Weyerman v. Freeman Expositions , 26 Neb. Ct. App. 692 ( 2018 )


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    WEYERMAN v. FREEMAN EXPOSITIONS
    Cite as 
    26 Neb. Ct. App. 692
    R andy Weyerman, appellee, v. Freeman Expositions, Inc.,
    employer, and Old R epublic I nsurance Company,
    insurance carrier , appellants.
    ___ N.W.2d ___
    Filed December 18, 2018.   No. A-18-277.
    1.	 Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
    Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify,
    reverse, or set aside a compensation court decision only when (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 suf-
    ficient competent evidence in the record to warrant the making of the
    order, judgment, or award; or (4) the findings of fact by the compensa-
    tion court do not support the order or award.
    2.	 ____: ____. Findings of fact made by the compensation court have the
    same force and effect as a jury verdict and will not be set aside unless
    clearly erroneous.
    3.	 Workers’ Compensation: Evidence: Appeal and Error. When testing
    the sufficiency of the evidence to support findings of fact made by the
    compensation court trial judge, the evidence must be considered in the
    light most favorable to the successful party and the successful party
    will have the benefit of every inference reasonably deducible from
    the evidence.
    4.	 Employer and Employee: Independent Contractor. There is no single
    test for determining whether one performs services for another as an
    employee or as an independent contractor.
    5.	 ____: ____. Ordinarily, when a court is presented with a dispute regard-
    ing a party’s status as an employee or an independent contractor, the
    party’s status is a question of fact which must be determined after con-
    sideration of all the evidence in the case.
    6.	 Workers’ Compensation. As the trier of fact, the compensation court
    is the sole judge of the credibility of the witnesses and the weight to be
    given their testimony.
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    WEYERMAN v. FREEMAN EXPOSITIONS
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    7.	 Workers’ Compensation: Insurance: Liability: Time. When a subse-
    quent injury aggravates a prior injury, the insurer at risk at the time of
    the subsequent injury is liable. But, if the subsequent injury is a recur-
    rence of the prior injury, the insurer at risk at the time of the prior injury
    is liable.
    8.	 Workers’ Compensation: Appeal and Error. A finding in regard to
    causation of an injury is one for determination by the compensation
    court as the finder of fact.
    9.	 Workers’ Compensation: Expert Witnesses: Physicians and
    Surgeons. Resolving conflicts within a health care provider’s opinion
    rests with the compensation court, as the trier of fact.
    10.	 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 disability ordinarily continues until
    the claimant is restored so far as the permanent character of his or her
    injuries will permit.
    11.	 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.
    12.	 ____. Generally, whether a workers’ compensation claimant has reached
    maximum medical improvement is a question of fact.
    13.	 Workers’ Compensation: 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 compensation court.
    Appeal from the Workers’ Compensation Court: James R.
    Coe, Judge. Affirmed.
    Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson,
    Kuper & Wenninghoff, P.C., L.L.O., for appellants.
    Jacob M. Steinkemper, of Steinkemper Law, P.C., L.L.O.,
    for appellee.
    R iedmann, Bishop, and A rterburn, Judges.
    A rterburn, Judge.
    INTRODUCTION
    Freeman Expositions, Inc., and its insurance carrier, Old
    Republic Insurance Company (referred to herein individually
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    and collectively as “Freeman Expositions”), appeal from the
    Nebraska Workers’ Compensation Court’s award of benefits
    to Randy Weyerman. In the award, the compensation court
    ordered Freeman Expositions to pay to Weyerman tempo-
    rary total disability payments. In addition, the court ordered
    Freeman Expositions to “continue to provide and pay for such
    future medical and hospital services and treatment as may be
    reasonably necessary as a result of [Weyerman’s] accident and
    injury.” On appeal, Freeman Expositions assigns numerous
    errors, including that the compensation court erred in find-
    ing that it was Weyerman’s employer on the day of his acci-
    dent; that Weyerman’s injury occurred on September 17, 2015,
    rather than on October 9; that Weyerman had not yet reached
    maximum medical improvement (MMI); and that Weyerman
    is entitled to future medical care. For the reasons set forth
    herein, we affirm the compensation court’s award of benefits
    to Weyerman.
