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Fentress v. Westin, Inc.

Supreme Court of Nebraska

December 6, 2019

Suzy Fentress, formerly known as Suzy Schlick, appellee, Westin, Inc., and its Workers' Compensation Insurer, LM Insurance Corporation, appellants.

         1. Appeal and Error. As a threshold matter, an appellate court must determine what assignments of error were properly raised and argued on appeal.

         2. 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.

         3. ___:___ . 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 its merits.

         4. 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.

         5. ___: ___. 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.

         6. 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.

         [304 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.

         8. Workers' Compensation. Whether a plaintiff in a Nebraska workers' compensation case is totally disabled is a question of fact.

         9. 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 the evidence.

         10. 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.

         11. 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.

         12. 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.

         13. 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.

         14. 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.

         15. 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 benefits.

         16. 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.

         [304 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.

          Appeal from the Workers' Compensation Court: J. Michael Fitzgerald, Judge.

          Robert Kinney-Walker, of Law Offices of James W. Nubel, for appellants.

          Brynne 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.

          Miller-Lerman, J.


         Suzy 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 attorney fees.

         In a 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' purported cross-appeal.


         On 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 appeal.

         The 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 ...

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