Yost v. Davita, Inc. ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 482
Debra Yost, appellant and cross-appellee, v.
Davita, Inc., appellee and cross-appellant.
___ N.W.2d ___
Filed December 29, 2015. Nos. A-15-197, A-15-234, A-15-235.
1. Workers’ Compensation: Appeal and Error. On appellate review, the
findings of fact 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.
2. 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 pre-
cluded from substituting its view of the facts for that of the compensa-
tion court.
3. Workers’ Compensation. Under Neb. Rev. Stat. § 48-120(1)(a) (Supp.
2015), an employer is liable for all reasonable medical, surgical, and
hospital services which are required by the nature of the injury and
which will relieve pain or promote and hasten the employee’s restoration
to health and employment.
4. ____. Whether medical treatment is reasonable or necessary to treat
a workers’ compensation claimant’s compensable injury is a question
of fact.
5. Workers’ Compensation: Appeal and Error. Upon appellate review,
the findings of fact made by the trial judge of the compensation court
have the effect of a jury verdict and will not be disturbed unless
clearly wrong.
6. Workers’ Compensation. A procedure that provides relief from
the symptoms of an injury is compensable under Neb. Rev. Stat.
§ 48-120(1)(a) (Supp. 2015), regardless of whether those symptoms
produce a permanent physical impairment or disability.
7. ____. Neb. Rev. Stat. § 48-120(1)(a) (Supp. 2015) requires three factors
be established before payment for a medical service is required: that the
service (1) is reasonable, (2) is required by the work injury, and (3) will
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YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 482
relieve pain or promote or hasten the employee’s restoration to health
and employment.
8. Workers’ Compensation: Expert Witnesses: Physicians and
Surgeons. The Workers’ Compensation Court is the sole judge of the
credibility and weight to be given medical opinions, even when the
health care providers do not give live testimony.
9. ____: ____: ____. Resolving conflicts within a health care provider’s
opinion rests with the Workers’ Compensation Court, as the trier
of fact.
10. Workers’ Compensation: Expert Witnesses: Physicians and
Surgeons: Appeal and Error. When the record presents nothing more
than conflicting medical testimony, an appellate court will not substitute
its judgment for that of the Workers’ Compensation Court.
11. Workers’ Compensation: Proof. An applicant seeking modification of
a workers’ compensation award, or an approved agreement and stipula-
tion, under Neb. Rev. Stat. § 48-141 (Reissue 2010) must prove by a
preponderance of the evidence that an increase in his or her incapacity
is due solely to the injury resulting from the original accident.
12. ____: ____. To establish a change in incapacity under Neb. Rev. Stat.
§ 48-141 (Reissue 2010), an applicant must show a change in impair-
ment and a change in disability.
13. Workers’ Compensation: Words and Phrases. In a workers’ compen-
sation context, impairment refers to a medical assessment whereas dis-
ability relates to employability.
14. Workers’ Compensation: Appeal and Error. Whether an injured
worker’s incapacity has increased since the entry of an award of ben-
efits so as to justify modification of the award is a finding of fact, and
upon appellate review, the findings of fact made by the trial judge have
the effect of a jury verdict and will not be disturbed on appeal unless
clearly wrong.
15. Workers’ Compensation: Words and Phrases. Under Neb. Rev. Stat.
§ 48-121 (Reissue 2010), a workers’ compensation claimant may receive
permanent or temporary workers’ compensation benefits for either par-
tial or total disability. “Temporary” and “permanent” refer to the dura-
tion of disability, while “total” and “partial” refer to the degree or extent
of the diminished employability or loss of earning capacity.
16. ____: ____. Temporary disability ordinarily continues until the claim-
ant is restored so far as the permanent character of his or her injuries
will permit.
17. Workers’ Compensation. Compensation for temporary disability
ceases as soon as the extent of the claimant’s permanent disability
is ascertained.
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YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 482
18. ____. Temporary disability should be paid only to the time when it
becomes apparent that the employee will get no better or no worse
because of the injury.
19. Workers’ Compensation: Words and Phrases. The term “maximum
medical improvement,” describes the point of transition from temporary
to permanent disability.
20. Workers’ Compensation. Once a worker has reached maximum medi-
cal improvement from a disabling injury and the worker’s permanent
disability and concomitant decreased earning capacity have been deter-
mined, an award of permanent disability is appropriate.