    BACKGROUND
    Weyerman’s Work
    as Stagehand
    Since 1994, Weyerman has worked as a stagehand. He
    described his job as “mostly set[ting] up . . . concerts, operas,
    plays, unload[ing] trucks, set[ting] up the gear. We do the light-
    ing, the sound. We do all the categories. We also do carpentry
    and we run spotlights for the shows and we also work as a
    deckhand moving band gear.” In order to facilitate job oppor-
    tunities, Weyerman is a member of the “International Alliance
    of Theatrical, Stage, and Moving Pictures.” This group is also
    referred to in our record as the “Local 42” or the “union.”
    Local 42 acts as a “referral hall,” obtaining and assigning jobs
    to its members.
    In 2015, Local 42 had a collective bargaining agreement
    with Complete Payroll Services, Inc. (Complete Payroll).
    Pursuant to that agreement, Complete Payroll was considered
    the employer of members of Local 42 when the members
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    worked on Complete Payroll jobs. The president of Complete
    Payroll confirmed that in 2015, the company was the employer
    of union members when they worked on Complete Payroll
    jobs. He explained that Complete Payroll had contracts with
    various vendors who needed stagehands. Complete Payroll
    would provide union members to the vendors. In return, the
    vendors would pay Complete Payroll for the work completed
    by union members. Complete Payroll would then disburse
    paychecks directly to union members. In addition, Complete
    Payroll provided union members with certain employment
    benefits. The collective bargaining agreement between Local
    42 and Complete Payroll provided that Complete Payroll pos-
    sessed “Management Rights” regarding its workforce:
    Subject to the provisions of this Agreement and appli-
    cable state and federal law, the Employer retains the sole
    right to manage its business and direct the work force
    including, but without being limited to, the right to estab-
    lish new tasks, abolish or change existing tasks, increase
    or decrease the number of tasks, change materials, proc­
    esses, products, equipment and operations. The Employer
    shall have the right to schedule and assign work to be
    performed, establish, maintain and enforce reasonable
    plant rules and regulations, establish attendance policies
    and have the right to hire or rehire employees, promote
    employees, to demote or suspend, discipline or discharge
    for just cause, and to transfer or layoff employees because
    of lack of work.
    The agreement also delineated a list of “work rules” for union
    members. These rules addressed such things as the length of
    the workday and the workweek, overtime and “premium” pay,
    and expectations during performances or rehearsals.
    Members of Local 42 could also obtain work separate and
    apart from Complete Payroll. In 2015, Local 42 also had a col-
    lective bargaining agreement with Freeman Expositions. That
    agreement referred to Freeman Expositions as the “employer”
    when union members were working on Freeman Expositions’
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    jobs. In fact, the first time a union member would work for
    Freeman Expositions, the member had to fill out “new hire
    paperwork.” Freeman Expositions would assign each union
    member an employee number and keep a record of each
    union member who had done work for the company. Freeman
    Expositions paid union members directly for their work on
    Freeman Expositions’ jobs. In addition, the agreement between
    Local 42 and Freeman Expositions included a description of
    the management rights possessed by Freeman Expositions. This
    description is nearly identical to the description of management
    rights retained by Complete Payroll in its agreement with Local
    42. Robert Lane, the business agent for Local 42, testified that
    Freeman Expositions managed union workers at the jobsites
    and controlled the work that the members completed.
    Weyerman’s Injury
    and Treatment
    On September 17, 2015, Weyerman was working for Freeman
    Expositions, setting up for a trade show. During the first hour
    of his workday, Weyerman unloaded a truck full of materials,
    including heavy carts and “[c]urtain rod carts.” While he was
    still unloading the materials, Weyerman began to feel pain
    in his back. Despite the pain, Weyerman continued to work,
    rolling out aisle carpets and hanging curtains for individual
    booths. As Weyerman worked, the pain worsened. Weyerman
    described the pain as “sharp” and “pinching.” Weyerman fin-
    ished his workday and had the next day off of work.
    When Weyerman returned to work after his day off and
    began cleaning up after the trade show, he “was hurting hor-
    ribly.” He got through the workday, but was only able to put
    away folding chairs. He could not do much physical labor.
    Weyerman’s pain did not improve. By 5 days after the accident,
    Weyerman described the pain as “brutal.” He was unable to
    even “get up off the floor.” Weyerman decided that he needed
    to report his injury and see a doctor. Weyerman informed
    Lane that he had hurt his back while working for Freeman
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    Expositions. Lane forwarded Weyerman’s accident report to
    Freeman Expositions. Freeman Expositions then authorized
    Weyerman to see Dr. Arthur West, who became Weyerman’s
    treating physician.
