Manchester v. Drivers Mgmt.

upon a referee and to sell the property in the most commer-
cially reasonable manner possible. The personal representative
should attempt to sell the property in the manner which will
bring the best price for the property. In this instance, the evi-
dence supported Diana’s contention that the property should be
listed with a real estate agent.
We conclude that this procedure would be consistent with
our direction that the Nebraska Probate Code should be liber-
ally construed and applied in accordance with the underlying
purpose of the code to promote a speedy and efficient system
for liquidating the estate of the decedent and making distri-
bution to his successors. See In re Estate of Kentopp, 206
Neb. 776, 295 N.W.2d 275 (1980). The evidence supports the
conclusion that Diana should first attempt to sell the property
by listing it at its appraised value. The county court is given
discretion to determine how long the listing should continue. If
this method of sale does not prove satisfactory, the court should
direct that the property be sold at a public sale.
We therefore reverse the judgment of the county court,
which dismissed Diana’s request for an order to sell the real
estate, and remand the cause with directions.
R eveRsed and Remanded with diRections.
angelina manchesteR, appellant and cRoss -appellee , v.
dRiveRs management, llc, a nebRaska coRpoRation,
appellee and cRoss -appellant.
775 N.W.2d 179
Filed October 30, 2009. 	No. S-09-062.
1. Workers’ Compensation: Appeal and Error. Under 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 with-
out or in excess of its powers; (2) the judgment, order, or award was procured
by fraud; (3) there is not sufficient competent evidence in the record to warrant
the making of the order, judgment, or award; or (4) the findings of fact by the
compensation court do not support the order or award.
2. ____: ____. On appellate review, the findings of fact made by the trial judge of
the Workers’ Compensation Court have the effect of a jury verdict and will not be
disturbed unless clearly wrong.
776 	278 NebRaSka RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

3. Workers’ Compensation: Evidence: Appeal and Error. If the record contains
evidence to substantiate the factual conclusions reached by the trial judge in
workers’ compensation cases, an appellate court is precluded from substituting its
view of the facts for that of the compensation court.
4. Workers’ Compensation: Mental Health. a worker is entitled to recover com-
pensation for a mental illness if it is a proximate result of the worker’s injury and
results in disability.
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 dis-
ability 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. a preexisting disease and an aggravation of that dis-
ease may combine to produce a compensable injury.
8. ____. Whether a plaintiff in a Nebraska workers’ compensation case is totally
disabled is a question of fact.
9. Evidence: Appeal and Error. In testing the sufficiency of the evidence to sup-
port the findings of fact, the evidence must be considered in the light most favor-
able to the successful party, every controverted fact must be resolved in favor
of the successful party, and the successful party will have the benefit of every
inference that is reasonably deducible from the evidence.
10. Workers’ Compensation. as the trier of fact, the Workers’ Compensation Court
is the sole judge of the credibility of witnesses and the weight to be given their
testimony.
11. Workers’ Compensation: Evidence: Testimony. a trial judge can rely on a
claimant’s testimony regarding his or her own limitations to determine the extent
of the claimant’s disability.
12. Workers’ Compensation: Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2008)
requires an employer to pay the 50-percent waiting-time penalty in the following
circumstances: if (1) the employer fails to pay compensation within 30 days of
the employee’s notice of a disability and (2) no reasonable controversy existed
regarding the employee’s claim for benefits.
13. Workers’ Compensation. a reasonable controversy may exist (1) if there is a
question of law previously unanswered by the appellate courts, which question
must be answered to determine a right or liability for disposition of a claim under
the Nebraska Workers’ Compensation act, or (2) if the properly adduced evidence
would support reasonable but opposite conclusions by the Nebraska 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.
14. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures: Words
and Phrases. Whether a reasonable controversy exists under Neb. Rev. Stat.
§ 48-125 (Cum. Supp. 2008) is a question of fact.
maNCheSTeR v. DRIveRS mgmT. 	777
Cite as 278 Neb. 776