21. ____. Generally, whether a workers’ compensation claimant has reached
maximum medical improvement is a question of fact.
22. Workers’ Compensation: Judgments: Time: Appeal and Error. The
Nebraska Workers’ Compensation Court may, on its own motion or on
the motion of any party, modify or change its findings, order, award, or
judgment at any time before appeal and within 14 days after the date of
such findings, order, award, or judgment.
23. Workers’ Compensation. The Nebraska Workers’ Compensation Court
may rule upon any motion addressed to the court by any party to a suit
or proceeding, including, but not limited to, motions for summary judg-
ment or other motions for judgment on the pleadings but not including
motions for new trial.
24. Pleadings: Judgments. A postjudgment motion must be reviewed
based on the relief sought by the motion, not based on the title of
the motion.
25. New Trial: Words and Phrases. A new trial is defined as a reexamina-
tion in the same court of an issue of fact after a verdict by a jury, report
of a referee, or a trial and decision by the court.
26. Evidence: Words and Phrases. Newly discovered evidence has been
defined as evidence which neither the litigant nor counsel could have
discovered by the exercise of reasonable diligence.
27. New Trial: Evidence. Newly discovered evidence must be more than
merely cumulative; it must be competent, relevant, and material, and of
such character as to reasonably justify a belief that its admission would
bring about a different result if a new trial were granted.
28. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Affirmed.
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YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 482
Eric B. Brown, of Atwood, Holsten, Brown, Deaver & Spier
Law Firm, P.C., L.L.O., for appellant.
Caroline M. Westerhold and Stephen J. Schultz, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
Pirtle, R iedmann, and Bishop, Judges.
R iedmann, Judge.
INTRODUCTION
Debra Yost appeals, and Davita, Inc., cross-appeals, from the
further award of the Workers’ Compensation Court. On appeal,
Yost argues that the compensation court erred in finding that
Davita was not required to pay for the cost of her spinal
cord stimulator.
On cross-appeal, Davita challenges the compensation court’s
finding that Yost suffered an increase in incapacity and is
now at maximum medical improvement (MMI) for her men-
tal injury. It also challenges the court’s refusal to reopen the
record for further evidence. We find no merit to the arguments
made on appeal or cross-appeal and therefore affirm.
BACKGROUND
On June 3, 2008, Yost suffered a work-related injury to her
lower back. In an award dated November 25, 2009, the com-
pensation court found that she reached MMI with respect to
her low-back injury and sustained a 35-percent permanent loss
of earning capacity. Davita was ordered to pay Yost’s past and
future medical expenses.
On May 26, 2010, Yost filed an application for modifi-
cation, alleging that she suffered material and substantial
changes in her physical condition and an increase in incapac-
ity due to her work-related injuries. Yost and Davita entered
into an agreement regarding modification of the award. The
parties agreed that Yost suffered an increase in incapacity due
solely to her work injury and again became temporarily totally
disabled pending low-back surgery, which was approved by
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YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 482
Davita. The parties further stipulated that the worsening of
Yost’s back condition also caused or aggravated depression
symptoms. Thus, she was entitled to all reasonable and neces-
sary future medical care for her low-back injuries as well as
her depression symptoms. The compensation court approved
the parties’ agreement and stipulations.
In January 2011, Yost underwent spinal fusion surgery at
the L4-5 and L5-S1 levels of her spine. Following surgery,
she began to experience back spasms and her pain continued.
She underwent additional treatment, including pain manage-
ment, therapy, and medication. Eventually, based on Yost’s
continued pain and problems stemming from her lower back,
her spinal surgeon recommended a spinal cord stimulator,
which he believed would provide her some relief. He referred
her to an anesthesiologist and pain specialist who determined
that Yost was a candidate for a trial spinal cord stimulator,
which she received in March 2013. The trial was consid-
ered successful, and Yost received a permanent stimulator in
April 2013.
At the time Yost was undergoing continued treatment for
her back, she was also seeking treatment for depression,
insomnia, and anxiety. In May 2011, Yost was diagnosed
with major depression and prescribed antidepressant medica-
tion. In August, her treating psychiatrist opined that Yost’s
depression was secondary in large part to her June 2008
work injury. He did not believe that she was able to work at
all given that her depression was impairing her concentra-
tion. In May 2013, her treating psychiatrist reported that her
condition remained unchanged and that in his opinion, Yost
remained permanently and totally disabled from a psychiat-
ric standpoint.
