Stacy v. Great Lakes Agri Mktg.

michAel e. stAcy , AppellAnt , v . greAt lAkes
A gri mArketing , inc ., Appellee .
753 N.W.2d 785
Filed July 25, 2008. 	No. S-07-1000.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185
(Reissue 2004), an appellate court may modify, reverse, or set aside a Workers’
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 com-
pensation court do not support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a judg-
ment of the Workers’ compensation court review panel, a higher appellate court
reviews the findings of fact of the single judge who conducted the original hear-
ing; the findings of fact of the single judge will not be disturbed on appeal unless
clearly wrong.
3. Workers’ Compensation: Expert Witnesses. although medical restrictions or
impairment ratings are relevant to a workers’ compensation claimant’s disability,
the trial judge is not limited to expert testimony to determine the degree of dis-
ability, but instead may rely on the testimony of the claimant.
4. Workers’ Compensation. The test for determining whether a disability is to a
scheduled member or to the body as a whole is the location of the residual impair-
ment, not the situs of the injury.
5. Workers’ Compensation: Proof. In order to recover under the Nebraska Workers’
compensation act, a claimant has the burden of proving by a preponderance of the
evidence that an accident or occupational disease arising out of and occurring in
the course of employment proximately caused an injury which resulted in disability
compensable under the act.
6. Proximate Cause: Words and Phrases. a proximate cause is a cause that pro-
duces a result in a natural and continuous sequence and without which the result
would not have occurred.
7. Workers’ Compensation. In workers’ compensation cases, a distinction must be
observed between causation rules affecting the primary injury and causation rules
that determine how far the range of compensable consequences is carried, once the
primary injury is causally connected with the employment.
8. Workers’ Compensation: Words and Phrases. When the question is whether
compensability should be extended to a subsequent injury or aggravation related in
some way to the primary injury, the rules that come into play are essentially based
upon the concepts of “direct and natural results.”
9. Proximate Cause. a cause of an injury may be a proximate cause, notwithstand-
ing that it acted through successive instruments of a series of events, if the instru-
ments or events were combined in one continuous chain through which the force
of the cause operated to produce the disaster.
236 	276 NeBRaSka RePoRTS
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10. Workers’ Compensation. a determination as to whether an injured worker has
had a loss of earning power is a question of fact to be determined by the Workers’
compensation court.
11. ____. While the inquiry into loss of earning power includes an employee’s abil-
ity to obtain employment generally, neither the single judge of the Workers’
compensation court nor the vocational rehabilitation specialist should be expected
to disregard a job that an employee actually has.
12. ____. Permanent total disability benefits are not generally available for a single
scheduled member injury.
13. Workers’ Compensation: Time. The date of maximum medical improvement for
purposes of ending a workers’ compensation claimant’s temporary disability is the
date upon which the claimant has attained maximum medical recovery from all of
the injuries sustained in a particular compensable accident.
14. ____: ____. a workers’ compensation claimant has not reached maximum medical
improvement until all the injuries resulting from an accident have reached maxi-
mum medical healing.
15. Workers’ Compensation. Generally, whether a workers’ compensation claimant
has reached maximum medical improvement is a question of fact.
16. ____. vocational rehabilitation benefits are properly awarded when an injured
employee is unable to return to the work for which he or she has previous training
or experience.
17. ____. Whether an injured worker is entitled to vocational rehabilitation is ordinar-
ily a question of fact to be determined by the Workers’ compensation court.
18. ____. vocational rehabilitation training that could lead to employment in another
career field is not available, pursuant to Neb. Rev. Stat. § 48-162.01(3) (cum.
Supp. 2006), unless a new job with the same employer is unlikely to result in suit-
able employment for the injured employee.
19. Workers’ Compensation: Penalties and Forfeitures. To avoid the penalty pro-
vided for in Neb. Rev. Stat. § 48-125 (cum. Supp. 2006), an employer need not
prevail in the employee’s claim—it simply must have an actual basis in law or fact
for disputing the claim and refusing compensation.
20. Workers’ Compensation: Claims. a reasonable controversy under Neb. Rev.
Stat. § 48-125 (cum. Supp. 2006) may exist if the properly adduced evidence
would support reasonable but opposite conclusions by the Workers’ compensation
court concerning an aspect of an employee’s claim for workers’ compensation,
which conclusions affect allowance or rejection of an employee’s claim, in whole
or in part.
21. Workers’ Compensation: Attorney Fees. Whether a reasonable controversy exists
under Neb. Rev. Stat. § 48-125 (cum. Supp. 2006) is a question of fact.
22. ____: ____. If an employee files an application for a review before the compensa-
tion court of an award by a judge of the compensation court when the amount of
compensation due is disputed, and obtains an increase in the amount of such award,
the compensation court may allow the employee a reasonable attorney fee to be
taxed as costs against the employer for such review.
STacY v. GReaT LakeS aGRI mkTG. 	237
cite as 276 Neb. 236