    Medical records indicate that when Weyerman first saw
    his treating physician on September 22, 2015, he was diag-
    nosed with a lumbar sprain and prescribed pain medication.
    The treating physician’s records indicate that 3 days later, on
    September 25, during a followup appointment, Weyerman told
    him that his pain had decreased and that his symptoms were
    improving. As a result of Weyerman’s report, his treating phy-
    sician told Weyerman that he could return to “modified work/
    activity.” The records further reflect that almost 1 week later,
    on October 2, Weyerman informed his treating physician that
    his symptoms had resolved and that he had been performing
    his regular work duties. The treating physician then released
    Weyerman from his care.
    According to Weyerman and Lane, during the latter part
    of September 2015, Weyerman did return to work as a stage-
    hand. However, Lane indicated that although Weyerman was
    working, he continued to complain that his back was hurting.
    Weyerman indicated to Lane that he really needed to work
    due to his financial situation, so Lane permitted Weyerman to
    do less physical jobs, including running a spotlight, handling
    lighting gear, and setting up for a ballet performance.
    On October 9, 2015, a few days after Weyerman was released
    from his treating physician’s care, Weyerman was working for
    Complete Payroll to set up for a concert. He was assigned to
    push boxes from a truck to the inside of the venue. Within 2
    hours of beginning this work, Weyerman reported that he could
    not continue because of his back pain. He “couldn’t even get
    up off [a] chair at that point.” Weyerman reported his injury
    and sought medical treatment. October 9 is the last day that
    Weyerman worked as a stagehand.
    On October 12, 2015, Weyerman was seen by a physician’s
    assistant at a health clinic. The notes from this visit indicate
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    that Weyerman reported that he injured his back 7 days prior to
    the visit, but he was “not sure” how he sustained the injury. A
    week later, on October 19, Weyerman saw his treating physi-
    cian again. Weyerman reported that he was again experienc-
    ing back pain and was unable to perform his work duties.
    Ultimately, the treating physician prescribed pain medication
    for Weyerman and ordered a magnetic resonance imaging of
    his lower back. The treating physician indicated that Weyerman
    was not currently able to work.
    The results of the magnetic resonance imaging revealed
    that Weyerman had multiple “disc bulge[s]” which were col-
    lectively referred to as “[m]ild to moderate multilevel lumbar
    spondylosis.” On November 2, 2015, the treating physician
    released Weyerman to return to work with some restrictions;
    however, Weyerman did not return to work. In addition, the
    treating physician referred Weyerman to a spine and pain cen-
    ter and to a physical therapist.
    Weyerman began seeing Dr. Liane Donovan at the spine
    and pain center on November 17, 2015. During Weyerman’s
    treatment with Donovan, he received multiple epidural ste-
    roid injections and attended more than 20 physical therapy
    sessions. Weyerman reported that neither of these treatment
    options afforded him significant, long-term relief. In February
    2016, Weyerman saw a surgeon, who was of the opinion
    that Weyerman had no “surgical options at this point.” The
    surgeon noted that he was “unable to identify the source of
    [Weyerman’s] symptoms[,] but he may have an annular tear in
    the lumbar spine.”
    On June 21, 2016, Donovan indicated her belief that
    Weyerman had reached MMI because he had “not responded
    to medication, injection therapy, [physical therapy,] and is not
    a surgical candidate.” Donovan ordered a functional capacity
    evaluation (FCE) for Weyerman. Weyerman participated in the
    FCE on July 8, 2016. However, the results of the FCE were
    deemed “invalid” because the evaluator did not believe that
    Weyerman was accurately representing his abilities. Based on
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    the invalid results of this FCE, Donovan released Weyerman
    from her care and indicated that he was capable of returning
    to work without any restrictions. Weyerman did not return to
    work as a stagehand.
    Compensation Court
    Proceedings
    Weyerman filed a petition in the compensation court alleg-
    ing that he was injured on September 17, 2015, in the course
    of his employment with Freeman Expositions. He also alleged
    that he was injured on October 9, in the course of his employ-
    ment with Complete Payroll.
    A hearing was held on Weyerman’s petition in January
    2018. At the hearing, the parties presented evidence, includ-
    ing Weyerman’s employment records; the collective bargain-
    ing agreements Local 42 had with Freeman Expositions and
    with Complete Payroll; Weyerman’s medical records from
    his treating physician and Donovan; and depositions from
    Weyerman and officials from Local 42, Complete Payroll, and
    Freeman Expositions.