Davita filed a petition for modification, alleging that Yost
experienced a decrease in incapacity and had reached MMI.
Yost filed an answer and counterclaim for modification,
claiming that she had again reached MMI and requesting
that the court find her permanently and totally disabled as
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YOST v. DAVITA, INC.
Cite as 23 Neb. Ct. App. 482
a result of her work-related injuries. She also requested that
the court order Davita to cover the cost of her spinal cord
stimulator.
Trial was held on the parties’ requests for modification, and
the compensation court entered a further award on February
13, 2015. The court found that Yost had reached MMI for
her low-back condition as of October 19, 2012, and for her
psychological condition as of June 18, 2014. Relying on the
opinions of Drs. Robert Arias and Vithyalakshmi Selvaraj, the
court determined that Yost is completely disabled as a result of
her depression.
The court also found that Davita was not responsible for
the cost of the spinal cord stimulator. The court acknowledged
Yost’s testimony that the stimulator alleviated some symptoms
in her legs and feet, but it emphasized that she still has pain
in her lower back. The court also noted that several physicians
opined that the stimulator was not necessary and would not
alleviate her symptoms. Further, the court observed that Yost
testified that the stimulator helped her functionality but did
not aid in her return to work.
On February 24, 2015, Davita filed a motion to reopen the
evidence. Davita alleged that it had newly discovered evidence
relevant to the issues in the case. At a hearing on the motion,
an affidavit from Yost’s former husband was received into
evidence wherein he stated that he had personal knowledge
regarding misrepresentations Yost made as to the cause and
extent of her back injuries and manipulations she made of
medical treatment for the purpose of increasing the value of
her workers’ compensation claim. The compensation court
subsequently entered an order finding that it lacked authority
to open the record to receive additional evidence after having
already rendered its decision.
On March 3, 2015, Davita filed a motion for offer of proof
requesting the opportunity to make an offer of proof to allow
it to timely perfect an appeal from the denial of its request
to reopen the evidence. On March 4, Yost filed a notice of
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Cite as 23 Neb. Ct. App. 482
her intent to appeal the further award. A hearing on Davita’s
motion for offer of proof was held on March 6, and the com-
pensation court determined that it no longer had jurisdiction
over the matter because Yost had already filed her notice of
appeal. Therefore, Davita’s motion was dismissed. Yost timely
appeals the further award, and Davita cross-appeals the denial
of its postjudgment motions. The matters have been consoli-
dated for our consideration.
ASSIGNMENTS OF ERROR
On appeal, Yost assigns that the compensation court erred
in failing to require that Davita pay for the spinal cord
stimulator.
On cross-appeal, Davita assigns that the compensation
court erred in finding that (1) Yost suffered an increase in
incapacity due solely to her work-related accident and that
she is at MMI for her mental injury, (2) it lacked authority to
reopen the evidentiary record, and (3) it lacked jurisdiction
over Davita’s motion to make an offer of proof.
STANDARD OF REVIEW
[1,2] Under Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensa-
tion 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. Manchester v. Drivers Mgmt., 278 Neb. 776, 775
N.W.2d 179 (2009). On appellate review, the findings of fact
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. Id. If the record contains evidence
to substantiate the factual conclusions reached by the trial
judge in workers’ compensation cases, an appellate court is
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YOST v. DAVITA, INC.
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precluded from substituting its view of the facts for that of the
compensation court. Id.
ANALYSIS
Spinal Cord Stimulator.
Yost asserts that the compensation court erred in finding
that the cost of the spinal cord stimulator was not reasonable.
We find no merit to this argument.
[3-5] Under Neb. Rev. Stat. § 48-120(1)(a) (Supp. 2015),
an employer is liable for all reasonable medical, surgical,
and hospital services which are required by the nature of the
injury and which will relieve pain or promote and hasten the
employee’s restoration to health and employment. Whether
medical treatment is reasonable or necessary to treat a work-
ers’ compensation claimant’s compensable injury is a question
of fact. Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757,
707 N.W.2d 232 (2005). Upon appellate review, the findings
of fact made by the trial judge of the compensation court have
the effect of a jury verdict and will not be disturbed unless
clearly wrong. Id.
In the present case, in finding that Davita was not liable
for the cost of the spinal cord stimulator, the compensation
court relied upon the opinions of Drs. Timothy Burd, Charles
Taylon, and Chris Cornett. In an office note dated June 18,
2011, Dr. Burd reported that after reviewing Yost’s recent MRI,
he did not identify any significant pathology or reasons for her
spinal cord stimulator.