23. Workers’ Compensation. Where the issue of a credit against the award is not
decided by the single judge of the Workers’ compensation court, the defendant is
still entitled to receive credit for payments already made.
appeal from the Workers’ compensation court. affirmed.
Jeffry 	D. 	Patterson, 	of 	Bartle 	& 	Geier 	Law 	Firm, 	for
appellant.
D. Steven Leininger and Sonya k. koperski, of Leininger,
Smith, Johnson, Baack, Placzek & allen, for appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.
gerrArd, J.
michael 	e. 	Stacy 	was 	employed 	by 	Great 	Lakes agri
marketing, Inc., doing business as Bridgeport Tractor, when
he sustained an injury in the course of and arising out of his
employment. Specifically, Stacy was removing a part from a
tractor when a piece of metal struck him near the right knee,
causing a nondisplaced fracture of his medial condyle. Stacy
developed deep vein thrombosis in his right leg, and it is not
disputed that Stacy requires anticoagulation therapy for the
foreseeable future. The primary issue presented in this workers’
compensation appeal is whether the diagnosis of a complex pain
disorder in Stacy’s right leg, or his need to take anticoagulant
medications, has resulted in an injury to his body as a whole
instead of to a scheduled member. Because the evidence is suf-
ficient to support the Workers’ compensation court’s finding of
a scheduled member injury, we affirm its judgment.
BackGRouND
stAcy ’ s work history
Stacy graduated from high school in 1983 and joined the
marine corps. He served 4 years as a combat engineer, doing
construction work and demolitions. after he was honorably
discharged, Stacy and his wife had a flooring business in
chadron, Nebraska, installing carpet, tile, vinyl, and lami-
nate flooring.
238 	276 NeBRaSka RePoRTS

Stacy and his wife moved to the area of Bridgeport, Nebraska,
in January 2004 and planned to continue in the flooring business.
But they needed additional income, so Stacy obtained the job at
which he was injured. Stacy’s primary duties involved removing
tractor parts and cleaning them for resale. Stacy was injured on
July 21 while using a sledge hammer to remove a broken axle,
when a piece of metal flew off the tractor and hit him in the leg
below the right knee.
medicAl evidence
about 3 weeks after the accident, Stacy was still suffering
from swelling in his right leg. He was admitted to the hospi-
tal, and blood clotting was discovered, which was treated with
heparin, coumadin, and compression hose. In September 2004,
Stacy began to suffer from “hypersensitivity” in his leg. Stacy
testified that
[b]efore it was just the swelling and kind of stiffness and
that, and it — it started getting so it was like needles. I
don’t know how to really explain it, what I’ve tried to say
before is, like when you’ve been out in the cold and your
hands get really, really cold out in the wintertime and you
come inside and stick your hands under hot water, that
instant — feels like a bunch of little needles stickin’ in
your leg. and that’s what my leg started to feel like.
In late September 2004, Stacy’s treating orthopedic surgeon,
Dr. Bryan Scheer, diagnosed Stacy with reflex sympathetic dys-
trophy (RSD), which can be briefly described as an excessive or
abnormal response of the sympathetic nervous system following
an injury.1 on october 27, Scheer released Stacy to sedentary
work, but not to drive, stand on the job, or “other activity.”
Stacy was evaluated at the mayo clinic vascular center in
January 2005 by Dr. mark costopoulos. costopoulos found
evidence of both chronic and acute deep vein thrombosis in the
right leg and, at the least, postphlebitic syndrome in the right
leg. costopoulos prescribed prescription-strength compression
hose and continued coumadin anticoagulation therapy. and
1 See, generally, Taber’s cyclopedic medical Dictionary (18th ed. 1997); The
merck manual of Diagnosis and Therapy (16th ed. 1992).
STacY v. GReaT LakeS aGRI mkTG. 	239
cite as 276 Neb. 236

costopoulos concluded that Stacy “will need lifelong coumadin
anticoagulation for this problem for as long as he can take the
medication relatively safely and reliably.” costopoulos noted
that workers’ compensation case evaluations were not performed
at the mayo clinic, so Stacy’s “return to work evaluation” was
deferred to Stacy’s primary care physician and workers’ com-
pensation insurer.
Back in Nebraska, on June 27, 2005, Scheer observed “an
atrophic leg that is very dysthetic and painful.” Scheer also
observed “some skin color changes” and that Stacy’s calf was
“tender and very small when compared to the opposite side.”
Scheer reported that Stacy and his wife asked Scheer to con-
sider amputation of Stacy’s right leg. Scheer encouraged pain
management techniques, but concluded Stacy’s prognosis was
“poor.” Scheer “withheld any issues regarding [maximum medi-
cal improvement] at this point.” In august 2005, Scheer directed
Stacy to remain off work until further notice, based on a repre-
sentation from either Stacy or Stacy’s wife that Stacy was physi-
cally unable to work.
Dr. Bruce Lockwood evaluated Stacy in September 2005.
Lockwood is board certified in physical medicine and rehabili-
tation, and in electrodiagnostic medicine. after the September
examination, Lockwood did not believe Stacy was at maxi-
mum medical improvement, although “ascertaining that time
is exceedingly difficult.” Lockwood testified that “a reasonable
diagnosis at the time would have been a tibial nerve injury
causing the innervation in the muscles that it innervated.”
Lockwood thought there was “probably” also a perineal nerve
injury, and Lockwood thought “there was an issue address-
ing, which wasn’t firm in [Lockwood’s] mind, whether or not
[Stacy] had cRPS type I or RSD.” Lockwood explained that
cRPS was “chronic regional pain syndrome” and that cRPS
type I described, essentially, RSD. But Lockwood did not final-
ize that diagnosis. Lockwood also noted a deep vein thrombosis
in Stacy’s right leg, with probable postphlebitic syndrome, and
said Stacy would need anticoagulation treatment for the foresee-
able future.
at a followup discussion on November 16, 2005, Lockwood
discussed with Stacy, “very candidly,” that Lockwood had
240 	276 NeBRaSka RePoRTS