    In addition to this evidence, Weyerman offered the results
    of an independent medical examination conducted on June
    30, 2017. Dr. Matthew West, the independent medical exam-
    iner, opined that Weyerman had not yet reached MMI. He
    believed that there were still treatments available that had
    not been tried and that such treatments may help minimize
    Weyerman’s symptoms and improve his overall function. He
    stated that it was “reasonable to anticipate future medical
    care that is related to the work injur[y],” including a referral
    to a pain clinic for medication management and chiropractic
    care. Essentially, he believed that Weyerman’s condition could
    improve with continued care.
    Weyerman also offered into evidence the results of a second
    FCE which had been conducted on September 20, 2016. There
    were no concerns with the validity of this FCE, because it was
    noted that Weyerman had given “Excellent Effort” during the
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    evaluation. The results revealed that Weyerman is capable of
    working at the sedentary-light physical demand level for 8
    hours per day.
    Also admitted into evidence were multiple letters authored
    by Donovan, which were all in response to inquiries from the
    parties. The first letter, dated February 29, 2016, was sent in
    response to an inquiry of counsel for Freeman Expositions. It
    stated, in part:
    It is my opinion that . . . Weyerman has not reached
    [MMI] pending completing of the physical therapy previ-
    ously ordered. [MMI] will be attained six (6) weeks after
    completion of the course of physical therapy. Based on his
    response to that therapy we will make determination[s]
    regarding permanent impairment and permanent restric-
    tions at that time.
    The second letter authored by Donovan is dated a little more
    than 8 months later, November 16, 2016. In that letter, Donovan
    answers specific inquiries presented to her by Weyerman’s
    counsel. Specifically, Donovan indicates that the work acci-
    dent on September 17, 2015, “significantly contributed to . . .
    Weyerman’s injury.” She also opines that Weyerman reached
    MMI on July 19, 2016, and that, based upon the invalid results
    of the first FCE, Weyerman has not sustained any permanent
    impairment. Her review of the results of the second FCE
    did not change her opinion about any permanent impairment.
    Finally, Donovan indicated her belief that future medical care
    due to Weyerman’s work injury is not expected.
    Almost 1 year later, on September 7, 2017, Donovan
    authored a third letter. This letter is in response to questions
    posed by counsel for Complete Payroll. In this letter, Donovan
    opines that when Weyerman reported back pain on October 9,
    2015, while working for Complete Payroll, that the pain consti-
    tuted “a recurrence of his underlying lumbar complaints rather
    than a new and distinct injury.”
    Donovan’s fourth letter, dated October 18, 2017, contradicts
    the September 7 letter. In the fourth letter, Donovan indicates
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    that after authoring the September 7 letter, she was presented
    with evidence that Weyerman had returned to work without
    restrictions prior to the October 9, 2015, accident. Based on
    this evidence, Donovan indicated that she was now “unable,
    based on a reasonable degree of medical certainty, to opine
    as to whether . . . Weyerman’s injuries and symptoms were
    caused solely by his September 17, 2015 or his October 9,
    2015 accidents.”
    Donovan’s last letter was dated January 15, 2018. In this
    letter she states:
    After reviewing new information regarding . . . Weyerman’s
    records, including the deposition of . . . Lane, the busi-
    ness agent for the local union, as well as [Weyerman’s]
    wage records, ongoing pain complaints, and work modifi-
    cations, it is my opinion to a reasonable degree of medical
    certainty that . . . Weyerman’s low back pain complaints
    in October were a recurrence of his underlying lumbar
    complaints rather than a new and distinct injury.
    Award
    Following the January 2018 hearing, the compensation
    court issued a detailed award. In the award, the court found
    that Weyerman suffered an injury to his back while working
    for Freeman Expositions on September 17, 2015. The court
    further found that Weyerman suffered a recurrence of this
    injury while working on October 9. The court then specifically
    found that Freeman Expositions was liable for Weyerman’s
    work-related injuries, because it was Weyerman’s employer on
    September 17.
    The court found that Weyerman had not yet reached MMI.
    As a result, it awarded Weyerman continuing temporary total
    disability payments in the amount of $376.71 per week. The
    compensation court also ordered Freeman Expositions to “pay
    for such future medical and hospital services and treatment as
    may be reasonably necessary as a result of” Weyerman’s acci-
    dent and the resulting injury.
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    Freeman Expositions appeals from the compensation
    court’s award.