appeal from the Workers’ Compensation Court. affirmed in
part, and in part reversed with directions.
James e. harris and britany S. Shotkoski, of harris kuhn
Law Firm, L.L.P., for appellant.
Daniel 	R. 	Fridrich, 	of 	Werner 	enterprises, 	Inc., 	for
appellee.
heavican, 	c.J., 	wRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
milleR-leRman, J.
NaTURe OF The CaSe
appellant, angelina manchester, was employed by appellee
and cross-appellant, Drivers management, LLC, as a truck-
driver. On January 8, 2006, manchester was in an accident
and suffered injuries to her shoulder and a recurrence of
her depression and agoraphobia. The Workers’ Compensation
Court awarded manchester temporary total disability (TTD)
benefits from January 8, 2006, through July 30, 2007, and
penalties and attorney fees. On appeal, the three-judge review
panel affirmed the award of benefits but reversed the award of
penalties, interest, and attorney fees. manchester appeals the
review panel’s reversal of the award of penalties, interest, and
attorney fees. Drivers management cross-appeals, claiming that
manchester was not entitled to an award of benefits. We find
no merit to the cross-appeal and affirm the award of benefits.
We find merit in the appeal, and we reverse the order of the
review panel with respect to penalties, interest, and attorney
fees and direct the compensation court to reinstate the award of
penalties and attorney fees.
STaTemeNT OF FaCTS
manchester has a history of suffering from mental illness,
which history has been documented since 2002. In June 2002,
manchester was admitted to a hospital in boise, Idaho, for
a “[m]ajor depressive disorder[,] recurrent.” manchester was
hospitalized in a State hospital in blackfoot, Idaho, from July
10 through July 25, 2002.
778 	278 NebRaSka RePORTS

On July 16, 2002, while residing in the State hospital,
manchester applied for Social Security benefits. The Social
Security administration had manchester examined by a doc-
tor who identified that manchester suffered from avoidant
personality disorder, dependent personality disorder, problems
related to the social environment, occupational problems, and
problems with access to health care services. On December 19,
the Social Security administration awarded her total disability
benefits, and manchester was found to be totally disabled as of
June 1, 2002.
In 2004, manchester was assessed with recurrent major
depression, 	and 	with 	panic 	disorder, 	agoraphobia, 	post-
traumatic stress disorder in partial remission, borderline traits,
and moderate stressors. In march, her therapist recommended
that she obtain a service dog, and within the same year, it was
noted that she was becoming more independent with the use
of her service dog.
manchester participated in vocational rehabilitation pro-
grams through the Social Security administration and went to
school to become a truckdriver. On December 6, 2004, after
finishing her truckdriving program, manchester was hired by
Drivers management. manchester’s last recorded visit to her
doctors for psychological treatment was on December 2.
manchester drove a truck for Drivers management from
December 2004 until January 8, 2006, without incident. On
January 8, 2006, manchester was westbound on Interstate 84
following another truck when she hit some ice and left the
road. manchester testified that the left side of the truck’s trac-
tor came around and hit the truck’s trailer. Suffering from a
shoulder injury, manchester was taken to a hospital and was
instructed to be off work for 1 week.
On February 3, 2006, manchester was diagnosed with a
shoulder strain, cervical strain, and lumbar strain. The doctor
noted that manchester could return to work with restrictions of
no repetitive lifting over 20 pounds, no pushing or pulling over
20 pounds of force, and limited use of the left arm.
On February 6, 2006, Drivers management fired manchester
because she was in an accident due to negligence. after many
visits to doctors concerning her shoulder injury, on June 29,
maNCheSTeR v. DRIveRS mgmT. 	779
Cite as 278 Neb. 776

manchester was informed that she likely suffered from a labral
tear, and she was ordered not to drive for work. manchester
had shoulder surgery on august 18. manchester was to be off
work until September 28. Ultimately, manchester was physi-
cally unable to drive a truck until November 21, 2007.
at the same time manchester was seeking treatment for her
shoulder injury, manchester was seeking treatment for a recur-
rence of her depression and agoraphobia. In early September
2006, manchester called her former psychologist, with whom
she had not met since December 2, 2004. manchester told him
that she was terminated from work and was falling apart, and
he advised her to seek help.
manchester went to Columbus Psychological associates,
L.L.P., and began receiving treatment from Paul guinane,
Ph.D., on November 7, 2006. In his notes discussing his ses-
sions with manchester, guinane noted that manchester’s affect
remained flat and that she had a sense of being an unproductive
worker. guinane noted that in addition to her physical pain,
manchester had other stressors in her life, including stress with
her boyfriend and the litigation over her workers’ compensa-
tion benefits.
In a letter dated December 5, 2006, guinane stated that
manchester suffered from “major Depressive Disorder” and
“Panic Disorder with agoraphobia.” guinane stated that the
two main stressors preventing manchester from reaching maxi-
mum medical recovery in her psychological functions were (1)
her constant physical pain related to her work-related injury
and (2) the pendency of her legal actions against Drivers
management which have not been resolved.
In January 2007, manchester enrolled in a community col-
lege in alabama. Ultimately, manchester dropped out of school
because of her severe agoraphobia and depression. In a note
by guinane dated may 15, 2007, he stated that manchester’s
agoraphobic symptoms had significantly worsened to the point
of forcing her to suspend her studies at college. guinane noted
that manchester’s prognosis would improve once the cur-
rent stress of her litigation case against Drivers management
ceased. he noted that manchester should be employable in a
field that provides her with significant support and low levels
780 	278 NebRaSka RePORTS