concerns about noncompliant behavior. Lockwood did not con-
duct another physical examination. Lockwood’s notes indicate
that Stacy was resistant to an electromyogram because Stacy’s
previous electromyogram, at the mayo clinic, had been painful.
Lockwood was unable to contact Stacy after November 16 and
pronounced him at maximum medical improvement. Lockwood
concluded Stacy was being noncompliant and stated that “[i]n
light of what would appear to be consistent and repeated
noncompliant behavior, it would appear as though he is at
maximum medical improvement, based on the information made
available to [Lockwood].” Lockwood also assigned an impair-
ment rating, based on an RSD diagnosis, of 9-percent impair-
ment to the body as a whole. But Lockwood altered that rating
in response to a request from Stacy’s case manager. Lockwood
noted, in his letter to the case manager, that “[i]t would appear
as though [the case manager is] asking [Lockwood] to convert
the 9% whole person impairment to an extremity impairment.”
He converted the rating to a 22- or 23-percent lower extrem-
ity impairment.
Lockwood testified that there was no indication Stacy’s acci-
dent resulted in physical injury other than to his right leg and
that “[w]ith reluctance,” he had given Stacy an impairment
rating. Lockwood later withdrew his impairment rating at his
deposition, because although he “was asked to do it” and gave
his best effort, he did not “think that’s reasonable to stand by.”
Lockwood testified that there was no physical injury to Stacy’s
body other than to his right leg and that he was not “comfort-
able” diagnosing Stacy with a physical injury to his sympathetic
nervous system. However, Lockwood opined that if Stacy had
a “sympathetic or an RSD situation,” such an injury would be
classified as an extremity injury.
on December 2, 2005, Scheer wrote Bridgeport Tractor’s
workers’ compensation insurer, stating that Stacy “is request-
ing he be placed at [maximum medical improvement] which
I think is reasonable.” In a letter dated December 29, 2005,
Scheer opined that Stacy’s deep vein thrombosis, “his chronic
lower extremity pain, his complex regional pain syndrome, and
his medial condyle fracture are, within a reasonable degree of
medical certainty, related to his injury.” Scheer opined that Stacy
STacY v. GReaT LakeS aGRI mkTG. 	241
cite as 276 Neb. 236

would need future medical care for chronic pain and the poor
function of his right leg. Scheer rated Stacy’s right leg as 100-
percent impaired and opined that although it would be difficult
to assess Stacy’s permanent work restrictions, Scheer thought
Stacy would
have little use of his right lower extremity, including vigor-
ous labor, heavy lifting, ladders, etc., but he should be able
to be retrained in another profession. also, his anticoagula-
tion therapy and his weakness would limit it, as well as his
pain syndrome may limit his employment opportunities.
on December 22, 2005, Bridgeport Tractor’s workers’ com-
pensation insurer had informed Stacy, through Stacy’s counsel,
that Stacy had been placed at maximum medical improvement
by Lockwood, with a 22- to 23-percent impairment of the right
lower extremity. a final lump-sum payment for permanent par-
tial disability was made on that basis.
on July 20, 2006, Scheer opined that
transient sedentary activity without prolonged standing
or prolonged sitting is warranted. certainly, he has a
functional left lower extremity, bilateral upper extrem-
ity and I think he is a very bright man who could be
vocationally rehabilitated to do many tasks, but labor,
heavy lifting, squatting, bending, ladders, repetitive activ-
ity, prolonged standing, prolong [sic] sitting and others
will likely have to be avoided for the foreseeable future if
not permanently.
Scheer had “no doubt” about the diagnosis of RSD.
Dr. Lawrence Lesnak, a colorado physician, board certified in
physical medicine and rehabilitation, examined Stacy on august
23, 2006. Lesnak found medical evidence to suggest deep vein
thrombosis and postphlebitic syndrome in Stacy’s right leg.
Lesnak found “no indication whatsoever” that Stacy had RSD,
also known as cRPS type I. Instead, Lesnak diagnosed Stacy
with causalgia, also known as cRPS type II. causalgia is briefly
described as intense burning pain accompanied by trophic skin
changes, due to injury of nerve fibers.2 Lesnak opined that
2 See, generally, Taber’s cyclopedic medical Dictionary, supra note 1; The
merck manual of Diagnosis and Therapy, supra note 1.
242 	276 NeBRaSka RePoRTS

Stacy’s symptoms were not “sympathetically mediated” and
“in all likelihood are something strictly from this post phlebitic
syndrome.” Lesnak found that Stacy was at maximum medical
improvement and assigned a 20-percent lower extremity impair-
ment. Lesnak found no condition that involved Stacy’s body as
a whole, or any extremities other than his right leg.
When asked whether he disagreed that Stacy would require
lifetime anticoagulation therapy, Lesnak said that it was “not
a typical recommendation for someone who has had a sin-
gle episode of deep venous thrombosis.” But Lesnak did not
have an opinion on whether lifetime anticoagulation therapy
was required. Lesnak’s impairment rating for Stacy’s leg did
not include causalgia or lifetime coumadin treatment, because
Lesnak concluded that “the post phlebitic syndrome was the
ratable condition, not the causalgia.” Lesnak conceded that
revised american medical association guidelines might provide
a basis for a “rating in and of itself for anticoagulation.” But
Lesnak believed that “if you rate post phlebitic syndrome, then
you’re basically double dipping if you rate coumadin usage.”
Lesnak conceded that if Stacy continues on coumadin treat-
ment, he would need to avoid occupations that involved trauma
to the body.
Stacy testified at trial that he still felt constant pain in his
right leg and a shooting pain when he put weight on his right
foot. Stacy explained that he could not squat, lift, or kneel with
his right leg. He said that his walking pace had slowed consid-
erably, he was unable to walk over rough surfaces, and he had
difficulty even on smooth surfaces. Stacy said he could not get
up without using a cane and could climb stairs only with a cane
and handrail.
vocAtionAl evidence
In November 2004, Stacy and David DeFoe, Bridgeport
Tractor’s store manager, began discussing the possibility of
Stacy’s returning to work. DeFoe told Stacy that transportation
would be arranged for him. Stacy said he was told he would be
assigned to use a computer to make “a map of the tractor place.
of where the tractors and parts were, in what area.” Stacy said
he was told that nothing else was planned and that he “could sit
STacY v. GReaT LakeS aGRI mkTG. 	243
cite as 276 Neb. 236