    ASSIGNMENTS OF ERROR
    On appeal, Freeman Expositions assigns five errors.
    Freeman Expositions argues, restated and reordered, that the
    compensation court erred first in determining that it was
    Weyerman’s employer on September 17, 2015. Second,
    Freeman Expositions argues that the court erred in determin-
    ing that Complete Payroll was not Weyerman’s employer on
    October 9. Third, Freeman Expositions argues that the com-
    pensation court erred in finding that Weyerman did not suffer
    a new injury on October 9, but instead suffered a recurrence of
    his September 17 injury. Fourth, Freeman Expositions argues
    that the court erred in finding that Weyerman had not yet
    reached MMI and was, as a result, entitled to continuing tem-
    porary total disability payments. Finally, Freeman Expositions
    asserts that the court erred in ordering it to pay for Weyerman’s
    future medical care.
    STANDARD OF REVIEW
    [1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
    an appellate court may modify, reverse, or set aside a compen-
    sation court decision only when (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 suffi-
    cient 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.
    Hintz v. Farmers Co-op Assn., 
    297 Neb. 903
    , 
    902 N.W.2d 131
    (2017).
    [2,3] Findings of fact made by the compensation court
    have the same force and effect as a jury verdict and will not
    be set aside unless clearly erroneous. 
    Id. When testing
    the
    sufficiency of the evidence to support findings of fact made
    by the compensation court trial judge, the evidence must be
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    considered in the light most favorable to the successful party
    and the successful party will have the benefit of every infer-
    ence reasonably deducible from the evidence. 
    Id. ANALYSIS Weyerman’s
    Employer on
    September 17, 2015
    Freeman Expositions asserts that the compensation court
    erred in finding that it was Weyerman’s employer on September
    17, 2015, when he injured his back. Freeman Expositions argues
    that Weyerman has never been its employee. Instead, it argues
    that Weyerman is either an employee of Complete Payroll or
    an independent contractor. Upon our review, we conclude that
    there is sufficient, competent evidence in the record to support
    the compensation court’s finding that Freeman Expositions
    was Weyerman’s employer on September 17.
    [4,5] There is no single test for determining whether one
    performs services for another as an employee or as an indepen-
    dent contractor, and the following factors must be considered:
    (1) the extent of control which, by the agreement, the employer
    may exercise over the details of the work; (2) whether the
    one employed is engaged in a distinct occupation or business;
    (3) the kind of occupation, with reference to whether, in the
    locality, the work is usually done under the direction of the
    employer or by a specialist without supervision; (4) the skill
    required in the particular occupation; (5) whether the employer
    or the one employed supplies the instrumentalities, tools, and
    the place of work for the person doing the work; (6) the length
    of time for which the one employed is engaged; (7) the method
    of payment, whether by the time or by the job; (8) whether
    the work is part of the regular business of the employer; (9)
    whether the parties believe they are creating an agency rela-
    tionship; and (10) whether the employer is or is not in busi-
    ness. Jacobson v. Shresta, 
    21 Neb. Ct. App. 102
    , 
    838 N.W.2d 19
    (2013). Ordinarily, when a court is presented with a dispute
    regarding a party’s status as an employee or an independent
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    contractor, the party’s status is a question of fact which must
    be determined after consideration of all the evidence in the
    case. 
    Id. In the
    compensation court’s analysis of whether Weyerman
    was an employee of Freeman Expositions, it focused first on the
    collective bargaining agreement entered into by Local 42 and
    Freeman Expositions. The court noted that in the agreement,
    Freeman Expositions is clearly referred to as the “employer.”
    In addition, the compensation court found that pursuant to the
    terms of the agreement, Freeman Expositions retained a great
    deal of control over the work completed by union members. In
    fact, as we discussed in the background section of this opin-
    ion, the collective bargaining agreement includes the follow-
    ing provision regarding Freeman Expositions’ “Management
    Rights”:
    Subject to the provisions of this Agreement and appli-
    cable state and federal law, the Employer retains the
    sole right to manage its business and direct the working
    force including, but without being limited to, the right
    to establish new tasks, abolish or change existing tasks,
    increase or decrease the number of tasks, change materi-
    als, processes, products, equipment and operations. The
    Employer shall have the right to schedule and assign work
    to be performed, . . . establish, maintain and enforce rea-
    sonable plant rules and regulations, establish attendance
    policies and have the right to hire or rehire employees,
    promote employees, to demote or suspend, discipline or
    discharge for just cause, and to transfer or layoff employ-
    ees because of lack of work.