Similarly, in a report dated October 20, 2012, Dr. Taylon
stated that he was unable to find any objective findings for
Yost’s continued pain. He stated that he “would challenge
any predication by any doctor that further procedures on
[Yost] could possibly make her better” and advised that
further invasive procedures not be performed. In a report
a month later, he specifically stated that he did not feel
that Yost would benefit from a spinal cord stimulator. He
reported that in his experience, such treatment is a “notorious
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failure” in people with benign pain, especially those involved
in litigation.
Dr. Cornett’s report dated August 1, 2014, indicated that he
agreed with Dr. Taylon. Dr. Cornett noted Yost’s reports that
the stimulator helped with some of her leg pain and toe numb-
ness and tingling but did not really help her back pain, and she
still rated her pain as a 6 or 7 out of 10 primarily in her lower
back. Dr. Cornett agreed with Dr. Taylon’s opinion that Yost
was at MMI in October 2012 and therefore did not require
additional treatment. Thus, he would not have recommended
the spinal cord stimulator.
In its further award, the compensation court cited the opin-
ions from Drs. Burd, Taylon, and Cornett in reaching its deci-
sion that the spinal cord stimulator was not reasonable treat-
ment. Specifically, the court stated: “The [c]ourt simply does
not believe that for the cost incurred the spinal cord stimulator
was reasonable treatment in light of the limited benefit it pro-
vided.” Yost interprets the court’s statements as a finding that
the cost for the spinal cord stimulator was not reasonable. Yost
misinterprets the court’s finding.
As stated above, under § 48-120(1)(a), an employer is liable
for all reasonable medical, surgical, and hospital services which
are required by the nature of the injury and which will relieve
pain or promote and hasten the employee’s restoration to health
and employment. The compensation court found that in light
of Drs. Burd’s, Taylon’s, and Cornett’s opinions, coupled with
Yost’s testimony that she still has pain in her lower back after
the stimulator was implanted, the cost outweighed the benefit,
resulting in a finding that it was not reasonable treatment. We
find no error in this analysis.
[6,7] Yost cites to Pearson v. Archer-Daniels-Midland
Milling Co., 282 Neb. 400, 803 N.W.2d 489 (2011), to argue
that the implementation of the stimulator was reasonable, and
therefore compensable, because it alleviated some symptoms
in her legs and feet. In Pearson, the Supreme Court observed
that a procedure that provides relief from the symptoms of an
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injury is compensable under § 48-120(1)(a) (Reissue 2010),
regardless of whether those symptoms produce a permanent
physical impairment or disability. (Emphasis in original.) It
is important to note, however, that in Pearson, the Supreme
Court remanded the cause for a factual determination as
to whether the procedure for which the employee sought
compensation “falls under the provisions of § 48-120.” 282
Neb. at 408, 803 N.W.2d at 495. On remand, the Workers’
Compensation Court found Pearson’s procedure was not com-
pensable because it was not required by the work-related
injury and the Supreme Court affirmed. Pearson v. Archer-
Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154
(2013). In so doing, the court iterated that § 48-120(1)(a)
requires three factors be established: that the service (1) is
reasonable, (2) is required by the work injury, and (3) will
relieve pain or promote or hasten the employee’s restoration
to health and employment.
In the present case, Yost focuses only on the factor dealing
with relief of pain; she ignores the requirements that the serv­
ice be reasonable and be required by the nature of the injury.
Although the stimulator afforded relief to some of Yost’s
symptoms, she admitted that it did not go high enough to
help her lower back, and when questioned by Dr. Cornett, she
still rated the pain in her back as a “6 to 7 out of 10.” Thus,
although there was improvement in some secondary symptoms,
the stimulator was not providing relief from the main symptom
of her work-related injury, namely her low-back pain. Given
the medical testimony of Drs. Burd, Taylon, and Cornett, and
Yost’s own testimony of the limited relief the stimulator pro-
vided, we cannot say the court was clearly wrong in determin-
ing that the spinal cord stimulator was not a reasonable service
for which Davita was liable.
