Wynne v. Menard, Inc. , 299 Neb. 710 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/01/2018 09:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    M achelle Wynne, appellant, v. Menard, Inc., and
    Praetorian Insurance Company, its workers’
    compensation insurance carrier, apepllees.
    ___ N.W.2d ___
    Filed April 20, 2018.    No. S-17-702.
    1.	 Workers’ Compensation: Appeal and Error. A judgment, order, or
    award of the Workers’ Compensation Court may be modified, reversed,
    or set aside only upon the grounds that (1) the compensation court acted
    without or in excess of its powers; (2) the judgment, order, or award was
    procured by fraud; (3) there is not sufficient competent evidence in the
    record to warrant the making of the order, judgment, or award; or (4)
    the findings of fact by the compensation court do not support the order
    or award.
    2.	 ____: ____. On appellate review, the factual findings made by the trial
    judge of the Workers’ Compensation Court have the effect of a jury ver-
    dict and will not be disturbed unless clearly wrong.
    3.	 Pretrial Procedure: Proof: Appeal and Error. Decisions regarding
    discovery are directed to the discretion of the trial court, and will be
    upheld in the absence of an abuse of discretion. The party asserting error
    in a discovery ruling bears the burden of showing that the ruling was an
    abuse of discretion.
    4.	 Summary Judgment. Summary judgment is proper when the pleadings
    and evidence admitted at the hearing disclose that there is no genuine
    issue as to any material fact or as to the ultimate inferences that may be
    drawn from those facts and that the moving party is entitled to judgment
    as a matter of law.
    5.	 Summary Judgment: Proof. A party moving for summary judgment
    has the burden to show that no genuine issue of material fact exists
    and must produce sufficient evidence to demonstrate that it is entitled
    to judgment as a matter of law. If the movant meets this burden, then
    the nonmovant must show the existence of a material issue of fact that
    prevents judgment as a matter of law.
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    6.	 Summary Judgment: Evidence. When the parties’ evidence would
    support reasonable, contrary inferences on the issue for which a movant
    seeks summary judgment, it is an inappropriate remedy.
    7.	 Trial: Evidence. Where reasonable minds could draw different conclu-
    sions from the facts presented, such presents a triable issue of mate-
    rial fact.
    8.	 Summary Judgment. At the summary judgment stage, the trial court
    determines whether the parties are disputing a material issue of fact. It
    does not resolve the factual issues.
    9.	 Summary Judgment: Trial. Summary judgment is an extreme remedy
    and should not be used to deprive a litigant of a formal trial if there is a
    genuine issue of material fact.
    Appeal from the Workers’ Compensation Court: Thomas E.
    Stine, Judge. Reversed and remanded for further proceedings.
    Michael J. Javoronok, of Michael J. Javoronok Law Firm,
    for appellant.
    Todd R. McWha, Terrance O. Waite, and Christopher A.
    Sievers, of Waite, McWha & Heng, for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
    Luther and O’Gorman, District Judges.
    Heavican, C.J.
    INTRODUCTION
    Machelle Wynne suffered knee and shoulder injuries in
    two separate incidents that arose out of her employment with
    Menard, Inc. The Nebraska Workers’ Compensation Court sus-
    tained Wynne’s motion for summary judgment insofar as it
    awarded her benefits for two scheduled injuries, but denied her
    claim that she was permanently and totally disabled. Wynne
    appeals. We reverse, and remand for further proceedings.
    BACKGROUND
    Wynne was employed by Menard and worked at a Menard
    store in Scottsbluff, Nebraska. She was injured on the job on
    two different occasions—a knee injury suffered on September
    25, 2013, and a shoulder injury suffered on July 8, 2014.
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    On August 7, 2015, the Workers’ Compensation Court found
    that Wynne had been injured in the scope and course of
    her employment, that she had not reached maximum medical
    improvement, and that she was entitled to further medical treat-
    ment and temporary total disability payments until maximum
    medical improvement was reached.
