Pearson v. Archer-Daniels-Midland Milling Co.

which is supported by sufficient evidence.31 Because the evi-
dence was sufficient to support McGee’s conviction, any error
at the plea in abatement stage was cured.
[14] McGee assigns that the district court erred in refusing
her bond pending her appeal. But this assignment of error is
not argued in her brief. Errors that are assigned but not argued
will not be addressed by an appellate court.32 We therefore do
not reach this assignment of error.
CONCLUSION
For all of the foregoing reasons, we affirm McGee’s convic-
tion and sentence.
A ffirmed.
H eAvicAn, C.J., not participating.
31 State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).
32 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006); State v.
Conover, 270 Neb. 446, 703 N.W.2d 898 (2005).
THomAs L. P eArson, APPeLLAnT, v.
A rcHer-dAnieLs -midLAnd miLLing
comPAny, APPeLLee .
803 N.W.2d 489
Filed September 23, 2011. 	No. S-10-1142.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the compensation court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in excess of its pow-
ers; (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. ____: ____. 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 finding of the trial judge who conducted the original hearing;
the findings of fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
3. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
400 	282 NEBrASkA rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

4. Workers’ Compensation. A work-related injury need not result in permanent
disability in order for medical treatment to be awarded. the question is simply
whether treatment is necessary to relieve or cure the injury.
5. Final Orders: Intent. the meaning of a decree as a matter of law is determined
only from the four corners of the decree.
Appeal from the Workers’ Compensation Court. Affirmed
in 	part, 	and 	in 	part 	reversed 	and 	remanded 	for 	further
proceedings.
Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law
Firm, p.C., L.L.O., for appellant.
Jason A. kidd and Brynne E. Holsten, of Engles, ketcham,
Olson & keith, p.C., for appellee.
H eAvicAn, 	c.J., 	WrigHT, 	connoLLy, 	gerrArd, 	sTePHAn,
mccormAck , and miLLer-L ermAn, JJ.
H eAvicAn, c.J.
INtrODUCtION
the appellant, thomas L. pearson, was injured in the course
of 	his 	employment 	with 	Archer-Daniels-Midland 	Milling
Company (ADM). the Workers’ Compensation Court entered
an award granting pearson, among other benefits, certain future
medical expenses. pearson subsequently had total knee replace-
ment and sought reimbursement from ADM for those expenses
as well as for expenses relating to a back injury. ADM declined
to pay the expenses. pearson then filed a motion to compel pay-
ment. A further award was entered denying pearson’s motion
with respect to the knee replacement, but ordering ADM to
pay expenses relating to the treatment of the back injury. the
further award applied the Workers’ Compensation Court’s fee
schedule to payments for the back injury, which had previously
been paid by pearson’s health insurer. Following affirmance by
the Workers’ Compensation Court review panel, pearson filed
this appeal. We affirm in part, and in part reverse and remand
for further proceedings.
FACtUAL BACkGrOUND
pearson was struck by a forklift while at work at an ADM
facility on October 27, 2006. He filed a claim for workers’
pEArSON v. ArCHEr-DANIELS-MIDLAND MILLING CO. 	401
Cite as 282 Neb. 400