of stress. The trial judge found that the date of maximum medi-
cal improvement for manchester’s mental health injuries was
July 30, 2007.
Drivers 	management 	paid 	manchester 	benefits 	from
January 8, 2006, until her termination of employment on
February 6. Drivers management contended that it did not
owe manchester benefits from February 7 through august
18, the date of her shoulder surgery, because if manchester’s
employment had not been terminated, she could have engaged
in light-duty work.
The trial judge awarded manchester TTD benefits for the
period of January 8, 2006, through July 30, 2007. In its award,
the trial judge concluded that manchester was not prohibited
from the receipt of workers’ compensation benefits simply
because she had previously been found by the Social Security
administration to be totally disabled and was receiving Social
Security benefits. The court reasoned that manchester had an
earning capacity that she could lose and was, therefore, entitled
to workers’ compensation benefits. Further, the trial judge
found that there was a causal link between the accident and
manchester’s psychological injuries. The trial judge awarded
manchester TTD benefits of $544.76 per week beginning on
January 8, 2006, and ending July 30, 2007. The trial judge
found that manchester was not totally disabled and did not
award permanent benefits. The court did award manchester
$299.44 per week for a 55-percent loss of earning capacity
beginning July 31, 2007.
The trial judge also awarded manchester waiting-time penal-
ties and attorney fees because of Drivers management’s failure
to pay manchester benefits from February 7 through august
18, 2006. The trial judge stated:
If an employer is entitled to a credit against any workers’
compensation benefits for payments it would have made
to the employee had the employee not been fired, most,
if not all employers would fire employees as soon as they
suffered an injury in an accident arising out of and in the
course of their employment. Such conduct is not accept-
able. In this case, as in most cases, the employer has a
choice. That choice is to put the employee to work in a
maNCheSTeR v. DRIveRS mgmT. 	781
Cite as 278 Neb. 776

light duty position or pay workers’ compensation benefits.
Termination is not an option.
Drivers management appealed to the review panel. The
review panel affirmed in part and reversed in part. The review
panel affirmed the trial judge’s determination that there was a
causal link between the accident and manchester’s psychologi-
cal injuries, stating that it was satisfied that the trial judge had
a sufficient basis in fact to substantiate, or otherwise justify, the
decision reached on causation.
The review panel also affirmed the trial judge’s decision that
manchester was not prohibited from receiving benefits simply
because she had previously been found totally disabled by the
Social Security administration. The review panel noted that
manchester was gainfully employed at the time of the accident,
and it reasoned that she had an earning capacity to lose and
that but for the accident, manchester would likely have been
released from her eligibility for Social Security disability bene-
fits through the “Ticket to Work” program.
The review panel reversed the trial judge’s award of penal-
ties, interest, and attorney fees. In reviewing the trial judge’s
award, the review panel observed that the trial judge had
concluded that any termination of employment following an
accident represented “‘conduct [that was] not acceptable’” and
triggered penalties against the employer. On appeal, the review
panel concluded that this statement of law was contrary to the
decision of this court in Guico v. Excel Corp., 260 Neb. 712,
619 N.W.2d 470 (2000), in which we stated that the issue of
whether to terminate an individual’s employment for his or
her behavior should be resolved on a case-by-case basis. The
review panel determined that the award of penalties by the trial
judge based solely on termination of manchester’s employment
was premised on a misstatement of the law. Further, the review
panel determined that there was a reasonable controversy as to
manchester’s right to benefits “owing to her actions leading to
the subject accident.” The review panel reversed the award of
penalties, interest, and attorney fees. manchester appeals, and
Drivers management cross-appeals.
782 	278 NebRaSka RePORTS