[8-10] We recognize that some of Yost’s medical provid-
ers issued opposing viewpoints and opined that the spinal
cord stimulator was causally related, reasonable, and neces-
sary to treat her work-related injuries. However, the Workers’
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Compensation Court is the sole judge of the credibility and
weight to be given medical opinions, even when the health care
providers do not give live testimony. Damme v. Pike Enters.,
289 Neb. 620, 856 N.W.2d 422 (2014). Resolving conflicts
within a health care provider’s opinion also rests with the
compensation court, as the trier of fact. Id. When the record
presents nothing more than conflicting medical testimony, an
appellate court will not substitute its judgment for that of the
compensation court. Id. The compensation court chose to find
the opinions of Drs. Burd, Taylon, and Cornett credible, and
we do not reweigh that decision on appeal. Based on the record
before us, we cannot say the compensation court was clearly
wrong in determining that Davita was not liable for the costs
of the stimulator.
Increase in Incapacity.
On cross-appeal, Davita claims that the compensation court
erred in finding that Yost suffered an increase in incapacity
due solely to her work-related accident. Davita argues that any
increase in Yost’s incapacity was not due solely to her work-
related injury because the compensation court found that any
pain and treatment related to the L2-3 level of Yost’s spine
was not related to the June 2008 work accident, and Yost’s
depression was exacerbated by her generalized back pain,
which included pain at the L2-3 level. We find no merit to
this argument.
[11-14] An applicant seeking modification of a workers’
compensation award, or an approved agreement and stipula-
tion, under Neb. Rev. Stat. § 48-141 (Reissue 2010) must
prove by a preponderance of the evidence that an increase in
his or her incapacity is due solely to the injury resulting from
the original accident. See Jurgens v. Irwin Indus. Tool Co.,
20 Neb. Ct. App. 488, 825 N.W.2d 820 (2013). To establish a
change in incapacity under § 48-141, an applicant must show
a change in impairment and a change in disability. Jurgens v.
Irwin Indus. Tool Co., supra. Impairment refers to a medical
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assessment whereas disability relates to employability. Id.
Whether an injured worker’s incapacity has increased since the
entry of an award of benefits so as to justify modification of
the award is a finding of fact, and upon appellate review, the
findings of fact made by the trial judge have the effect of a
jury verdict and will not be disturbed on appeal unless clearly
wrong. See Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d
383 (2013).
In Sands v. School Dist. Of City of Lincoln, 7 Neb. Ct. App.
28, 581 N.W.2d 894 (1998), this court analyzed the meaning
and effect of the phrase “due solely to the injury” to determine
whether the evidence supported a finding that an employee’s
increased disability was due solely to a prior work injury.
There, the employee suffered a work-related injury to her
knee in 1983. She also had degenerative osteoarthritis which
affected her knee. The employee later sought additional ben-
efits based on increased disability.
At the modification hearing, the employee’s physician testi-
fied that he found it difficult to separate how much disability
was due to repeated traumatic events and the presence of
arthritis but that the original work injury was a material and
substantial factor as it related to the need for knee replace-
ment and the impairment. He also testified that he was unable
to determine the amount of impairment that was caused by
the natural progression of the preexisting conditions or by
new traumas other than the work accident. He further testi-
fied that there were several major contributing factors to
the employee’s treatment including the original work-related
injury, the degenerative osteoarthritis, the multiple other inci-
dents of trauma to her knees, and the natural aging process.
Despite this testimony, the workers’ compensation court found
that the employee had suffered an increase in disability due
solely to the original work accident and awarded compensa-
tion accordingly.
On appeal, we noted that in Hohnstein v. W.C. Frank, 237
Neb. 974, 468 N.W.2d 597 (1991), the Supreme Court stated
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that the question to be considered was whether the worker’s
medical expert evidence sufficiently demonstrated the causal
connection between the original work-related accident and
the increased incapacity. We observed that in Hohnstein, the
Supreme Court ultimately concluded that for medical testi-
mony to be the basis for an award, it must be sufficiently defi-
nite and certain that a conclusion can be drawn that there was
a causal connection between the accident and the disability.
We reiterated that the compensation court is the sole judge of
credibility and that an appellate court does not substitute its
judgment for that of the lower court. We thus affirmed, hold-
ing that the record did not justify a finding that the trial court
clearly erred in determining that the increase in incapacity was
due solely to the original accident.