compensation. A trial was held on June 16, 2008, with an
award entered on August 29.
In the award, the workers’ compensation trial court con-
cluded that pearson suffered an accident arising out of and
in the course of his employment with ADM and that pearson
suffered injury to his right knee and lower back. In so finding,
the trial court concluded that while there was an aggravation
of pearson’s preexisting arthritic condition, such aggravation
was not permanent, and that pearson had reached maximum
medical improvement (MMI) on April 14, 2008, for the knee
injury. According to the award, MMI was reached on August
22, 2007, regarding the back injury. the award granted both
temporary total disability benefits and permanent disability
benefits, as well as future medical benefits. Vocational rehabili-
tation benefits were denied.
regarding future medical benefits, paragraph V of the August
29, 2008, award stated:
In reviewing the evidence presented at trial, the Court
observes that the parties have not stipulated to an award
of future medical benefits. With respect to [pearson’s]
right knee injury, the Court is persuaded despite its
earlier findings of a lack of permanency, restrictions, or
impairment rating that future medical treatment will be
reasonably required. In reaching this opinion, the Court
rejects the conclusions of Dr. Gammel that no such treat-
ment will be necessary . . . . rather, the offering by Dr.
Bozarth is more persuasive. In a report dated April 14,
2008, and addressed to [pearson’s] counsel, Dr. Bozarth
opined that [pearson] will need future medical treatment
to his right knee owing to his injury, degenerative arthro-
sis, and obesity. Specifically, he indicated that periodic
injections of medications to alleviate pain as well as oral
anti-inflammatory medications and an unloader brace
would likely be required . . . . [the fact that there was no
finding of permanent disability does not serve ipso facto
to prohibit an award of future medical benefits. See Hand
v. Flexcon Co., Inc., No. A-06-709, 2007 Neb. App.
Lexis 37 (not designated for publication)].
402 	282 NEBrASkA rEpOrtS

With respect to [pearson’s] low back injury, the Court
is similarly persuaded by the evidence. Dr. Gammel indi-
cated that . . . pearson would likely need to continue to
take over the counter anti-inflammatory medications and
engage in home physical therapy . . . . Dr. Bozarth also
indicated his belief that medications would be necessary
for the treatment of [pearson’s] low back injury as well as
conditioning programs to maintain his fitness . . . .
thus, the Court is satisfied that [pearson] has carried
his burden of proof and persuasion and is, thus, entitled
to an award of future medical benefits. Any future medi-
cal treatment received by [pearson] which falls under the
provisions of § 48-120, and which otherwise satisfies all
necessary foundational elements thereto, should be pro-
vided at the expense of [ADM].
the award then ordered the continued payment of “future
medical care and treatment as may be reasonably necessary
as a result of the accident and injuries sustained as memorial-
ized in paragraph V” of the award. there was no appeal from
this award.
On June 19, 2009, pearson underwent total right knee
replacement. Following that surgery, he was assigned a 37-
percent impairment rating. pearson also underwent several
spinal injections for his low-back injury. pearson submitted all
of these medical bills to ADM, which declined to pay them.
pearson then moved to compel payment, and asked also that
the award be modified to reflect the 37-percent impairment to
the right knee.
the trial court entered a further award that denied the
motion to compel payment with respect to the knee injury and
consequently declined pearson’s motion to modify the award
to reflect any impairment. the trial court concluded that the
issue of knee replacement was known at the time of the origi-
nal trial:
Having made that determination, the Court observes
further that it did, indeed, find that [pearson’s] knee
injury was a temporary exacerbation of a pre-existing
knee condition . . . . [MMI] was found and no award
pEArSON v. ArCHEr-DANIELS-MIDLAND MILLING CO. 	403
Cite as 282 Neb. 400