    Also during the course of its analysis about Weyerman’s
    employment status, the compensation court discussed the depo-
    sition testimony of James Brackett, the director of operations
    for Freeman Expositions. In his testimony, Brackett indicated
    that Freeman Expositions supplies all of the work supplies,
    including tables, chairs, pipes, and drapes that union members
    use to set up the trade shows that they manage. Brackett also
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    indicated during his testimony that a large part of Freeman
    Expositions’ business involves coordinating trade shows.
    In addition, the record reflects that Freeman Expositions
    pays union members directly for their work. Freeman
    Expositions also requires each union member to fill out
    new employee paperwork prior to beginning work for it and
    assigns each union member a unique employee number. Lane
    confirmed that Freeman Expositions manages union mem-
    bers who are working on Freeman Expositions’ jobsites and
    controls the work that members complete. Both Lane and
    Weyerman testified that they considered Freeman Expositions
    to be the employer when union members worked on Freeman
    Expositions’ jobsites.
    We recognize that there is conflicting evidence in the
    record regarding Freeman Expositions’ status as Weyerman’s
    employer. The majority of this conflicting evidence comes
    from the deposition testimony of Brackett. Brackett testified
    that Freeman Expositions does not consider union members
    to be its employees. Instead, it considers union members to be
    employees of Local 42. Brackett also testified that the union
    maintained control over which workers were assigned to which
    task and supervised workers who were completing specific
    tasks. However, Brackett also indicated that the instructions
    for what tasks needed to be completed came directly from
    Freeman Expositions’ employees.
    [6] Because the compensation court explicitly found Freeman
    Expositions to be Weyerman’s employer on September 17,
    2015, it clearly found the evidence of Freeman Expositions’
    status as the employer to be more credible than Brackett’s
    testimony to the contrary. And, as the trier of fact, the com-
    pensation court is the sole judge of the credibility of the
    witnesses and the weight to be given their testimony. See
    Swanson v. Park Place Automotive, 
    267 Neb. 133
    , 
    672 N.W.2d 405
    (2003). Given all of the evidence presented regarding
    Weyerman’s employment status and given the compensa-
    tion court’s determination of credibility, we cannot say that
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    the court erred in concluding that Freeman Expositions was
    Weyerman’s employer on September 17. There was evidence
    that Freeman Expositions referred to itself as the “Employer”
    of union members in the collective bargaining agreement it
    signed with Local 42. Freeman Expositions required union
    members to fill out employment paperwork and chose to pay
    union members directly. In addition, there was evidence that
    Freeman Expositions supplied the necessary tools for union
    members to set up trade shows and also controlled the work of
    union members as they completed such work.
    Weyerman’s Employer on
    October 9, 2015
    Freeman Expositions also challenges the compensa-
    tion court’s determination that Complete Payroll was not
    Weyerman’s employer on October 9, 2015, and the court’s
    decision to dismiss Complete Payroll from the case. Upon our
    review, we agree with Freeman Expositions that the compensa-
    tion court incorrectly determined that Complete Payroll was
    not Weyerman’s employer on October 9. However, we also
    determine that the court’s error is harmless.
    In the award, the compensation court specifically found that
    “Complete Payroll Services was not [Weyerman’s] employer
    on October 9, 2015, but, rather, an accounting service.” This
    finding is not supported by the evidence presented at the hear-
    ing. At the hearing, the president of Complete Payroll specifi-
    cally testified that in 2015, union members were considered the
    employees of Complete Payroll when members were working
    on Complete Payroll projects. Everyone who testified agreed
    that when Weyerman was working on October 9, he was work-
    ing a Complete Payroll job, setting up for a concert. In fact,
    the president of Complete Payroll testified that Weyerman
    was a Complete Payroll employee on October 9. We further
    note that Complete Payroll has admitted in its brief on appeal
    that it was Weyerman’s employer on October 9. Based on the
    evidence admitted at trial, the compensation court erred in
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    finding that Complete Payroll was not Weyerman’s employer
    on October 9.
    However, the court’s finding that Complete Payroll was not
    Weyerman’s employer on October 9, 2015, constitutes harm-
    less error. As we discuss in detail in the next section, the com-
    pensation court found that Weyerman’s October 9 injury was
    a recurrence of the September 17 injury and that, as a result,
    Freeman Expositions was liable for the injury. We affirm the
    compensation court’s finding. Because we affirm this finding,
    the identity of Weyerman’s employer on October 9 is irrelevant
    to his workers’ compensation claim. Furthermore, because
    Complete Payroll was not Weyerman’s employer on the date
    of his injury, the compensation court did not err in dismissing
    Complete Payroll from the case.
