Miller v. Regional West Med. Ctr.

M elissa l. M iller , appellant, v. regional West
M edical center and continental insurance
coMpany, appellees.
772 N.W.2d 872
Filed October 9, 2009. 	No. S-09-100.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of a jurisdictional issue is a
matter of law which requires an appellate court to reach a conclusion independent
from that of the trial court.
3. Workers’ Compensation: Statutes: Appeal and Error. The meaning of a statute
is a question of law, and an appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law.
4. Workers’ Compensation: Appeal and Error. Appeals from a workers’ compen-
sation trial court to a review panel are controlled by statutory provisions found in
the Nebraska Workers’ Compensation Act.
5. Workers’ Compensation: Final Orders: Appeal and Error. Pursuant to Neb.
Rev. Stat. §§ 48-179 and 48-182 (Reissue 2008), a party may appeal to a review
panel only from a final order of the Workers’ Compensation Court.
6. Workers’ Compensation: Final Orders: Words and Phrases: Appeal and
Error. Neb. Rev. Stat. § 25-1902 (Reissue 2008) defines a “final order” for pur-
poses of a workers’ compensation appeal from a trial court to a review panel.
7. Workers’ Compensation: Final Orders. A workers’ compensation case is a
special proceeding.
8. Final Orders: Appeal and Error. A substantial right is an essential legal right,
not a mere technical right. A substantial right is affected if the order affects the
subject matter of the litigation, such as diminishing a claim or defense that was
available to an appellant prior to the order from which an appeal is taken.
Appeal from the Workers’ Compensation Court. Affirmed.
Robert M. Brenner, of Robert M. Brenner Law Office, for
appellant.
Jason A. Kidd and Abigail A. Wenninghoff, of Engles,
Ketcham, Olson & Keith, P.C., for appellees.
H eavican, 	c.J., 	WrigHt, 	connolly, 	gerrard, 	stepHan,
MccorMack, and M iller-lerMan, JJ.
stepHan, J.
In 1995, Melissa L. Miller was awarded workers’ compensa-
tion benefits for injuries she sustained in an accident arising
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out of and in the course of her employment with Regional West
Medical Center (RWMC). On September 24, 2007, Miller filed
a request for an independent medical examiner in the compen-
sation court. The request sought resolution of issues pertaining
to a shoulder surgery recommended by Miller’s physician. A
single judge of the compensation court denied Miller’s request,
based upon a determination that the 1995 award did not estab-
lish RWMC’s liability for an injury to Miller’s shoulder. Miller
sought review of this order by a review panel of the compensa-
tion court. A majority of the review panel determined that the
order of the single judge was not a final order and dismissed
the application for review. Miller perfected this appeal, which
we moved to our docket on our own motion pursuant to our
statutory authority to regulate the caseloads of the appellate
courts of this state.1 We affirm the order of the review panel
dismissing the application for review.
BACKGROUND
On July 12, 1990, while employed by RWMC as a cook,
Miller was injured when a 6-pound bundle of sacks fell from
a shelf and struck her on the head, neck, and right shoulder.
Following the accident, Miller complained of headaches and
neck pain radiating to her right shoulder. In 1995, she filed
a petition in the compensation court alleging injuries to her
“upper back, head, and right shoulder.” RWMC and its insurer
filed an answer and admitted that the accident occurred in
the course and scope of Miller’s employment and that Miller
“sustained a cervical sprain/strain,” but denied all other mate-
rial allegations.
In an award entered on December 11, 1995, the compensa-
tion court determined that Miller sustained compensable inju-
ries “to her neck and head (headaches)” as a result of the 1990
accident and that she reached maximum medical improvement
on June 29, 1994. The court ordered RWMC to pay benefits
of “$112.00 per week for 7-5/7 weeks for temporary total dis-
ability and thereafter and in addition thereto the sum of $5.60
per week for 292-2/7 weeks for a 5 percent loss of earning
1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
MILLER v. REGIONAL WEST MED. CTR. 	677
Cite as 278 Neb. 676