of permanent disability benefits was provided as to the
right knee injury. While the Court did award certain
future medical expenses for the temporary aggravation of
[pearson’s] right knee, it cannot be denied that MMI was
also declared. While [pearson’s] request for right knee
replacement surgery was not expressly denied, it most
assuredly was implied. Otherwise, there would be no con-
sistency of thought in declaring [pearson] to have reached
MMI with no resulting permanent impairment. restated,
if the Court had meant to award [pearson] knee replace-
ment surgery in its award of future medical benefits, there
would have been no need to address the subject of perma-
nency of that injury in its original Award. Consequently,
to the extent that [pearson] argues that the original Award
served to provide a basis for the compensability of the
knee replacement surgery he underwent in June of 2009,
the Court rejects [pearson’s] contention.
While the knee replacement was not found to be compen-
sable, the trial court did order that ADM pay for the spinal
injections, because they were part of “reasonable and neces-
sary” future medical treatment.
Finally, the further award addressed a “dispute over whether
or not the fee schedule audits submitted by [ADM] ought to
be applied to any outstanding medical bills deemed compen-
sable.” the trial court cited Neb. rev. Stat. § 48-120(1)(e)
(reissue 2010) and concluded that outstanding amounts should
be reimbursed with all applicable fee schedule reductions. the
trial court therefore ordered ADM to “pay” certain medical
expenses. the further award then specifically listed the pro-
vider or supplier and the expense that needed to be paid.
pearson appealed the trial court’s further award. the review
panel affirmed the award, and pearson appeals to this court.
ASSIGNMENtS OF ErrOr
On appeal, pearson assigns, restated and consolidated, that
the review panel erred in (1) affirming the trial court’s con-
clusion that the original award did not provide for reimburse-
ment of pearson’s knee replacement surgery and associated
expenses and (2) failing to hold that ADM should be ordered
404 	282 NEBrASkA rEpOrtS

to directly reimburse third-party payors without fee sched-
ule reduction.
StANDArD OF rEVIEW
[1] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside only upon the grounds
that (1) the compensation court acted without or in excess of
its powers; (2) the judgment, order, or award was procured
by fraud; (3) there is not sufficient competent evidence in the
record to warrant the making of the order, judgment, or award;
or (4) the findings of fact by the compensation court do not
support the order or award.1
[2] 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 finding of the trial
judge who conducted the original hearing; the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.2
[3] With respect to questions of law in workers’ compen-
sation cases, an appellate court is obligated to make its own
determination.3
ANALYSIS
Did Original Award Deny Knee Replacement?
pearson first argues that the original award’s provision for
future medical expenses should include his total right knee
replacement surgery. the trial court disagreed, and the review
panel affirmed the award. We reverse the decision of the
trial court.
In this case, the original award entered by the trial judge
provided that
[pearson] has carried his burden of proof and persuasion
and is, thus, entitled to an award of future medical bene-
fits. Any future medical treatment received by [pearson]
which falls under the provisions of § 48-120, and which
1 Neb. rev. Stat. § 48-185 (reissue 2010).
2 Tapia-Reyes v. Excel Corp., 281 Neb. 15, 793 N.W.2d 319 (2011).
3 Id.
pEArSON v. ArCHEr-DANIELS-MIDLAND MILLING CO. 	405
Cite as 282 Neb. 400

otherwise satisfies all necessary foundational elements
thereto, should be provided at the expense of [ADM].
Under the plain language of this award, pearson is entitled to
“[a]ny future medical treatment . . . which falls under the pro-
visions of § 48-120.” thus, if pearson’s knee replacement was
due to his compensable injury, then it should be provided at
ADM’s expense. But in this case, pearson was not permitted to
present any evidence that might support his assertion that the
knee replacement was due to his compensable injury.
the trial judge concluded that the original award impliedly
rejected knee replacement, because the necessity of such
replacement had been presented at the time of that award and
because the original award found that MMI had been reached
and no permanent disability suffered. We are not persuaded by
these contentions, however.
With respect to the former, we note that the trial judge stated
in the original award that pearson’s treating physician said that
a knee replacement would be “‘indicated.’” We read this as
suggesting that knee replacement was a possibility for pearson
after weight loss, including possible bariatric surgery. thus,
while pearson might eventually benefit from knee replace-
ment, he was not yet ready for it. In other words, the evidence
was insufficient to establish at the time of the award that knee
replacement would at that time “relieve pain or promote and
hasten the employee’s restoration to health and employment”
within the meaning of § 48-120(1)(a). But, there was no basis
at that time for the court to rule one way or the other.
[4] As for the fact that pearson had reached MMI and was
not found to have suffered a permanent injury, such is also not
persuasive. Obviously, a work-related injury need not result
in permanent disability in order for medical treatment to be
awarded. the question is simply whether treatment is necessary
to relieve or cure the injury.4 An injury could cause disfigure-
ment or pain and require medical treatment, yet produce no
permanent loss of function or earning capacity. relief from the
4 See Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978)
(superseded by statute on other grounds as stated in Koterzina v. Copple
Chevrolet, 1 Neb. App. 1000, 510 N.W.2d 467 (1993)).
406 	282 NEBrASkA rEpOrtS