In the present case, in reaching its decision that Yost was
permanently and totally disabled as a result of her psycho-
logical injury, the compensation court relied on the opinions of
Drs. Arias and Selvaraj as well as a functional capacity evalu-
ation. In a November 17, 2014, letter, Dr. Selvaraj wrote that
although Yost experienced minor stress from family issues, it
is her depression and psychological conditions associated with
her work disability that is solely attributable to her incapacity
and limitations on her ability to work. She further reported that
all of the psychological and psychiatric treatment Yost received
was reasonable and necessary to treat injuries resulting from
the June 2008 work accident.
Similarly, Dr. Arias agreed that Yost’s psychological con-
ditions were causally related to injuries from her original
work accident and complications from her back fusion surgery.
The functional capacity evaluation accepted the opinions of
Drs. Arias and Selvaraj and determined that Yost suffered a
100-percent loss of earning capacity. We cannot find that it was
clear error when the compensation court relied on these medi-
cal opinions to find Yost’s increased incapacity was due solely
to her work injury.
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We also note that the compensation court made a factual
finding that the L2-3 level was not a pain generator based on
an opinion by Dr. Cornett. This finding was not challenged on
appeal. Thus, all of the pain Yost experiences in her back is,
in fact, related to the work accident. And it is her back pain
and limitations from her work-related back injury that have
exacerbated her depression symptoms to the point that she is
unable to work.
Based on the record before us, we find no clear error in the
compensation court’s decision. We therefore affirm the finding
that Yost sustained a 100-percent loss of earning capacity based
solely on the 2008 work-related injuries.
MMI for Psychological Injury.
Davita next contends that the compensation court errone-
ously determined that Yost was at MMI for her depression.
We disagree.
[15-18] Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a
workers’ compensation claimant may receive permanent or
temporary workers’ compensation benefits for either partial
or total disability. “Temporary” and “permanent” refer to the
duration of disability, while “total” and “partial” refer to the
degree or extent of the diminished employability or loss of
earning capacity. Rodriguez v. Hirschbach Motor Lines, 270
Neb. 757, 707 N.W.2d 232 (2005). Temporary disability ordi-
narily continues until the claimant is restored so far as the
permanent character of his or her injuries will permit. Id.
Compensation for temporary disability ceases as soon as the
extent of the claimant’s permanent disability is ascertained. Id.
In other words, temporary disability should be paid only to the
time when it becomes apparent that the employee will get no
better or no worse because of the injury. Id.
[19-21] The term “maximum medical improvement,” or
MMI, has been used to describe the point of transition from
temporary to permanent disability. See id. Once a worker
has reached MMI from a disabling injury and the worker’s
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permanent disability and concomitant decreased earning capac-
ity have been determined, an award of permanent disability is
appropriate. Id. Generally, whether a workers’ compensation
claimant has reached MMI is a question of fact. Id.
Dr. Arias placed Yost at MMI for her depression as of June
18, 2014, which is the date the compensation court utilized for
its findings. Dr. Selvaraj, Yost’s treating psychiatrist, indicated
that she hoped Yost could return to work and continued to treat
her with the hope of improvement. Nevertheless, Dr. Selvaraj
also placed Yost at MMI, albeit as of November 17, 2014.
Dr. Selvaraj explained that if Yost’s physical back injuries are
not going to get any better, the prognosis for improvement
for her mental condition is “pretty limited.” It is undisputed
that Yost is at MMI for her back injury, and she has declined
additional treatment. Because Yost’s depression is dependent
upon her physical pain and limitations, the compensation court
found that Yost is as good as she is going to get physically
and, therefore, psychologically. Again, we recognize there
were opinions to the contrary, including medical opinions that
Yost was “malingering” and that her depression and anxiety
were motivated by secondary gain. However, the compensa-
tion court recognized the conflicting evidence as well and
nevertheless concluded that the preponderance of the evidence
established that Yost had reached MMI for her psychologi-
cal injury.
We repeat that the compensation court is the sole judge of
the credibility and weight to be given medical opinions, even
when the health care providers do not give live testimony. See
Damme v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014).
Resolving conflicts within a health care provider’s opinion also
rests with the court, as the trier of fact. Id. When the record
presents nothing more than conflicting medical testimony, an
appellate court will not substitute its judgment for that of the
compensation court. Id. As such, we find no clear error in the
compensation court’s factual finding that Yost reached MMI
for her depression.
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Motion to Reopen Evidence.
In filing a motion to reopen evidence, Davita requested
that the court reopen the record, accept new evidence, and
reconsider its decision contained in the further award. Davita
now claims that the compensation court erred in denying
its motion to reopen the evidence. We find no merit to this
argument.