power.” The compensation court also ordered RWMC to pay
certain medical and hospital expenses incurred by Miller. The
compensation court concluded that the evidence was not suf-
ficient to warrant a finding that Miller required treatment at an
inpatient pain management center as of the date of the award.
However, it ordered RWMC to “continue to provide and care
for such future medical and hospital care and treatment as may
be reasonably necessary as a result of said accident and injury.”
The award further stated that “[i]f said future treatment should
require treatment at a pain management center and if the par-
ties are then unable to agree as to said treatment, a further
hearing may be requested by either party on this issue.”
Following the 1995 award, Miller continued to receive treat-
ment for her injuries, although such treatment was infrequent. In
September 2007, Miller’s treating physician, Dr. Terry Himes,
recommended she undergo surgery on her right shoulder. In a
letter to Miller’s counsel, Himes stated:
When she had intensification of the [shoulder] pain
more recently and we had not been able to sort out to what
extent her neck problems are contributing to the shoulder
problem I explained to her that I thought it would be most
appropriate to proceed with repair of her shoulder first
and then if the levels were still unacceptable to consider
the surgical correction of her neck problem.
Himes also opined, to a reasonable degree of medical cer-
tainty, that Miller’s “right shoulder problems” were the “direct
consequence” of the injuries sustained in her 1990 accident.
Although the precise nature of the shoulder surgery recom-
mended by Himes is not clear from the record, there is some
indication that in 2007, Miller was diagnosed with a torn ten-
don in her right shoulder.
On September 24, 2007, Miller filed a request for an inde-
pendent medical examiner, utilizing a form provided by the
compensation court. On this form, she indicated that injuries to
her head, neck, and shoulders had occurred on July 12, 1990,
and referred to the provision of the 1995 award regarding future
medical expenses. She alleged that Himes had recommended
shoulder surgery and requested opinions from an independent
medical examiner on the following issues:
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1. Should the shoulder surgery or repair of shoulder be
done at this time and then if levels of reducing the pain
and discomfort are not acceptable to then consider the
surgical correction of the neck problem.
2. Is this repair of shoulder surgery and potentially sur-
gical correction of the neck problem associated with her
Workers’ Compensation injury for which she recovered
an Award.
On December 28, 2007, the single judge denied Miller’s
request for an independent medical examiner, concluding that
the 1995 award did not find a compensable shoulder injury and
that therefore, RWMC had no liability for evaluation and treat-
ment of Miller’s right shoulder. In dismissing Miller’s appli-
cation for review, a majority of the review panel concluded
that the single judge’s denial of Miller’s request was not a
final, appealable order. One member of the panel filed a dis-
sent, reasoning that the order of the single judge was final and
appealable, because it prevented Miller from seeking workers’
compensation benefits for specific medical care.
ASSIGNMENTS OF ERROR
Miller assigns, consolidated and restated, (1) that the review
panel erred in finding the denial of her request for an indepen-
dent medical examiner was not a final order and (2) that the
single judge erred in denying her request for appointment of an
independent medical examiner.
STANDARD OF REVIEW
[1-3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to settle jurisdictional issues
presented by a case.2 When a jurisdictional question does not
involve a factual dispute, determination of a jurisdictional issue
is a matter of law which requires an appellate court to reach a
conclusion independent from that of the trial court.3 The mean-
ing of a statute is a question of law, and an appellate court
2 Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved on other grounds, Kimminau v. Uribe Refuse
Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
3 Thompson v. Kiewit Constr. Co., 258 Neb. 323, 603 N.W.2d 368 (1999).
MILLER v. REGIONAL WEST MED. CTR. 	679
Cite as 278 Neb. 676