symptoms of an injury is compensable under § 48-120(1)(a),
regardless of whether those symptoms produce a permanent
physical impairment or disability.
Nor are we convinced that the fact that the same judge
entered both the original order and the further award is in
any way relevant to this court’s ultimate determination. We
have explained:
“If a judgment can mean one thing one day and some-
thing else on another day, there would be no reason to
suppose that the litigation had been set at rest. the same
must be said if the judgment can mean one thing to one
judge and something else to another judge. All are bound
by the original language used, and all ought to interpret
the language the same way. . . . the judge who tried the
case and who ought to know what he meant to say, after
the time for appeal, etc., has passed cannot any more
change or cancel one word of the judgment than can any
other judge.”5
[5] So, we have repeatedly held that
neither what the parties thought the judge meant nor what
the judge thought he or she meant, after time for appeal
has passed, is of any relevance. What the decree, as it
became final, means as a matter of law as determined
from the four corners of the decree is what is relevant.6
In this case, it does not matter that the judge who entered
the “further award” of April 26, 2010, was the same judge
who had entered the August 29, 2008, award. We are required
to determine the effect of the August 29 award as a matter of
law from its four corners, and the judge’s belief about what he
5 Neujahr v. Neujahr, 223 Neb. 722, 726, 393 N.W.2d 47, 49 (1986). Accord
Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).
6 Neujahr, supra note 5, 223 Neb. at 728, 393 N.W.2d at 51. Accord,
Universal Assurors Life Ins. Co. v. Hohnstein, 243 Neb. 359, 500 N.W.2d
811 (1993); Metropolitan Life Ins. Co. v. Beaty, 242 Neb. 169, 493 N.W.2d
627 (1993); Kerndt, supra note 5. See, also, Klinginsmith v. Wichmann,
252 Neb. 889, 567 N.W.2d 172 (1997), overruled on other grounds, Smeal
Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010);
Bokelman v. Bokelman, 202 Neb. 17, 272 N.W.2d 916 (1979).
pEArSON v. ArCHEr-DANIELS-MIDLAND MILLING CO. 	407
Cite as 282 Neb. 400

“impliedly rejected” in the August 29 award cannot change the
fact that the award expressly did not reject it.
Given the broad provision for future medical treatment in
the original award, and the complete absence of any language
in the award denying knee replacement, the original award
simply cannot be read as denying pearson’s knee replacement.
this is not to say that the knee replacement is necessarily
compensable. rather, the award should be enforced according
to its terms—pearson was awarded “[a]ny future medical treat-
ment received by [pearson] which falls under the provisions of
§ 48-120, and which otherwise satisfies all necessary founda-
tional elements thereto . . . .” We therefore reverse the decision
of the Workers’ Compensation Court insofar as it found that
the original order denied knee replacement, and we remand this
cause for a factual determination as to whether pearson’s knee
replacement falls under the provisions of § 48-120.
Is Reimbursement to Third-Party Payor
Subject to Fee Schedule?
In addition to arguing that his knee replacement was com-
pensable, pearson also argues that the trial court and review
panel erred in finding that the fee schedule should be appli-
cable to medical expenses already paid by his health insurer.
We begin with some background. In addition to the knee
replacement, pearson had steroid spinal injections for pain
management with regard to his low-back injury, which was
ruled compensable in the original award. ADM refused to pay
for those injections. the trial court, in its further award, found
that the injections were compensable and ordered ADM to pay
for them. pearson argues that because those bills have already
been paid by his health insurer, that insurer should be entitled
to reimbursement for the full amount it paid without applica-
tion of the fee schedule. the trial court disagreed and found
that the fee schedule was applicable.
Subsections (1) and (8) of § 48-120 are both relevant to this
discussion. Section 48-120(1)(a) provides that an “employer
is liable for all reasonable medical, surgical, and hospital serv-
ices.” Subsection (1)(b) requires the compensation court to
408 	282 NEBrASkA rEpOrtS