aSSIgNmeNTS OF eRROR
On appeal, manchester claims that the review panel erred as
a matter of law in reversing the trial judge’s award of penalties,
interest, and attorney fees.
On 	cross-appeal, 	Drivers 	management 	claims 	that 	the
Nebraska Workers’ Compensation Court erred by (1) award-
ing 	manchester 	TTD 	benefits 	after 	the 	Social 	Security
administration had found her to be totally disabled; (2)
finding that manchester’s depression was causally related to
the accident and resulted in injuries suffered on January 8,
2006; (3) awarding manchester TTD benefits from January
8, 2006, through July 30, 2007, because she was able to
obtain light-duty work and attend school; and (4) order-
ing Drivers management to pay Columbus Psychological
associates $6,780.
STaNDaRDS OF RevIeW
[1] Under 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 compensa-
tion 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. Obermiller v. Peak Interest, 277 Neb. 656, 764 N.W.2d
410 (2009).
[2,3] On appellate review, the findings of fact made by the
trial judge of the Workers’ Compensation Court have the effect
of a jury verdict and will not be disturbed unless clearly wrong.
Murphy v. City of Grand Island, 274 Neb. 670, 742 N.W.2d
506 (2007). If the record contains evidence to substantiate the
factual conclusions reached by the trial judge in workers’ com-
pensation cases, an appellate court is precluded from substitut-
ing its view of the facts for that of the compensation court.
Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d
125 (2002).
maNCheSTeR v. DRIveRS mgmT. 	783
Cite as 278 Neb. 776

aNaLYSIS
In view of the manner in which the parties have framed
the issues, we will first address the issues raised in Drivers
management’s cross-appeal and thereafter consider the merits
of the appeal.
Cross-Appeal: Manchester’s Receipt of Social Security
Disability Payments Did Not Preclude Her From
Recovering Workers’ Compensation Benefits.
Drivers management argues on cross-appeal, as it did before
the trial judge and the review panel, that because manchester was
previously determined by the Social Security administration to
be totally disabled, she had no earning capacity to lose and was
therefore ineligible to receive workers’ compensation benefits
as a result of the January 8, 2006, accident.
In support of this argument, Drivers management relies on
Neneman v. Falstaff Brewing Corp., 237 Neb. 421, 466 N.W.2d
97 (1991). The trial judge and the review panel in the instant
case found that Neneman was distinguishable and rejected this
argument. We agree that Neneman is distinguishable.
In Neneman, the employee became totally disabled for Social
Security purposes based on osteomyelitis in his right ankle, a
non-work-related injury. after becoming totally disabled for
Social Security purposes based on this non-work-related injury,
the employee discovered that he had developed asbestosis due
to his former employment. at the time of discovering this
work-related injury, the employee had already stopped work-
ing and was receiving full disability benefits due to his osteo-
myelitis, and he therefore was deemed ineligible to receive
workers’ compensation benefits.
The 	trial 	judge 	and 	review 	panel 	herein 	distinguished
Neneman from manchester’s case, noting that at the time
the employee in Neneman discovered his asbestosis, he had
no earning power, whereas at the time of manchester’s acci-
dent, she was in the labor force and actually working her way
off of Social Security disability. The trial judge concluded
that manchester’s ability to drive a truck and earn wages for
Drivers management “shows that she had an earning power
which could be reduced as a result of the accident of January 8,
784 	278 NebRaSka RePORTS

2006.” The review panel agreed with this determination as well
as the conclusion of the trial judge to the effect that the receipt
of Social Security benefits does not disqualify an employee
from receiving a workers’ compensation award.
We agree that Neneman is distinguishable from the facts of
this case and further conclude that the trial judge and the review
panel were correct in concluding that because manchester had
an earning power to lose, her receipt of Social Security benefits
based on an earlier determination of total disability did not
prevent her from recovering workers’ compensation benefits.
Our conclusion is consistent with the weight of authority in
this area.
Courts have considered the issue of whether an individual
who had previously been determined to be totally disabled
for Social Security purposes, but who thereafter resumed
gainful employment that resulted in an injury, is precluded
from receiving workers’ compensation benefits for loss of
earning capacity arising out of the work-related injury. The
courts have generally concluded that such an individual
may receive workers’ compensation benefits. See Wal-Mart
Stores, Inc. v. Bratton, 678 So. 2d 1071 (ala. Civ. app.
1995), reversed on other grounds, Ex Parte Bratton, 678 So.
2d 1079 (ala. 1996). See, also, Francis Powell Enterprises
v. Andrews, 21 So. 3d 726 (ala. Civ. app. 2009). See, simi-
larly, Walls v. Hodo Chevrolet Company, Inc., 302 So. 2d
862 (miss. 1974); Reed v. Young, 196 N.e.2d 350 (Ohio
Com. Pl. 1963). It has been stated, for example, that “[t]he
fact that an individual has once received Social Security dis-
ability benefits does not make that individual forever ineli-
gible for [workers’] compensation disability benefits, in the
event the individual recovers to the point that he or she is
able to resume gainful employment.” Wal-Mart Stores, Inc.,
678 So. 2d at 1076.
Indeed, the provisions of the Social Security act anticipate
the instance where an individual receives both Social Security
and workers’ compensation benefits. by its terms, the act
has ensured that an employee will not recover a windfall, by
statutorily providing for an offset from the individual’s Social
Security payments. See 42 U.S.C. § 424a (2006) (reducing
maNCheSTeR v. DRIveRS mgmT. 	785
Cite as 278 Neb. 776