    Wynne later had rotator cuff surgery. The surgeon found
    that Wynne had reached maximum medical improvement as of
    October 24, 2016. A functional capacity evaluation (FCE) was
    conducted by Theresa Olson on December 1. The results of
    the FCE noted that Wynne should reach overhead and forward
    only occasionally; should not squat, crawl, or walk on uneven
    surfaces; and should engage in static standing, walking, kneel-
    ing, balancing, and climbing ladders or stairs infrequently. The
    FCE included no restrictions on sitting.
    On February 8, 2017, Dr. Michelle Cheloha, Wynne’s fam-
    ily practice physician, notified Wynne’s attorney via a form
    provided by counsel that Wynne was restricted from sitting
    for more than 10 minutes at one time. The court-appointed
    vocational expert, Ted Stricklett, opined that if Wynne were
    restricted from sitting for more than 10 minutes, she would be
    considered permanently and totally disabled.
    Also in the record is a report from Dr. Douglas Scott, a
    specialist in occupational medicine. Scott opined that Wynne
    could work within her restrictions for 8 hours a day, 5 days
    a week. Scott further opined that Wynne had no spinal injury
    affecting her ability to sit; thus, the sitting restriction imposed
    by Cheloha was not supported by the medical evidence or by a
    reasonable or factual assessment of Wynne’s capability.
    Stricklett later filed an amended report. That report indicated
    that based on Wynne’s FCE and Scott’s opinion, the sitting
    restriction imposed by Cheloha was unfounded.
    During the course of discovery, Wynne served requests
    for admission on Menard. As relevant, those admissions and
    answers provided as follows:
    2. Admit that [Wynne] has permanent restrictions from
    her on the job injuries:
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    a. as set out in Dr. Cheloha’s letter of February 10,
    2017, which is attached as Exhibit “B”;
    b. and as set out in her letter of December 22, 2016,
    which is attached as Exhibit “C”.
    ANSWER: Deny with regarding to Exhibit “B” because
    Dr. Cheloha does not indicate permanent; Admit as set
    forth in Exhibit “C”.
    3. Admit that Dr. Cheloha opines in her letter of
    February 10, 2017, that . . . Wynne is no longer able
    to be gainfully employed.
    ANSWER: Admit.
    ....
    7. Admit that in [his] report of February 16, 2017, . . .
    Stricklett, the vocational rehabilitation counselor, opined
    that [Wynne] had a loss of earning capacity of 100% as
    set out in attached Exhibit “D”.
    ANSWER: Admit.
    Wynne later filed a motion for summary judgment. The
    Workers’ Compensation Court granted the motion as to Wynne’s
    claim that she had reached maximum medical improvement
    and effectively denied the motion as to Wynne’s allegation of
    a 100-percent loss of earning capacity. The court’s order then
    went on to determine the percentage of extremity impairment
    and the amount of permanent disability benefits to which she
    was entitled. Wynne appeals the award.
    ASSIGNMENTS OF ERROR
    On appeal, Wynne assigns, restated and renumbered, that the
    Workers’ Compensation Court erred in (1) ignoring the conclu-
    sive effect of an admission under Neb. Ct. R. Disc. § 6-336(b);
    (2) admitting exhibits 34, 36, 37, and 38; and (3) weighing the
    evidence in a summary judgment motion.
    STANDARD OF REVIEW
    [1] A judgment, order, or award of the Workers’ Compensation
    Court may be modified, reversed, or set aside only upon the
    grounds that (1) the compensation court acted without or in
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    excess of its powers; (2) the judgment, order, or award was
    procured by fraud; (3) there is not sufficient competent evi-
    dence in the record to warrant the making of the order, judg-
    ment, or award; or (4) the findings of fact by the compensation
    court do not support the order or award.1
    [2] On appellate review, the factual findings made by the
    trial judge of the Workers’ Compensation Court have the
    effect of a jury verdict and will not be disturbed unless
    clearly wrong.2
    [3] Decisions regarding discovery are directed to the discre-
    tion of the trial court, and will be upheld in the absence of an
    abuse of discretion.3 The party asserting error in a discovery
    ruling bears the burden of showing that the ruling was an
    abuse of discretion.4
    [4] Summary judgment is proper when the pleadings and
    evidence admitted at the hearing disclose that there is no gen-
    uine issue as to any material fact or as to the ultimate infer-
    ences that may be drawn from those facts and that the moving
    party is entitled to judgment as a matter of law.5
    ANALYSIS
    Effect of Admission.