establish a schedule of fees for the services from (1)(a). And
§ 48-120(1)(e) provides:
the provider or supplier of such services shall not collect
or attempt to collect from any employer, insurer, govern-
ment, or injured employee or dependent or the estate of
any injured or deceased employee any amount in excess
of (i) the fee established by the compensation court for
any such service . . . .
Finally, § 48-120(8) provides:
the compensation court shall order the employer to make
payment directly to the supplier of any services provided
for in this section or reimbursement to anyone who has
made any payment to the supplier for services provided
in this section. No such supplier or payor may be made
or become a party to any action before the compensa-
tion court.
(Emphasis supplied.)
In 	its 	further 	award, 	the 	trial 	court 	concluded 	that
§ 48-120(1)(e) plainly requires the use of the fee schedule
and that there was no conflict between it and § 48-120(8). the
review panel affirmed, but noted that the trial court did not actu-
ally order payment to the third-party insurer. Instead, according
to the review panel, the trial court simply ordered ADM to pay
certain medical expenses. As such, the review panel noted that
after receiving payment from ADM, the medical provider or
supplier should then reimburse the insurance company. And
because the trial court ordered payment and not reimburse-
ment, the distinction raised by pearson is not at issue.
We agree with the trial court that subsections (1)(e) and
(8) of § 48-120 are not inconsistent. pearson is correct that
§ 48-120(1)(e) does not mention such third parties, while
§ 48-120(8) does. But the purpose behind § 48-120(1)(e) is to
prohibit a supplier or provider from charging more than the fee
schedule permits. Because a third party in this instance is not
providing or supplying services and thus is not charging for
them, it is unnecessary to prohibit one from charging more than
the fee schedule, and thus unnecessary to include third parties
in that subsection.
pEArSON v. ArCHEr-DANIELS-MIDLAND MILLING CO. 	409
Cite as 282 Neb. 400

And § 48-120(8) mentions third parties only insofar as it
gives the compensation court the power to order a third party
to be reimbursed if it pays a provider or supplier. pearson
expresses concern that a third party might pay an amount
higher than the fee schedule initially and, if reimbursed only
according to the fee schedule, might not be reimbursed for the
full amount paid. We find this possibility mitigated by the pro-
hibition in § 48-120(1)(e) against providers or suppliers charg-
ing more than the fee schedule allows.
Because we conclude that § 48-120(1)(e) and (8) can be
read consistently, we conclude that the trial court did not err
in applying the fee schedule to any reimbursement to a third
party. We therefore find pearson’s second assignment of error
to be without merit.
CONCLUSION
the decision of the review panel is affirmed in part, and in
part reversed and remanded for further proceedings.
A ffirmed in PArT, And in PArT reversed And
remAnded for furTHer Proceedings.
sTATe of nebrAskA ex reL. counseL for disciPLine of
THe nebrAskA suPreme courT, reLATor , v.
roberT J. remAck , resPondenT.
802 N.W.2d 887
Filed September 23, 2011. 	No. S-11-551.
Original action. Judgment of disbarment.
H eAvicAn, 	c.J., 	WrigHT, 	connoLLy, 	gerrArd, 	sTePHAn,
mccormAck , and miLLer-L ermAn, JJ.
P er curiAm.
INtrODUCtION
this case is before the court on the voluntary surrender of
license filed by respondent, robert J. remack, on July 1, 2011.
the court accepts respondent’s surrender of his license and
enters an order of disbarment.
410 	282 NEBrASkA rEpOrtS