back on the couch and read a book or whatever.” But Stacy testi-
fied that he was unable to return to work at that time.
DeFoe described the job as researching part numbers and
proofreading a catalog that the company was preparing to print.
DeFoe said that at the time, the position did not exist, but there
had been previous discussion in the management group about
creating a full-time position to do the research. DeFoe said the
job was needed by the company and still was needed at the time
of trial. and in November 2005, Stacy was offered a job that
DeFoe said was essentially the same job, but expanded beyond
the catalog to encompass the company’s entire inventory of used
parts. The job was being held for Stacy and, in the meantime,
had been filled with other employees at different stores.
Stacy testified that before his injury, his intent had been to
work at Bridgeport Tractor only until he could get his flooring
business reestablished. But after his injury, he could no longer
perform the physical tasks that would be required in the floor-
ing business, because he could no longer lift or kneel, or work
with knives because of his anticoagulant regimen. Stacy said he
would like to get back into the work force, but needed profes-
sional help because he could no longer do the kind of work he
had done before.
Stacy testified that he had no computer training or experience,
except that he had a computer at home that he used to “play
Solitaire” and read e-mail. In Stacy and his wife’s flooring busi-
ness, Stacy’s wife had used a computer for bookkeeping, but
Stacy did not use the computer. Stacy also testified that he did
not like computers and did not want to work with a computer.
He explained, “I like to do things, where I can see something
accomplished. I can’t — I can’t comprehend sittin’ there at a
computer all day long . . . .” He testified that he had been doing
manual labor his whole life and did not “want to go to work
and be miserable” every day at a job he hated. Stacy said he
wanted a job he thought he could succeed at and did not believe
he could succeed at the jobs recommended to him by his voca-
tional counselors.
Laren Roper, an occupational therapist, testified regarding
a jobsite evaluation he performed in November 2004. Roper
opined, based on his examination of the Bridgeport Tractor
244 	276 NeBRaSka RePoRTS

jobsite and his understanding of Stacy’s physical restrictions,
that Stacy could return to work and perform the duties of the
computer job offered by Bridgeport Tractor. But Roper con-
ceded that he was not a vocational specialist and did not deter-
mine whether the job was suitable for Stacy based on Stacy’s
education and aptitude.
Ronald Schmidt, the Workers’ compensation court-appointed
vocational rehabilitation counselor, evaluated Stacy’s loss of
earning power. Schmidt considered Stacy’s work restrictions and
surveyed the relevant labor market, but “was unable to identify
any employment opportunities in . . . Stacy’s geographic area
that were consistent with not only the physical limitations but
his education and vocational background.” Schmidt concluded
that Stacy’s on-the-job injury “eliminated [his] earning capac-
ity.” Schmidt did not evaluate Stacy’s candidacy for vocational
rehabilitation because he concluded, as he had explained in a
previous letter, that due to the job offered by Bridgeport Tractor,
“the development of a vocational rehabilitation plan is not indi-
cated at this time.”
a rebuttal loss of earning power analysis was completed
by Patricia conway, a rehabilitation specialist, on September
27, 2006. conway found that Stacy could perform sedentary
jobs and had suffered a 50-percent loss of earning power.
conway recommended that Stacy either accept the job offered
by Bridgeport Tractor or participate in appropriate vocational
rehabilitation services. However, conway noted that because
Stacy “had been offered a physically appropriate job with the
employer of injury, . . . it would appear that he is not entitled to
vocational rehabilitation services.”
compensAtion court proceedings
Trial 	was 	had 	before 	a 	single 	judge 	of 	the 	Workers’
compensation court in october 2006. The single judge, rely-
ing on Lockwood’s opinion, found that Stacy was temporarily
totally disabled from the date of the accident until reaching
maximum medical improvement on January 20, 2005. The
single judge found that Stacy’s RSD affected his leg, producing
a scheduled member injury, and that “[w]ith respect to the anti-
coagulation therapy, the court is not persuaded that it produces
STacY v. GReaT LakeS aGRI mkTG. 	245
cite as 276 Neb. 236