    Injury on October 9, 2015,
    Was R ecurrence of
    September 17 Injury
    Freeman Expositions asserts that the compensation court
    erred in determining that Weyerman’s back pain on October
    9, 2015, was a recurrence of the September 17 back injury,
    rather than a new and distinct injury. Freeman Expositions’
    argument appears to be based on its contention that if the
    October 9 injury was a new and distinct injury, then Complete
    Payroll, as Weyerman’s employer on that day, would be
    liable to Weyerman instead of Freeman Expositions. Upon
    our review, we conclude that there is sufficient, competent
    evidence in the record to support the compensation court’s
    finding that the October 9 injury was a recurrence of the
    September 17 injury.
    [7,8] When a subsequent injury aggravates a prior injury,
    the insurer at risk at the time of the subsequent injury is
    liable. Miller v. Commercial Contractors Equip., 
    14 Neb. Ct. App. 606
    , 
    711 N.W.2d 893
    (2006). But, if the subsequent injury is a
    recurrence of the prior injury, the insurer at risk at the time of
    the prior injury is liable. 
    Id. A finding
    in regard to causation
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    of an injury is one for determination by the compensation
    court as the finder of fact. 
    Id. In its
    award, the compensation court specifically found
    that Weyerman’s accident on September 17, 2015, was the
    cause of his back injury and that Weyerman’s back pain on
    October 9 was a recurrence of the original injury suffered
    on September 17. In making this finding, the court cited to
    evidence in the record which indicated that Weyerman did
    not ever fully recover from the back injury he suffered on
    September 17. Such evidence included Weyerman’s testi-
    mony that he never improved after the September 17 injury
    and Lane’s testimony that even though Weyerman returned
    to work as a stagehand after September 17, he continued to
    complain about back pain and continued to only be able to
    complete tasks that were considered light duty. Lane testified
    that Weyerman told him that he needed to work, despite his
    back pain, due to financial reasons and that Local 42 accom-
    modated Weyerman’s request.
    There was conflicting evidence presented which suggested
    that Weyerman had fully recovered from the September 17,
    2015, injury. This evidence included medical records from his
    treating physician, which indicated that Weyerman reported
    that about 1 week after the September 17 injury, his symp-
    toms were improving, and that 2 weeks after the injury, his
    symptoms had completely resolved and he was complet-
    ing his regular duties at work. As a result of Weyerman’s
    reports, the treating physician believed that Weyerman had
    reached MMI by October 2. The treating physician released
    Weyerman to return to work. In addition, in medical records
    from a health clinic where Weyerman was seen after expe-
    riencing increased back pain on October 9, it is indicated
    that Weyerman reported that he injured his back 7 days
    prior to his appointment and that he was “not sure” how he
    injured himself.
    In the award, the compensation court specifically found that
    Weyerman’s testimony regarding the continuing pain caused
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    by the September 17, 2015, injury was credible. The court
    indicated that it did not believe that Weyerman was fully
    healed by October 2 and ready to return to work. As we stated
    above, as the trier of fact, the compensation court is the sole
    judge of the credibility of the witnesses and the weight to be
    given their testimony. Swanson v. Park Place Automotive, 
    267 Neb. 133
    , 
    672 N.W.2d 405
    (2003).
    [9] We also note that Donovan provided multiple opinions
    regarding whether the October 9, 2015, injury was a recur-
    rence of the September 17 injury or a new injury. However,
    the compensation court ultimately adopted “Donovan’s medical
    opinion that the accident of September 17, 2015, was the cause
    of [Weyerman’s] complaints and the Court finds anything after
    that date was recurrent to September 17, 2015.” Resolving
    conflicts within a health care provider’s opinion rests with the
    compensation court, as the trier of fact. Damme v. Pike Enters.,
    
    289 Neb. 620
    , 
    856 N.W.2d 422
    (2014).
    Given the compensation court’s determinations about cred-
    ibility and given that there was competent evidence to sup-
    port the court’s decision that the October 9, 2015, injury was
    a recurrence of the September 17 injury, we must affirm the
    decision of the compensation court.