    Wynne first assigns that Menard admitted, through its
    responses to her requests for admission, that she was perma-
    nently and totally disabled. Menard disagrees, contending it
    admitted that certain experts opined that Wynne was perma-
    nently and totally disabled, but that it did not admit the truth
    of those opinions.
    The requests for admission as drafted by Wynne were
    specific insofar as they sought admissions with respect to
    1
    Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016).
    2
    Anderson v. EMCOR Group, 
    298 Neb. 174
    , 
    903 N.W.2d 29
    (2017).
    3
    Moreno v. City of Gering, 
    293 Neb. 320
    , 
    878 N.W.2d 529
    (2016).
    4
    Id.
    5
    Cookson v. Ramge, ante p. 128, 
    907 N.W.2d 296
    (2018).
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    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    Cheloha’s and Stricklett’s opinions that would lead to the
    conclusion that Wynne was permanently and totally disabled.
    Notably, Wynne sought an admission that Cheloha had opined
    in a letter dated February 10, 2017, that Wynne had permanent
    restrictions due to her on-the-job injuries and was unable to
    be gainfully employed. Wynne further sought an admission
    that Stricklett had opined that Wynne had a 100-percent loss
    of earning capacity. In response, Menard admitted those state-
    ments, but noted that Cheloha did not term Wynne’s restric-
    tions as permanent.
    We reject Wynne’s attempt to characterize Menard’s admis-
    sions as conclusive proof that Wynne was permanently and
    totally disabled. The requests were drafted in such a way that
    an admission was conclusive—not to the truth of the underly-
    ing statement, but only as to the fact that the opinions were
    given as set forth in the requests. There is no merit to Wynne’s
    first assignment of error.
    Grant of Summary Judgment.
    Wynne next assigns that the trial court erred in denying her
    motion for summary judgment as to her allegation that she
    was permanently and totally disabled. Related to this argument
    is Wynne’s contention that the trial court erred in admitting
    exhibits 34, 36, 37, and 38.
    [5] A party moving for summary judgment has the burden
    to show that no genuine issue of material fact exists and must
    produce sufficient evidence to demonstrate that it is entitled to
    judgment as a matter of law. If the movant meets this burden,
    then the nonmovant must show the existence of a material
    issue of fact that prevents judgment as a matter of law.6
    [6-9] When the parties’ evidence would support reasonable,
    contrary inferences on the issue for which a movant seeks
    summary judgment, it is an inappropriate remedy.7 As we
    6
    C.E. v. Prairie Fields Family Medicine, 
    287 Neb. 667
    , 
    844 N.W.2d 56
          (2014).
    7
    
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    have stated many times, where reasonable minds could draw
    different conclusions from the facts presented, such presents a
    triable issue of material fact.8 At the summary judgment stage,
    the trial court determines whether the parties are disputing a
    material issue of fact. It does not resolve the factual issues.9
    Summary judgment is an extreme remedy and should not be
    used to deprive a litigant of a formal trial if there is a genuine
    issue of material fact.10
    This case presents unusual facts. Wynne’s motion did not
    state the basis upon which she sought summary judgment. The
    motion alleged that Wynne “is entitled to a summary judgment
    as a matter of law as to the nature and extent of her injuries
    and her resultant disability.” However, the only basis for such
    a judgment argued at the hearing on the motion was Wynne’s
    theory that she was permanently and totally disabled. Wynne’s
    motion was granted, but on a theory not advanced by Wynne
    at that hearing. Thus, Wynne was the moving party but, as to
    her preferred theory, she was the losing party in that summary
    judgment was not granted finding her to be permanently and
    totally disabled.