any limitations in [Stacy] not already produced by the permanent
impairment to [Stacy’s] right leg.” The single judge agreed with
Scheer that Stacy’s right leg was totally impaired.
But the single judge found that because of the available job
with Bridgeport Tractor, Stacy was not entitled to vocational
rehabilitation benefits. The single judge did find that Stacy was
entitled to future medical care as was reasonable and neces-
sary to treat his injury. and finally, the single judge awarded
waiting-time fees based on Bridgeport Tractor’s failure to pay
benefits for approximately 6 weeks after the injury. But the
court found a reasonable controversy to have existed with
respect to the extent of Stacy’s permanent impairment after
his date of maximum medical improvement and did not award
waiting-time penalties or an attorney fee for that period. The
single judge awarded compensation for temporary total dis-
ability, and then for 100-percent permanent loss of a scheduled
member, the right leg.
Stacy filed an application for review. The review panel found
that the single judge’s finding that Stacy suffered a scheduled
member injury to his right leg was not clearly erroneous. The
review panel found little evidence in the record to suggest that
Stacy suffered whole-body consequences from deep vein throm-
bosis or RSD. The review panel affirmed the single judge’s
finding of the date of maximum medical improvement. and the
review panel affirmed the single judge’s refusal to award voca-
tional rehabilitation benefits. Finally, the review panel affirmed
the single judge’s finding of a reasonable controversy regarding
the extent of Stacy’s permanent impairment. Stacy appeals.
aSSIGNmeNTS oF eRRoR
Stacy assigns, restated, that the Workers’ compensation court
erred in (1) refusing to award permanent disability benefits based
on injury to the body as a whole, (2) failing to find that Stacy is
entitled to permanent total disability benefits as a matter of law,
(3) finding that Stacy reached maximum medical improvement
on January 20, 2005, (4) not awarding vocational rehabilita-
tion benefits, (5) finding a reasonable controversy regarding
the extent of Stacy’s permanent impairment, and (6) refusing to
award an attorney fee on review.
246 	276 NeBRaSka RePoRTS

STaNDaRD oF RevIeW
[1,2] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2004),
an appellate court may modify, reverse, or set aside a Workers’
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 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.3 In
determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ compensation court review panel,
a higher appellate court reviews the findings of fact of the
single judge who conducted the original hearing; the findings of
fact of the single judge will not be disturbed on appeal unless
clearly wrong.4
aNaLYSIS
inJury to body As A whole
In support of his first assignment of error, Stacy argues that
his diagnosed medical conditions—deep vein thrombosis and
RSD—should have been found by the compensation court to
result in injury to his body as a whole. Stacy argues that although
his initial injury was to a scheduled member, the resulting condi-
tions impair his body as a whole. But the medical evidence in
the record does not support Stacy’s argument.
[3] Stacy begins by arguing, based on the medical evidence
and his own testimony, that his deep vein thrombosis affected his
entire circulatory system, not just his right leg. although medi-
cal restrictions or impairment ratings are relevant to a workers’
compensation claimant’s disability, the trial judge is not limited
to expert testimony to determine the degree of disability, but
instead may rely on the testimony of the claimant.5 But here,
none of the medical experts whose testimony was presented to
the single judge opined that Stacy had suffered a whole body
3 Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).
4 Vega v. Iowa Beef Processors, 270 Neb. 255, 699 N.W.2d 407 (2005).
5 See Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125
(2002).
STacY v. GReaT LakeS aGRI mkTG. 	247
cite as 276 Neb. 236

impairment. Nor did Stacy’s own testimony establish any whole
body impairment caused by his deep vein thrombosis.
[4] The test for determining whether a disability is to a
scheduled member or to the body as a whole is the location
of the residual impairment, not the situs of the injury.6 In the
absence of evidence establishing that Stacy’s deep vein throm-
bosis caused impairment to the body as a whole, we cannot
say that it was clearly wrong for the single judge to find that
Stacy’s deep vein thrombosis was compensable as an aspect of
his scheduled member injury.7
Stacy calls particular attention to his need for anticoagulant
therapy and argues that the effect of his anticoagulant regimen
is, in effect, a whole body impairment. He argues that “acquired
thrombotic disorder,” resulting from anticoagulant therapy, is a
diagnosable condition.8 That may be, but there is no evidence
establishing that diagnosis here, or any resulting impairment of
Stacy’s body as a whole.
[5-7] In order to recover under the Nebraska Workers’
compensation act,9 a claimant has the burden of proving by a
preponderance of the evidence that an accident or occupational
disease arising out of and occurring in the course of employ-
ment proximately caused an injury which resulted in disability
compensable under the act.10 a proximate cause is a cause that
produces a result in a natural and continuous sequence and
without which the result would not have occurred.11 In workers’
compensation cases, a distinction must be observed between
causation rules affecting the primary injury and causation rules
that determine how far the range of compensable consequences
6 Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233
(1999).
7 See id.
8 Brief for appellant at 20.
9 Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2004, cum. Supp. 2006 &
Supp. 2007).
10 Sweeney v. Kerstens & Lee, Inc., 268 Neb. 752, 688 N.W.2d 350 (2004).
11 Id.
248 	276 NeBRaSka RePoRTS

is carried, once the primary injury is causally connected with
the employment.12
[8,9] When the question is whether compensability should
be extended to a subsequent injury or aggravation related in
some way to the primary injury, the rules that come into play
are essentially based upon the concepts of “direct and natural
results.”13 a cause of an injury may be a proximate cause, not-
withstanding that it acted through successive instruments of a
series of events, if the instruments or events were combined in
one continuous chain through which the force of the cause oper-
ated to produce the disaster.14
We recognize that several courts have, in determining the
extent of a claimant’s impairment and disability, considered the
effects of medication necessary to treat a compensable condi-
tion.15 There is no reason, under the causation principles set
forth above, why the effects of medical treatment could not be a
direct and natural result of a compensable injury. But the record
before us in this case does not evidence any such effects, to the
extent necessary to establish as a matter of law that Stacy has
suffered a whole body impairment. as the single judge noted,
the requirement that Stacy avoid a risk of trauma is subsumed in
the other work restrictions imposed by his deep vein thrombosis
and RSD. and more importantly, neither the medical testimony
nor Stacy’s own testimony established an impairment to the
body as a whole.
Stacy next argues that his RSD is a disease of the entire ner-
vous system, not just his right leg. He contends that “both of
[Bridgeport Tractor’s] experts agreed that [RSD] is a condition
impairing the sympathetic nervous system.”16 But the expert
12 Id.
13 Id.
14 Id.
15 See, e.g., Anderson v. Harper’s Inc., 143 Idaho 193, 141 P.3d 1062 (2006);
Averill v. Dreher-Holloway, 134 N.H. 469, 593 a.2d 1149 (1991); Flannery
v. Nassau County Police Dept., 26 a.D.3d 678, 809 N.Y.S.2d 652 (2006);
Hulshouser v. Texas Workers Comp. Ins. Fund, 139 S.W.3d 789 (Tex. app.
2004).
16 Brief for appellant at 22.
STacY v. GReaT LakeS aGRI mkTG. 	249
cite as 276 Neb. 236