is obligated in workers’ compensation cases to make its own
determinations as to questions of law.4
ANALYSIS
[4-6] Appeals from a workers’ compensation trial court to
a review panel are controlled by statutory provisions found
in the Nebraska Workers’ Compensation Act, Neb. Rev. Stat.
§ 48-101 et seq. (Reissue 2008).5 Pursuant to §§ 48-179 and
48-182, a party may appeal to a review panel only from a
final order of the Workers’ Compensation Court.6 Neb. Rev.
Stat. § 25-1902 (Reissue 2008) defines a “final order” for
purposes of a workers’ compensation appeal from a trial court
to a review panel.7 Under § 25-1902, a final order is (1) an
order which affects a substantial right in an action and which
in effect determines the action and prevents a judgment, (2)
an order affecting a substantial right made during a special
proceeding, and (3) an order affecting a substantial right made
on summary application in an action after a judgment is ren-
dered.8 Miller contends that the order of the single judge deny-
ing her request for appointment of an independent medical
examiner was an order affecting a substantial right, because
it was “clearly intended to serve as a final adjudication of the
rights and liabilities of the parties,” and that it was entered in
a special proceeding.9
[7,8] It is well settled that a workers’ compensation case is
a special proceeding.10 Thus, the finality of the single judge’s
order in this case hinges upon whether it affected a “substan-
tial right,” which we have defined as “‘an essential legal right,
4 Powell v. Estate Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008); Knapp
v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).
5 Thompson v. Kiewit Constr. Co., supra note 3.
6 Id. See, also, Dawes v. Wittrock Sandblasting & Painting, supra note 2.
7 Thompson v. Kiewit Constr. Co., supra note 3.
8 See, id.; Holste v. Burlington Northern RR. Co., 256 Neb. 713, 592 N.W.2d
894 (1999).
9 Brief for appellant at 20.
10 Thompson v. Kiewit Constr. Co., supra note 3.
680 	278 NEBRASKA REPORTS

not a mere technical right.’”11 “‘A substantial right is affected
if the order affects the subject matter of the litigation, such
as diminishing a claim or defense that was available to the
appellant prior to the order from which the appeal is taken.’”12
Miller argues that the order of the single judge affected a sub-
stantial right, because it deprived her of the ability to obtain an
independent medical examination and thereby prejudiced her
ability to seek workers’ compensation benefits for her shoulder
surgery. Specifically, Miller contends that, without the inde-
pendent medical examination she requested, she is precluded
from filing a petition for benefits pursuant to § 48-173, which
provides in part: “No petition may be filed with the compensa-
tion court solely on the issue of reasonableness and necessity
of medical treatment unless a medical finding on such issue has
been rendered by an independent medical examiner pursuant to
section 48-134.01.” (Emphasis supplied.)
Section 48-134.01 authorizes the compensation court to
develop and implement a medical examiner system whereby
independent 	examiners 	who 	have 	not 	treated 	the 	injured
employee 	“shall 	render 	medical 	findings 	on 	the 	medi-
cal condition of an employee and related issues.”13 Section
48-134.01(3) provides:
If the parties to a dispute cannot agree on an independent
medical examiner of their own choosing, the compensa-
tion court shall assign an independent medical examiner
from the list of qualified examiners to render medical
findings in any dispute relating to the medical condition
of a claimant and related issues, including, but not limited
to . . . the reasonableness and necessity of any medical
treatment previously provided, or to be provided, to the
injured employee, and any other medical questions which
may pertain to causality and relatedness of the medical
condition to the employment.
11 Id. at 329, 603 N.W.2d at 372, quoting Holste v. Burlington Northern RR.
Co., supra note 8.
12 Id.
13 § 48-134.01(2).
MILLER v. REGIONAL WEST MED. CTR. 	681
Cite as 278 Neb. 676

Clearly, the “reasonableness and necessity” of medical
treatment and “causality and relatedness of the medical con-
dition to the employment” are separate and distinct questions
upon which an independent examiner may be asked to opine,
and they are separate issues which must be determined in a
contested claim for workers’ compensation benefits to pay for
medical treatment. Here, the parties dispute whether Miller’s
current shoulder condition and planned surgical correction
are causally related to the injuries determined in her 1995
award. The order of the single judge denying her request
for an independent medical examination does not foreclose
Miller’s ability to file a petition pursuant to § 48-173 seeking
workers’ compensation benefits for her shoulder surgery. Such
a petition would not present solely the “issue of reasonable-
ness and necessity of medical treatment,” but also the issue
of whether the proposed treatment is causally related to the
injuries determined by the 1995 award. Because the requested
independent medical examination is not a prerequisite to the
filing of a petition under § 48-173 seeking benefits for the
proposed shoulder surgery on this record, the denial of the
request did not affect a substantial right and is therefore not a
final, appealable order.
Because we agree with the review panel that the order of
the single judge was not a final, appealable order, we do not
address Miller’s assignment of error directed to that order.
CONCLUSION
For the reasons discussed, we affirm the order of the Workers’
Compensation Court review panel dismissing Miller’s applica-
tion for review on the ground that the order of the single judge
was not a final, appealable order and thus, the review panel was
therefore without jurisdiction to review it.
affirMed.
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