computation of Social Security benefits if employee receives
workers’ compensation benefits). moreover, the existence of
the Social Security rehabilitative programs indicates that an
individual once assessed by the Social Security administration
to be totally disabled is not expected to be forever unable to
work. See 42 U.S.C. § 422 (2006).
In this case, manchester was involved in the Social Security
“Ticket to Work” program and was working her way off Social
Security disability. because manchester was able to resume
gainful employment and had worked for Drivers management
for 	13 	months 	before 	the 	accident, 	the 	Social 	Security
administration’s determination that at one point in time she
was totally disabled does not logically prevent her from later
recovering workers’ compensation benefits for her loss of
earning capacity due to a disability incurred in the course of
her employment. Therefore, we reject Drivers management’s
argument and affirm the decision of the review panel on
this issue.
There Was Sufficient Proof in the Record of Causation
Between the Accident and the Recurrence of
Manchester’s Depression and Agoraphobia.
We next address Drivers management’s argument on cross-
appeal that the Workers’ Compensation Court erred in finding
that there was sufficient evidence in the record to conclude
that the recurrence of manchester’s depression and agora-
phobia was causally related to the accident and her subsequent
injuries. Specifically, Drivers management argues that the
causation opinion of guinane was insufficient to establish the
necessary causal link between the accident and manchester’s
depression 	and 	agoraphobia. 	Drivers 	management 	claims
that the majority of the evidence in the record shows that
manchester’s depression and agoraphobia may have worsened
after the accident, but that this was due to family problems and
other stressors.
The review panel affirmed the decision of the trial judge to
the effect that there was a causal link between the accident and
manchester’s psychological issues. after reviewing guinane’s
opinion in its entirety, the review panel concluded that the trial
786 	278 NebRaSka RePORTS

judge had a sufficient basis in fact to “substantiate or, other-
wise, justify the conclusion he reached on causation.”
[4] It is well settled in Nebraska workers’ compensation law
that a worker is entitled to recover compensation for a mental
illness if it is a proximate result of the worker’s injury and
results in disability. Sweeney v. Kerstens & Lee, Inc., 268 Neb.
752, 688 N.W.2d 350 (2004); Kraft v. Paul Reed Constr. &
Supply, 239 Neb. 257, 475 N.W.2d 513 (1991).
[5,6] 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 occupa-
tional disease arising out of and occurring in the course of
employment proximately caused an injury which resulted in
disability compensable under the act. Sweeney, supra. a proxi-
mate cause is a cause that produces a result in a natural and
continuous sequence and without which the result would not
have occurred. Id.
[7] Further, a preexisting disease and an aggravation of
that disease may combine to produce a compensable injury.
Miller v. Goodyear Tire & Rubber Co., 239 Neb. 1014, 480
N.W.2d 162 (1992). This court has expressly disapproved of
a heightened standard of proof when a preexisting disease
or condition was involved, stating: “‘[a] workers’ compen-
sation claimant may recover when an injury, arising out of
and in the course of employment, combines with a preexist-
ing condition to produce disability, notwithstanding that in
the absence of the preexisting condition no disability would
have resulted. . . .’” Id. at 1020, 480 N.W.2d at 167 (quoting
Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459,
461 N.W.2d 565 (1990)).
Drivers management argues that the instant case is similar
to Sweeney, where this court concluded that an employee had
not established the requisite causal link between the employ-
ee’s mental health issues and his physical pain. In Sweeney,
the expert opinion relied on for causation stated that the
employee’s depression was entirely attributable to the loss of
earning capacity report that the employee believed would have
a negative impact on the compensation litigation. The expert
testified that in his opinion, the depression was triggered by
maNCheSTeR v. DRIveRS mgmT. 	787
Cite as 278 Neb. 776