testimony presented to the single judge does not support that
construction. While Lockwood testified that RSD can spread,
there was no evidence that Stacy’s RSD has actually impaired
any part of his body other than his right leg. courts in other
jurisdictions have found evidence, in some cases, that RSD has
caused impairment to a claimant’s body as a whole.17 But such
decisions have been based on evidence showing that those claim-
ants’ RSD had spread beyond a particular scheduled member.18
None of that authority supports Stacy’s contention that RSD, as
a matter of law, necessarily produces whole body impairment.
and the evidence adduced here does not prove, as a matter of
law, that Stacy suffers from whole body impairment.
The medical conditions affecting Stacy are complex and may
involve “injury” to his circulatory and central nervous systems,
but, as previously noted, it is the location of the impairment, not
the injury, that determines whether a claimant’s impairment is to
a scheduled member or to the body as a whole.19 and while the
basic principles of causation on which Stacy relies are sound,
the evidence here is sufficient to support the single judge’s deter-
mination that Stacy’s deep vein thrombosis and RSD resulted in
impairment only to a scheduled member. Stacy’s first assign-
ment of error is without merit.
permAnent totAl disAbility benefits
[10] In his second assignment of error, Stacy contends that he
was entitled to permanent total disability benefits as a matter of
law. a determination as to whether an injured worker has had
a loss of earning power is a question of fact to be determined
by the Workers’ compensation court.20 Stacy takes issue with
conway’s and Schmidt’s assessments of Stacy’s loss of earning
17 See, Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961);
Collins v. Department of Human Services, 529 N.W.2d 627 (Iowa app.
1995); So. Farm Bureau Cas. v. Aguirre, 690 S.W.2d 672 (Tex. app.
1985).
18 See id.
19 See Ideen, supra note 6.
20 Hagelstein v. Swift-Eckrich, 261 Neb. 305, 622 N.W.2d 663 (2001).
250 	276 NeBRaSka RePoRTS

capacity, because those opinions were based, in part, on the
availability of a job for Stacy at Bridgeport Tractor.
[11] This argument does not succeed for two reasons. First, it
was not incorrect to consider the availability of a job at Bridgeport
Tractor in evaluating Stacy’s loss of earning power. While the
inquiry into loss of earning power includes an employee’s ability
to obtain employment generally, neither the single judge nor the
vocational rehabilitation specialist should be expected to disre-
gard a job that an employee actually has.21 and there is no sug-
gestion, in the record or Stacy’s brief, that Bridgeport Tractor’s
offer of employment is not genuine.
[12] But more importantly, Stacy’s claim for permanent total
disability benefits is dependent on the argument, which we
rejected above, that Stacy suffered an injury to the body as a
whole. Permanent total disability benefits are not generally
available for a single scheduled member injury.22 and as dis-
cussed above, the record does not establish that the injury to
Stacy’s right leg resulted in an unusual or extraordinary condi-
tion as to other members or other parts of the body.23 Therefore,
Stacy’s second assignment of error is also without merit.
dAte of mAximum medicAl improvement
[13-15] Stacy argues that the single judge erred in relying on
Lockwood’s testimony to set Stacy’s date of maximum medi-
cal improvement as January 20, 2005. The date of maximum
medical improvement for purposes of ending a workers’ com-
pensation claimant’s temporary disability is the date upon which
the claimant has attained maximum medical recovery from all
of the injuries sustained in a particular compensable accident.
a claimant has not reached maximum medical improvement
until all the injuries resulting from an accident have reached
maximum medical healing.24 and generally, whether a workers’
21 See Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683, 696 N.W.2d 142
(2005).
22 See § 48-121(3).
23 See Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003).
24 Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232
(2005).
STacY v. GReaT LakeS aGRI mkTG. 	251
cite as 276 Neb. 236