    Related to the larger question of the trial court’s dispo-
    sition of her summary judgment motion, Wynne contends
    that certain exhibits containing unsworn statements were inad-
    missible. Specifically, Wynne argues that exhibit 34, a letter
    from Olson, the occupational therapist who conducted Wynne’s
    FCE; exhibit 36, a rebuttal loss of earning capacity report;
    exhibit 37, a letter from Stricklett amending his earlier loss
    of earning capacity report; and exhibit 38, the FCE report, are
    all inadmissible.
    The parties assert that the issue of the admissibility of
    these exhibits presents a conflict between Neb. Rev. Stat.
    § 48-168 (Reissue 2010) and Workers’ Comp. Ct. R. of Proc.
    8
    See id.
    9
    
    Id. 10 Id.
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    10 (2011). Section 48-168(1) provides that the “Nebraska
    Workers’ Compensation Court shall not be bound by the usual
    common-law or statutory rules of evidence or by any technical
    or formal rules of procedure.” Rule 10 discusses this relaxation
    of the rules of evidence and further directs litigants to Neb.
    Rev. Stat. §§ 25-1330 to 25-1336 (Reissue 2016), which pro-
    vide the general procedure to follow when summary judgment
    is sought. Wynne’s argument that the exhibits in question are
    inadmissible is based on § 25-1332, which provides in part
    that “[t]he evidence that may be received on a motion for sum-
    mary judgment includes depositions, answers to interrogato-
    ries, admissions, stipulations, and affidavits.”
    With this background in mind, we turn to Wynne’s conten-
    tions on appeal.
    Wynne offered Cheloha’s and Stricklett’s opinions that
    she was permanently and totally disabled. These opinions
    are reflected in exhibit 31, attachments to Wynne’s requests
    for admissions; exhibit 33, Cheloha’s deposition; and exhibit
    36, Stricklett’s loss of earning capacity report. In response
    to Wynne’s motion, Menard offered exhibits 34 and 38, the
    opinion of Olson, and exhibit 35, the opinion of Scott, as well
    as exhibit 37, the opinion of Stricklett in which he revised
    his opinion in light of the results of Olson’s FCE finding that
    Wynne was not permanently and totally disabled.
    As an initial matter, we note that exhibit 36, Stricklett’s loss
    of earning capacity report, was offered by Wynne, yet that
    exhibit contains unsworn statements which, under Wynne’s
    logic, would be inadmissible.
    But we need not decide the issue of the admissibility of
    these exhibits, because any admission would, on these facts,
    have been harmless. Wynne offered exhibits 31 and 33 in sup-
    port of her contention that she was permanently and totally
    disabled; this evidence was sufficient to meet her burden of
    a prima facie claim for purposes of summary judgment. In
    response, Menard offered an affidavit from Scott acknowl-
    edging his attached report. In that report, Scott opined that
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    WYNNE v. MENARD, INC.
    Cite as 
    299 Neb. 710
    Wynne was not permanently and totally disabled. This was
    sufficient to create a triable issue of material fact and prevent
    judgment as a matter of law.
    In this case, though, the trial court weighed the relative
    merits of this evidence and concluded that Wynne was entitled
    to benefits for her scheduled member injuries, but was not per-
    manently and totally disabled. The court erred in so finding, as
    it is not the role of a court in a summary judgment matter to
    resolve factual disputes.11
    At the summary judgment stage, the trial court determines
    whether the parties are disputing a material issue of fact.
    It does not resolve the factual issues. Summary judgment
    is an extreme remedy and should not be used to deprive
    a litigant of a formal trial if there is a genuine issue of
    material fact.12
    Accordingly, we reverse the grant of summary judgment as
    to the scheduled member injury and the rejection of Wynne’s
    claim of permanent and total disability, and remand the cause
    for further proceedings.
    CONCLUSION
    The compensation court erred in weighing the evidence
    with respect to Wynne’s motion for summary judgment.
    Accordingly, we reverse the entry of summary judgment and
    remand the cause for further proceedings.
    R eversed and remanded for
    further proceedings.
    Funke, J., participating on briefs.
    Wright, J., not participating.
    11
    See 
    id. 12 Id.
    at 
    675, 844 N.W.2d at 63
    .