the employee’s unhappiness with a court ruling. Id. The court
in Sweeney distinguished that case from Kraft, supra, where
the expert testified that a worker’s neurosis was attributed to
both his physical injury and the psychological loss resulting
from the worker’s immobility and inability to work and was
therefore compensable.
The causation opinion upon which the Workers’ Compensation
Court relied in this case was that of guinane, which stated:
“It is my professional opinion that [manchester’s] depres-
sive and anxiety related symptoms were substantially caused
(mainly depressive symptoms) and significantly exacerbated
(panic disorder with agoraphobia) subsequent to the physical
injuries, as well as her unexpected and perceived unfair dis-
missal from her previous place of employment.” guinane also
opined that manchester’s psychological condition combined
with her physical injuries to render her disabled from work-
ing. guinane expressly stated that manchester’s depression
and anxiety were reactivated by her accident and subsequent
release from her employment. Importantly, guinane further
concluded that manchester had not reached maximum medical
improvement in her psychological functioning because of her
constant physical pain related to her work injury.
On 	appellate 	review, 	the 	findings 	of 	the 	Workers’
Compensation Court will not be reversed unless clearly wrong.
We will affirm the order of the Workers’ Compensation Court
unless there is insufficient evidence in the record to support
its decision. here, based on the reports of guinane, there was
sufficient evidence to support the conclusion that manchester’s
depression 	and 	agoraphobia 	were 	caused 	and 	exacerbated
by her accident. guinane expressly stated that manchester’s
depression and anxiety were reactivated by the accident and
that her mental health conditions were related to the physical
pain she suffered from the accident. In addition to the reports
of guinane, it is notable that manchester had not sought psy-
chological help while employed with Drivers management
until after her accident.
based 	on 	the 	record 	in 	this 	case, 	we 	reject 	Drivers
management’s argument, and we affirm the decision of the
review panel on this issue.
788 	278 NebRaSka RePORTS

The Award of TTD Benefits
Was Not Error.
Drivers management next argues on cross-appeal that the
Workers’ Compensation Court erred in awarding manchester
TTD benefits for the period of February 3 through august 17,
2006, and January through July 30, 2007. Drivers management
argues that because manchester was released to light-duty work
during the time period of February 3 through august 17, 2006,
and Drivers management would have had light-duty work
available for her if her employment had not been terminated,
the award of benefits was error. Drivers management also
argues that because manchester attended college courses after
January 2007, she was not eligible for benefits. manchester
responds and claims that the evidence was sufficient to support
the award of TTD.
Compensability under the Nebraska Workers’ Compensation
act is determined by Neb. Rev. Stat. § 48-101 (Reissue 2004),
which provides:
When personal injury is caused to an employee by
accident or occupational disease, arising out of and in the
course of his or her employment, such employee shall
receive compensation therefor from his or her employer
if the employee was not willfully negligent at the time of
receiving such injury.
For the sake of completeness, we interject here that there
is some suggestion by Drivers management in this appeal
that manchester was willfully negligent, and her employment
terminated therefor, thereby precluding an award of workers’
compensation benefits. See id. The evidence does not support a
finding of willful negligence related to manchester’s January 8,
2006, accident wherein she slid off the icy roadway. See Guico
v. Excel Corp., 260 Neb. 712, 619 N.W.2d 470 (2000). Indeed,
the jurisprudence in this area indicates, albeit fact specific, that
a finding of willful negligence associated with driving acci-
dents is rare. See 2 arthur Larson & Lex k. Larson, Larson’s
Workers’ Compensation Law § 34.02 (2009). See, also, Dept.
of Public Safety v. Collins, 140 ga. app. 884, 232 S.e.2d 160
(1977); Buzzo v. Woolridge Trucking, Inc., 17 va. app. 327,
437 S.e.2d 205 (1993).
maNCheSTeR v. DRIveRS mgmT. 	789
Cite as 278 Neb. 776

