Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/21/2018 09:09 AM CST
- 692 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. 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 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. ____: ____. 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 regarding 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 consideration 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.
- 693 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
7. Workers’ Compensation: Insurance: Liability: Time. When a subsequent 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 recurrence 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 partial 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 medical improvement from a disabling injury and the worker’s permanent
disability and concomitant decreased earning capacity have been determined, 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
- 694 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 temporary 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 finding that it was Weyerman’s employer on the day of his accident; 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 lighting, 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 opportunities, 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
- 695 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 possessed “Management Rights” regarding its workforce:
Subject to the provisions of this Agreement and applicable 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 establish 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 collective bargaining agreement with Freeman Expositions. That
agreement referred to Freeman Expositions as the “employer”
when union members were working on Freeman Expositions’
- 696 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 finished 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 horribly.” 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
- 697 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 diagnosed 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 physician 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 stagehand. 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
- 698 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 physician again. Weyerman reported that he was again experiencing 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 collectively 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 center 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 steroid 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
- 699 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 alleging 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 employment with Complete Payroll.
A hearing was held on Weyerman’s petition in January
2018. At the hearing, the parties presented evidence, including Weyerman’s employment records; the collective bargaining 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 examiner, 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
- 700 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 previously 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 restrictions 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 accident 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 constituted “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
- 701 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 business agent for the local union, as well as [Weyerman’s]
wage records, ongoing pain complaints, and work modifications, 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 accident and the resulting injury.
- 702 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 determining that Complete Payroll was not Weyerman’s employer on
October 9. Third, Freeman Expositions argues that the compensation 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 temporary 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 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 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.
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
- 703 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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. 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 independent 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 relationship; and (10) whether the employer is or is not in business. Jacobson v. Shresta, 21 Neb. 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
- 704 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 opinion, the collective bargaining agreement includes the following provision regarding Freeman Expositions’ “Management
Rights”:
Subject to the provisions of this Agreement and applicable 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 materials, processes, 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.
Also during the course of its analysis about Weyerman’s
employment status, the compensation court discussed the deposition 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
- 705 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 members 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 compensation 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 compensation court’s determination of credibility, we cannot say that
- 706 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 compensation 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 compensation 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 hearing. At the hearing, the president of Complete Payroll specifically 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 working 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
- 707 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 harmless error. As we discuss in detail in the next section, the compensation 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. 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
- 708 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 testimony 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 accommodated 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 symptoms were improving, and that 2 weeks after the injury, his
symptoms had completely resolved and he was completing 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 experiencing 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
- 709 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 recurrence 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 credibility and given that there was competent evidence to support 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 temporary disability payments. Specifically, Freeman Expositions
argues that there was no medical opinion to support the compensation court’s finding regarding MMI and that the majority
of the evidence, including Weyerman’s own testimony, supports 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.
- 710 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
[10] 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 ordinarily 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.
[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 disability 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 finding 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 evaluation, 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.
- 711 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 evaluation with the independent medical examiner. Donovan based
her medical opinion on Weyerman’s failure to improve after
receiving pain medication, injection therapy, and physical therapy. 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 compensation 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 medical providers who examined Weyerman recommended future
medical care. Upon our review, we conclude that there is sufficient, competent evidence in the record to support the compensation 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
- 712 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
WEYERMAN v. FREEMAN EXPOSITIONS
Cite as 26 Neb. App. 692
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 medical 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.