[22] The Nebraska Workers’ Compensation Court may, on its
own motion or on the motion of any party, modify or change
its findings, order, award, or judgment at any time before
appeal and within 14 days after the date of such findings,
order, award, or judgment. Neb. Rev. Stat. § 48-180 (Cum.
Supp. 2014). Thus, because Davita’s motion was filed 11 days
after entry of the further award and prior to Yost’s appeal, the
compensation court had the authority under § 48-180 to modify
its findings.
[23] However, the compensation court’s authority does not
include the ability to rule on motions for new trial. The com-
pensation court may rule upon any motion addressed to the
court by any party to a suit or proceeding, including, but not
limited to, motions for summary judgment or other motions for
judgment on the pleadings but not including motions for new
trial. Neb. Rev. Stat. § 48-162.03 (Cum. Supp. 2014). We must
therefore determine whether the compensation court properly
treated Davita’s motion as a request for a new trial.
[24] We recognize that Davita’s motion was entitled “Motion
to Reopen the Evidence or in the Alternative Motion to Modify
Further Award Pursuant to §[§ ]48-180, 48-162.03 and 48-141.”
At the hearing, Davita argued that in reality its requests were
not alternative, but, rather, it was seeking to reopen the evi-
dence and modify the further award. A postjudgment motion
must be reviewed based on the relief sought by the motion, not
based on the title of the motion. Woodhouse Ford v. Laflan,
268 Neb. 722, 687 N.W.2d 672 (2004).
[25-27] Under Nebraska law governing general civil pro-
cedure, a new trial is defined as a reexamination in the same
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court of an issue of fact after a verdict by a jury, report of a
referee, or a trial and decision by the court. See, Neb. Rev.
Stat. § 25-1142 (Reissue 2008); Woodhouse Ford v. Laflan,
supra. One of the bases upon which a new trial may be granted
is newly discovered evidence. See § 25-1142(7). Newly dis-
covered evidence has been defined as evidence which neither
the litigant nor counsel could have discovered by the exercise
of reasonable diligence. State v. Timmens, 282 Neb. 787, 805
N.W.2d 704 (2011). Newly discovered evidence must also be
more than merely cumulative; it must be competent, relevant,
and material, and of such character as to reasonably justify a
belief that its admission would bring about a different result if
a new trial were granted. Id.
In the case at hand, Davita asked the compensation court
to reopen the record, accept newly discovered evidence, and
reconsider its prior decision based upon its belief that the new
evidence would bring about a different result. In other words,
Davita asserted that if the compensation court weighed the
newly discovered evidence, it might change its decision find-
ing that Yost was totally and permanently disabled. Regardless
of how Davita’s motion was titled, it was seeking a new trial
based upon newly discovered evidence, which is not permitted
in the compensation court.
We recognize that in Woodhouse Ford v. Laflan, supra, the
trial court treated a motion for new trial as a motion to alter
or amend, a motion which could be heard in the compensa-
tion court. However, in that case, the moving party asked the
court to consider newly discovered evidence and then alter its
judgment after entry of summary judgment, in which the court
only determined that there were no genuine issues of fact for it
to decide. Under the definition of a new trial, a party is seek-
ing a reexamination of an issue of fact after a verdict, report,
or trial. Thus, in Woodhouse Ford, the moving party was not
actually seeking a reexamination of an issue of fact because
no factual findings were made in the entry of summary judg-
ment. Here, the compensation court made factual findings
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with respect to the nature and extent of Yost’s disability and
weighed the credibility of conflicting expert opinions. Thus,
Davita was, in fact, seeking a reexamination of factual issues,
and the court properly treated the motion as a motion for new
trial. We therefore find that the court did not err in denying the
motion to reopen evidence.
Motion for Offer of Proof.
[28] Davita also asserts that the compensation court erro-
neously denied its motion to make an offer of proof. Davita
sought to make an offer of proof of the newly discovered evi-
dence it obtained in order to complete the record for appellate
purposes. Based upon our finding above that the compensa-
tion court properly found it did not have the authority to rule
on the motion to reopen evidence, we need not address this
assignment of error. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it. Tierney v. Four H Land Co.,
288 Neb. 586, 852 N.W.2d 292 (2014).
CONCLUSION
We find no merit to the arguments on appeal or cross-appeal
and therefore affirm.
A ffirmed.