compensation claimant has reached maximum medical improve-
ment is a question of fact.25
Stacy notes that after examining him in September 2005,
Lockwood was unable to conclude that he was at maximum
medical improvement. But in his November medical report,
Lockwood clearly articulated the basis for his conclusion that
Stacy had reached maximum medical improvement on January
20. Lockwood explained that “[t]o specifically ascertain an
appropriate date of maximum medical improvement is very dif-
ficult, but it would appear as though over the last approximately
10 months his care has been supportive care, i.e., maintenance
care. Thus, a reasonable date in hindsight of maximum medical
improvement would be January 20, 2005.” Lockwood acknowl-
edged that “this is a difficult calculation to make, but again,
based on the information made available to me, this would
appear to be appropriate.”
Stacy notes that Scheer disagreed with Lockwood’s opinion.
But Lockwood explained the basis for his opinion, and the
single judge is entitled to accept the opinion of one expert over
another.26 Stacy did not present evidence of any meaningful
change in his condition that occurred after January 20, 2005.
We cannot say the single judge was clearly wrong in finding
that Stacy had reached maximum medical healing on that date.
Therefore, we find no merit to Stacy’s third assigned error.
vocAtionAl rehAbilitAtion benefits
[16,17] vocational rehabilitation benefits are properly awarded
when an injured employee is unable to return to the work for
which he or she has previous training or experience.27 Whether
an injured worker is entitled to vocational rehabilitation is
ordinarily a question of fact to be determined by the Workers’
compensation court.28 Stacy contends that despite the available
25 Id.
26 Lowe, supra note 3.
27 Hagelstein, supra note 20.
28 Willuhn v. Omaha Box Co., 240 Neb. 571, 483 N.W.2d 130 (1992). See,
also, Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002);
Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).
252 	276 NeBRaSka RePoRTS

job at Bridgeport Tractor, he should have been awarded voca-
tional rehabilitation benefits.
But both of the vocational rehabilitation specialists whose
opinions were presented to the single judge opined that because
of the Bridgeport Tractor job, vocational rehabilitation services
were not warranted.29 and more importantly, Stacy’s argument
is inconsistent with the priorities that the Nebraska Workers’
compensation act directs the Workers’ compensation court
to use in developing and evaluating a vocational rehabilita-
tion plan. Those priorities are, listed in order from lower to
higher priority:
(a) Return to the previous job with the same employer;
(b) modification of the previous job with the same
employer;
(c) a new job with the same employer;
(d) a job with a new employer; or
(e) a period of formal training which is designed to lead
to employment in another career field.30
No higher priority may be utilized “unless all lower priorities
have been determined by the vocational rehabilitation coun-
selor and a vocational rehabilitation specialist or judge of the
compensation court to be unlikely to result in suitable employ-
ment for the injured employee that is consistent with the priori-
ties listed.”31
[18] Stacy is seeking vocational rehabilitation training that
could lead him to employment in another career field. The
record demonstrates that Stacy is unable to perform his previous
job with Bridgeport Tractor, even if it were modified. But the
record also demonstrates that a new job at Bridgeport Tractor is
available to Stacy. There is nothing in the record to suggest that
Bridgeport Tractor’s offer of employment is insincere. and the
training Stacy seeks is not available, pursuant to § 48-162.01(3),
unless “[a] new job with the same employer” is “unlikely
29 cf. Davis, supra note 21.
30 § 48-162.01(3).
31 Id.
STacY v. GReaT LakeS aGRI mkTG. 	253
cite as 276 Neb. 236

to result in suitable employment for the injured employee.”32
Stacy’s frustration with his employment opportunities and medi-
cal condition is apparent from the record, and completely under-
standable. But it is clear from the medical evidence that no
amount of vocational rehabilitation can enable Stacy to perform
the kind of work he enjoyed before his accident. and while the
job available at Bridgeport Tractor may not seem ideal, Stacy is
physically capable of performing it, and the Nebraska Workers’
compensation act establishes priorities for postinjury employ-
ment that neither this court nor the Workers’ compensation
court are at liberty to ignore.
When the requirements of § 48-162.01(3) are considered, the
record supports the single judge’s finding that because a new
job with Bridgeport Tractor was available to Stacy, further voca-
tional rehabilitation services were not warranted. Stacy’s fourth
assignment of error is without merit.
reAsonAble controversy
Stacy contends that the single judge erred in finding a rea-
sonable controversy regarding the extent of Stacy’s perma-
nent impairment. Stacy complained to the single judge about
Bridgeport Tractor’s failure to pay indemnity benefits between
December 22, 2005, and July 27, 2006. Stacy contends that
there was no reasonable controversy regarding his entitlement to
benefits, because the medical opinions upon which Bridgeport
Tractor relied were flawed. and § 48-125 authorizes a 50-percent
penalty payment for waiting time involving delinquent payment
of compensation and an attorney fee, where there is no reason-
able controversy regarding an employee’s claim for workers’
compensation benefits.33
[19-21] But to avoid the penalty provided for in § 48-125,
an employer need not prevail in the employee’s claim—it sim-
ply must have an actual basis in law or fact for disputing the
32 Id.
33 See Soto v. State, 269 Neb. 337, 693 N.W.2d 491 (2005), modified on other
grounds 270 Neb. 40, 699 N.W.2d 819.
254 	276 NeBRaSka RePoRTS

claim and refusing compensation.34 a reasonable controversy
under § 48-125 may exist, for instance, if the properly adduced
evidence would support reasonable but opposite conclusions by
the Workers’ compensation court concerning an aspect of an
employee’s claim for workers’ compensation, which conclusions
affect allowance or rejection of an employee’s claim, in whole
or in part.35 and whether a reasonable controversy exists under
§ 48-125 is a question of fact.36
Here, the existence of a reasonable controversy is evidenced
by Lesnak’s opinion, assigning Stacy a 20-percent lower extrem-
ity impairment. and Bridgeport Tractor’s termination of benefits
and its final lump-sum payment were based on Lockwood’s
assignment of a 22- or 23-percent lower extremity impairment.
Lockwood later changed his opinion, and at trial, the single
judge found Scheer more persuasive than Lockwood or Lesnak
with respect to Stacy’s impairment rating. Stacy now argues that
Lockwood’s and Lesnak’s opinions were so lacking in founda-
tion that they should not have been considered at all.
But Stacy has not assigned error to the admission of that
evidence, so his complaints about foundation go to weight,
not admissibility. and although those opinions were ultimately
unpersuasive, that does not mean that the single judge was
clearly wrong in concluding that they at least established a
reasonable controversy regarding Stacy’s impairment rating.37
Given the conflicting medical evidence, the single judge’s find-
ing of a reasonable controversy is supported by the evidence. We
find no merit to Stacy’s fifth assignment of error.
34 See Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved in part on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
35 See Bixenmann v. H. Kehm Constr., 267 Neb. 669, 676 N.W.2d 370
(2004).
36 Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828 (2000).
37 compare, e.g., Dawes, supra note 34; Mulder v. Minnesota Mining & Mfg.
Co., 219 Neb. 241, 361 N.W.2d 572 (1985).
STacY v. GReaT LakeS aGRI mkTG. 	255
cite as 276 Neb. 236

