensation
case, every controverted fact must be resolved in favor of
the successful party and the successful party will have the
benefit of every inference that is reasonably deducible from
Workers' Compensation: Pretrial
Procedure. Neb. Rev. Stat. § 48-177 (Cum. Supp.
2018) is a voluntary dismissal of a case which removes the
case from the compensation court's docket.
Workers' Compensation. Neb. Rev. Stat.
§ 48-162.03(1) (Cum. Supp. 2018) grants a compensation
court broad authority to rule on any motion except motions
for new trial and motions for reconsideration.
Workers' Compensation: Evidence. Given
the beneficent purposes of workers' compensation law, a
compensation court can admit evidence in order to investigate
cases in the manner it judges is best calculated to ascertain
the substantial rights of the parties and to carry out justly
the spirit of the Nebraska Workers' Compensation Act.
Workers' Compensation: Rules of the Supreme
Court. If an employer denies compensability for an
injury, the employee can avoid the chain of referral and has
a right pursuant to Neb. Rev. Stat. § 48-120(2)(a) (Cum.
Supp. 2018) and Workers' Comp. Ct. R. of Proc. 50(A)(6)
(2018) to select his or her own physicians for treatment and
later seek compensation.
Workers' Compensation: Proximate Cause:
Proof. In workers' compensation cases, an
independent intervening cause, as the proximate cause of an
injury, is, generally, a matter of defense and, as such, must
be proved by the party asserting that defense.
Workers' Compensation. The mere
possibility of an independent intervening cause does not
relieve an employer from liability for an employee's
otherwise compensable claim for workers' compensation and
Workers' Compensation: Proof. A
defendant asserting a break in causation by an independent
intervening cause must prove the break in causation by
competent medical testimony if the claimed injuries are of
such a character that scientific testimony is required to
prove their validity.
Neb. 621] 17. Workers' Compensation: Attorney
Fees. A determination of an award of attorney fees
under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2018) must be
calculated on a case-by-case basis.
from the Workers' Compensation Court: J. Michael
Kinney-Walker, of Law Offices of James W. Nubel, for
Holsten Puhl, of Atwood, Holsten, Brown, Deaver & Spier
Law Firm, PC, L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Fentress, plaintiff-appellee, suffered a work-related injury
in October 2014 while working for Westin, Inc. In October
2017, the Workers' Compensation Court entered an award
under which she received temporary partial workers'
compensation benefits. In 2018, Westin and LM Insurance
Corporation (collectively Westin), defendants-appellants,
filed a motion to terminate these temporary indemnity
benefits and a motion to determine maximum medical
improvement (MMI) and permanency. On October 22, 2018, the
compensation court held an evidentiary hearing on
Westin's motion to determine MMI. The compensation court
admitted significant medical evidence, depositions, and
testimony. On October 25, after the hearing, Westin moved to
withdraw its motion to determine MMI, but the compensation
court disallowed the withdrawal of the motion. A subsequent
hearing was held on November 19, on Fentress' motion for
written order filed January 15, 2019, the compensation court
made detailed factual findings and, inter alia, awarded
temporary total disability and attorney fees to Fentress.
Westin filed an appeal, and Fentress filed a purported
cross-appeal. [304 Neb. 622] As explained below, we determine
that the compensation court did not err when it overruled
Westin's motion to withdraw its motion to determine MMI;
admitted recordings of Fentress' consultation with her
physician; found that Fentress had achieved MMI with respect
to mental health issues but not physical health issues; and
awarded Fentress medical treatment, temporary total
disability, and attorney fees. Accordingly, we affirm.
Further, as indicated below, we do not consider Fentress'
October 4, 2014, Fentress suffered compensable work-related
injuries to her hip and mental health in the course of her
employment with Westin, Inc., and she was awarded temporary
partial benefits by the Nebraska Workers' Compensation
Court in an October 6, 2017, award. The fact of the initial
injury and initial award are not challenged in this appeal.
Following the 2017 award, Fentress continued treatment,
including hip surgery and pain management treatment targeted
to avoid substance abuse relapse. Westin eventually filed
motions to terminate indemnity benefits and to determine MMI
and permanency, and in response, Fentress filed a motion
requesting payment of medical expenses and attorney fees. The
compensation court's January 15, 2019, order on these
motions generally in favor of Fentress is the subject of this
compensation court held a hearing on October 22, 2018,
limited to the issue of whether Fentress had reached MMI. The
parties submitted evidence and testimony, and the court took
judicial notice of the October 6, 2017, award. On November
19, 2018, the court held a hearing on medical expenses to
date and Fentress' request for attorney fees. The
compensation court dictated its reasoning regarding ...