    MMI
    Freeman Expositions also asserts that the compensation
    court erred in determining that Weyerman has not yet reached
    MMI and that, as a result, he is entitled to continuing tempo-
    rary disability payments. Specifically, Freeman Expositions
    argues that there was no medical opinion to support the com-
    pensation court’s finding regarding MMI and that the majority
    of the evidence, including Weyerman’s own testimony, sup-
    ports a determination that Weyerman has reached MMI. Upon
    our review, we conclude that there is sufficient, competent
    evidence in the record to support the compensation court’s
    finding that Weyerman had not reached MMI by the time of
    the hearing.
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    [10] Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a work-
    ers’ compensation claimant may receive permanent or tempo-
    rary 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 ordinarily con-
    tinues 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. [11,12] The
    term “maximum medical improvement” 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 permanent dis-
    ability and concomitant decreased earning capacity 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. Contrary to
    Freeman Expositions’ assertions on appeal, there
    is medical evidence to support the compensation court’s find-
    ing that Weyerman has not yet reached MMI. The independent
    medical examiner conducted an evaluation of Weyerman in
    June 2017, about 6 months prior to the hearing. After the eval-
    uation, he authored a report which reflected his opinion that
    Weyerman had not yet reached MMI. The independent medical
    examiner believed that there were still treatments available to
    try which may help minimize Weyerman’s pain and improve
    his overall function. Such treatments included referrals to a
    pain management clinic and to a chiropractor. There is nothing
    in our record to indicate that Weyerman was able to try these
    treatments prior to the hearing date.
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    We recognize that Donovan provided conflicting medical
    opinions about MMI. Donovan opined that Weyerman had
    reached MMI in June 2016, 1 year prior to Weyerman’s evalu-
    ation with the independent medical examiner. Donovan based
    her medical opinion on Weyerman’s failure to improve after
    receiving pain medication, injection therapy, and physical ther-
    apy. In addition, Donovan noted that Weyerman was not a good
    candidate for surgery.
    [13] However, as we stated above, 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. Damme v. Pike Enters., 
    289 Neb. 620
    , 
    856 N.W.2d 422
    (2014). 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. Because the
    compensation court determined that Weyerman
    had not yet reached MMI, it clearly found the independent
    medical examiner’s medical opinion to be more credible than
    Donovan’s opinion. And, because the compensation court is
    the sole judge of the credibility of medical opinions and there
    was sufficient, competent evidence to support the compensa-
    tion court’s finding, we cannot find clear error in the court’s
    determination that Weyerman had not reached MMI at the time
    of the hearing.
    Future Medical Care
    Freeman Expositions asserts that the compensation court
    erred in awarding Weyerman future medical expenses.
    Specifically, Freeman Expositions argues that none of the med-
    ical providers who examined Weyerman recommended future
    medical care. Upon our review, we conclude that there is suf-
    ficient, competent evidence in the record to support the com-
    pensation court’s award of future medical expenses.
    In the award, the compensation court stated:
    The medical evidence from the physicians in this case
    are that [Weyerman] will require future medical and
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    hospital services and that [Freeman Expositions] should
    continue to provide and pay for such future medical and
    hospital services and treatment as may be reasonably
    necessary as a result of the said accident and injury of
    September 17, 2015.
    The report authored by the independent medical examiner
    supports the compensation court’s award of future medical
    expenses. He opined that Weyerman had not reached MMI yet
    because there were still treatments available to try which may
    help to improve Weyerman’s pain and overall functioning. In
    addition, he opined that it is “reasonable to anticipate future
    medical care that is related to the work injur[y].” Such medi-
    cal care was to include medication management through a pain
    clinic and chiropractic care. Essentially, he expressed optimism
    that, with additional medical treatment, Weyerman’s condition
    would improve.
    Given the independent medical examiner’s opinion that
    Weyerman’s condition could improve with further medical
    treatment, the compensation court did not err in ordering
    Freeman Expositions to pay for any future medical treatment
    related to Weyerman’s back injury.
    CONCLUSION
    We affirm the award entered by the compensation court
    which found that Weyerman had not yet reached MMI and
    which ordered Freeman Expositions, as Weyerman’s employer
    on September 17, 2015, to pay to Weyerman temporary total
    disability payments and future medical expenses.
    A ffirmed.
    

Document Info

Docket Number: A-18-277

Citation Numbers: 26 Neb. Ct. App. 692

Filed Date: 12/18/2018

Precedential Status: Precedential

Modified Date: 12/21/2018