[8-10] Whether a plaintiff in a Nebraska workers’ compensa-
tion case is totally disabled is a question of fact. See Kaufman
v. Control Data, 237 Neb. 224, 465 N.W.2d 727 (1991). In
testing the sufficiency of the evidence to support the findings
of fact, the evidence must be considered in the light most
favorable to the successful party, every controverted fact must
be resolved in favor of the successful party, and the successful
party will have the benefit of every inference that is reasonably
deducible from the evidence. See Hagelstein v. Swift-Eckrich,
261 Neb. 305, 622 N.W.2d 663 (2001). moreover, as the trier
of fact, the Workers’ Compensation Court is the sole judge of
the credibility of witnesses and the weight to be given their
testimony. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237,
639 N.W.2d 125 (2002).
In this case, the trial judge determined that manchester
was 	temporarily 	totally 	disabled. 	In 	response 	to 	Drivers
management’s contention that manchester could work a light-
duty job, the trial judge stated that “[i]t is unreasonable to
believe that a person who has a pending workers’ compensa-
tion claim for a shoulder and neck injury would be able to find
employment.” The review panel affirmed this decision.
[11] The 	record 	supports 	the 	trial 	judge’s 	finding 	that
manchester was temporarily totally disabled. On February 3,
2006, after manchester was diagnosed with shoulder strain,
cervical strain, and lumbar strain it was noted by the doctor that
manchester could return to work with restrictions of no repeti-
tive lifting over 20 pounds, no pushing or pulling over 20 pounds
of force, and limited use of the left arm. however, manchester
testified that she was totally disabled and unable to work from
the date of the accident through the date of her shoulder surgery
on august 18. a trial judge can rely on a claimant’s testimony
regarding his or her own limitations to determine the extent of
the claimant’s disability. See Luehring v. Tibbs Constr. Co., 235
Neb. 883, 457 N.W.2d 815 (1990).
In addition to manchester’s testimony, a functional capac-
ity evaluation dated march 26, 2007, stated that manchester
was unable to return to full-time driving. Further, during the
time period of January 8, 2006, through July 30, 2007, there
were various doctor reports limiting manchester’s ability to
790 	278 NebRaSka RePORTS

work. guinane stated in a letter dated December 5, 2006, that
manchester’s psychological injuries combined with her physi-
cal pain had rendered her disabled to work up to that time and
that the incapacitation would remain until the source of her
pain was significantly reduced “and she ha[d] gained signifi-
cant improvement in her psychological functioning.”
While there was evidence in the record that manchester
attended college classes in January 2007, this was at the recom-
mendation of her therapist in an effort to help manchester’s
agoraphobia. Indeed, the record shows that manchester had
to 	discontinue 	her 	classwork 	due 	to 	her 	ongoing 	mental
health problems.
On an issue of fact, this court will not substitute its judg-
ment for that of the trial judge. Rather, we take every inference
in favor of the successful party. Doing so here, we determine
that on this record there was sufficient evidence to support the
trial judge’s finding that manchester was entitled to TTD bene-
fits beginning January 8, 2006, and ending July 30, 2007, and
we affirm the decision of the review panel which affirmed this
finding. It is of note that the review panel corrected the rul-
ing of the trial judge and altered the last date that manchester
could receive TTD benefits from July 30 to July 29, 2007,
because July 30 was the date of maximum medical improve-
ment. To the extent that Drivers management’s cross-appeal
complains in its assignments of error of an award covering July
30, this claim has been resolved in its favor and we affirm. We
reject Drivers management’s argument regarding the award of
TTD benefits.
The Payment of Fees to Columbus
Psychological Associates
Was Not Error.
Drivers management claims on cross-appeal that the Workers’
Compensation Court erred in awarding fees to Columbus
Psychological associates for manchester’s treatment for her
agoraphobia and depression.
Neb. Rev. Stat. § 48-120(1)(a) (Cum. Supp. 2006) states
that “[t]he employer is liable for all reasonable medical, surgi-
cal, and hospital services . . . subject to the approval of and
maNCheSTeR v. DRIveRS mgmT. 	791
Cite as 278 Neb. 776