A ttorney fee on review
[22] Finally, Stacy argues that he should have been awarded
an attorney fee on review, because he appealed to the review
panel and obtained an increase in his award. If an employee files
an application for a review before the compensation court of an
award by a judge of the compensation court when the amount
of compensation due is disputed, and obtains an increase in the
amount of such award, the compensation court may allow the
employee a reasonable attorney fee to be taxed as costs against
the employer for such review.38
The issue here arose when Bridgeport Tractor presented the
single judge with a summary of the benefits it had paid Stacy.
That summary reflected an overpayment of $838.07. Stacy
objected to the claimed overpayment, arguing that the attached
documentation had been interpreted incorrectly and that two
payments had been double-counted. Bridgeport Tractor was
unable to immediately resolve the matter, so the single judge
said, “I’ll order payments if appropriate and I won’t make a
finding on credits. and I’ll let you guys take that up with who-
ever . . . .” Stacy’s counsel indicated that the parties “can figure
it out.” However, in the final award, the single judge mistakenly
made a finding of the credit to which Bridgeport Tractor was
entitled for payments already made, including the objected-
to $838.07.
on review, the review panel found that because the single
judge had agreed with the parties not to decide the matter of
Bridgeport Tractor’s credit, the single judge had erred in credit-
ing Bridgeport Tractor for the objected-to $838.07. The review
panel reversed the single judge’s decision to that extent. But the
review panel declined to award an attorney fee, reasoning that
“the disallowance of a credit did not necessarily establish an
increase in [Stacy’s] award, but only reserved the issue of the
subject credit for future resolution.”
[23] Stacy argues that the review panel should have awarded
an attorney fee. For purposes of this appeal, we assume, without
deciding, that a disagreement over credit for voluntary payments
could be a dispute over “the amount of compensation due” that
38 See § 48-125(2).
256 	276 NeBRaSka RePoRTS

may result in “an increase in the amount” of an award.39 But we
agree with the review panel that the reversal of the credit, in this
case, did not result in an increase in the award, because the issue
was reserved for future determination, not decided. Where the
issue of a credit against the award is not decided by the single
judge of the Workers’ compensation court, the defendant is still
entitled to receive credit for payments already made.40 and here,
the parties agreed with the single judge to reserve the issue.
The single judge’s mistake was deciding the issue at all, and the
review panel’s disposition simply enforced the consensus that
had been reached at trial.
Given that fact, there are two problems with Stacy’s argument
for an attorney fee. First, because the credit issue has not been
finally decided, it is impossible to tell at this point whether or
not Stacy’s appeal could result in an increase in the award.41
Second, and perhaps more fundamentally, the record does not
establish that in this case, the amount of Bridgeport Tractor’s
credit was “disputed” within the meaning of § 48-125(2). The
issue was not submitted to the single judge, and the record does
not show whether Bridgeport Tractor disputed the issue before
the review panel.
absent any suggestion in the record that Bridgeport Tractor
actually tried to persuade the court that it was entitled to credit
for the purported $838.07 “overpayment,” it is difficult to con-
clude that Bridgeport Tractor actually “disputed” the “amount
of compensation due,” as is necessary to authorize an attorney
fee on review pursuant to § 48-125(2). There is no basis in
§ 48-125(2) to penalize Bridgeport Tractor for a mistake it nei-
ther asked the single judge to make nor asked the review panel
to affirm. and the record before us contains no evidence that
Bridgeport Tractor did either.
In short, the record does not establish that the purported over-
payment has been disputed before the Workers’ compensation
court or that Stacy has, at this point, obtained an increase in the
39 See id.
40 See D’Quaix v. Chadron State College, 272 Neb. 859, 725 N.W.2d 558
(2007).
41 See Dawes, supra note 34.
STacY v. GReaT LakeS aGRI mkTG. 	257
cite as 276 Neb. 236

award as a result. The review panel did not err in declining to
award Stacy an attorney fee. Therefore, Stacy’s final assignment
of error is without merit.
coNcLuSIoN
The evidence in this case is sufficient to support the single
judge’s finding of a scheduled member injury, because the evi-
dence does not prove, as a matter of law, that Stacy’s medical
condition has resulted in impairment to his body as a whole.
Nor did the single judge clearly err in setting Stacy’s date of
maximum medical improvement and declining to award per-
manent total disability or vocational rehabilitation benefits. The
evidence supports the single judge’s finding of a reasonable
controversy regarding Stacy’s disability. and the review panel
did not err in declining to award an attorney fee on review.
Therefore, the judgment of the Workers’ compensation court
is affirmed.
A ffirmed .
258 	276 NeBRaSka RePoRTS