regulation by the Nebraska Workers’ Compensation Court, not
to exceed the regular charge made for such service in simi-
lar cases.”
as discussed earlier in this opinion, manchester’s depres-
sion and agoraphobia were causally related to her accident, and
therefore, payment to guinane for treatment is proper. We have
previously stated that mental health care charges are contem-
plated by the Nebraska Workers’ Compensation act. See Canas
v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990).
We reject Drivers management’s argument and affirm the deci-
sion of the Workers’ Compensation Court.
Appeal: The Review Panel Erred When It
Reversed the Award of Penalties,
Interest, and Attorney Fees.
manchester claims on appeal that the review panel erred
in reversing the trial judge’s award of waiting-time penalties,
interest, and attorney fees based on Drivers management’s
failure to pay benefits from February 7 through august 18,
2006. because there was no real controversy, we agree with
manchester that the trial judge’s award of penalties, interest,
and attorney fees was warranted, and we reverse the decision
of the review panel in this regard.
[12] Neb. Rev. Stat. § 48-125 (Cum. Supp. 2008) requires
an employer to pay the 50-percent waiting-time penalty in
the following circumstances: if (1) the employer fails to pay
compensation within 30 days of the employee’s notice of a
disability and (2) no reasonable controversy existed regard-
ing the employee’s claim for benefits. Lagemann v. Nebraska
Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).
[13,14] a reasonable controversy may exist (1) if there is a
question of law previously unanswered by the appellate courts,
which question must be answered to determine a right or
liability for disposition of a claim under the Nebraska Workers’
Compensation act, or (2) if the properly adduced evidence
would support reasonable but opposite conclusions by the
Nebraska Workers’ Compensation Court concerning an aspect
of an employee’s claim for workers’ compensation, which con-
clusions affect allowance or rejection of an employee’s claim,
792 	278 NebRaSka RePORTS

in whole or in part. See Guico v. Excel Corp., 260 Neb. 712,
619 N.W.2d 470 (2000). Whether a reasonable controversy
exists under § 48-125 is a question of fact. Id.
In this case, the review panel reversed the trial judge’s award
of penalties, interest, and attorney fees. The review panel
determined that there was a reasonable factual controversy
whether manchester was owed temporary benefits after being
terminated from her employment at Drivers management,
where she could have been offered light-duty work but for the
fact that she was fired from her position owing to her actions
leading to the accident at issue. Referring to the record, the
review panel noted that manchester was cited for speeding,
and an employee of Drivers management testified that if
manchester had not been terminated from her employment,
Drivers management would have had light-duty work available
for her.
as previously stated in this opinion, compensability under
the Nebraska Workers’ Compensation act is determined by
§ 48-101, which provides:
When personal injury is caused to an employee by
accident or occupational disease, arising out of and in the
course of his or her employment, such employee shall
receive compensation therefor from his or her employer
if the employee was not willfully negligent at the time of
receiving such injury.
(emphasis supplied.)
In this case, the record shows that manchester was injured as
a result of the January 8, 2006, accident and that due to the inju-
ries manchester sustained, she was unable to work. although
Drivers management suggests on appeal that manchester was
willfully negligent, it did not allege or prove that the accident
was the result of willful negligence. Ordinary negligence is not
a defense to a workers’ compensation action, Neb. Rev. Stat.
§ 48-102 (Reissue 2004), and manchester’s entitlement to bene-
fits was not meaningfully at issue.
Further, in Guico, we explained that
“[t]he fact that an employer has terminated the employ-
ment of an employee, whose ability to perform the work
for which he is fitted has been restricted due to an injury
maNCheSTeR v. DRIveRS mgmT. 	793
Cite as 278 Neb. 776

arising out of and in the course of his employment, does
not destroy the right of the employee to compensation for
the injury.”
260 Neb. at 723, 619 N.W.2d at 479 (quoting Aldrich v.
ASARCO, Inc., 221 Neb. 126, 375 N.W.2d 150 (1985)). This
was the law at the time of manchester’s accident. The law and
the record in this case support the trial judge’s determination
that there was no reasonable controversy whether manchester
was entitled to temporary benefits. We therefore reverse the
review panel’s reversal of the trial judge’s award of waiting-
time penalties, interest, and attorney fees and reinstate the trial
judge’s award.
CONCLUSION
With respect to the cross-appeal, we conclude that the Social
Security administration’s prior determination of total disability
did not preclude manchester from receiving workers’ com-
pensation benefits for her work-related injury. Further, there
was sufficient evidence in the record to support the Workers’
Compensation Court’s decision that there was a causal link
between manchester’s accident and her depression and agora-
phobia. The award of TTD benefits for the period of January 8,
2006, through July 29, 2007, was not clearly wrong.
With respect to the appeal, we conclude that there was no
reasonable controversy whether manchester was entitled to
benefits for the period of February 7 through august 18, 2006,
and conclude that the review panel erred when it reversed the
award of waiting-time penalties, interest, and attorney fees and
we, therefore, reverse the review panel in this regard and order
the reinstatement of the trial judge’s award.
affiRmed in paRt, and in paRt
ReveRsed with diRections.
794 	278 NebRaSka RePORTS