Damme v. Pike Enters.

620 	289 NEBRASKA REPORTS
the domestic abuse theory, and she cannot now change to a
harassment theory. We conclude that Linda’s cross-appeal
lacks merit.
CONCLUSION
The district court incorrectly granted a domestic abuse pro-
tection order, because William’s conduct did not fit within the
statutory definition of “abuse” under § 42-903(1). Allowing
Linda to shift to a harassment theory on appeal would violate
fundamental principles of law. We reverse the judgment of the
district court and remand the cause with directions to deny the
requested domestic abuse protection order.
R eveRsed and Remanded with diRections.
PatRicia m. damme, aPPellee, v.
P ike enteRPRises, inc., aPPellant.
856 N.W.2d 422
Filed December 5, 2014. 	No. S-14-304.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ 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.
2. Workers’ Compensation: Evidence: Appeal and Error. In testing the suffi-
ciency of the evidence to support the Workers’ Compensation Court’s findings, an
appellate court considers the evidence in the light most favorable to the success-
ful party. The appellate court resolves every controverted fact in the successful
party’s favor and gives that party the benefit of every inference that is reasonably
deducible from the evidence.
3. Workers’ Compensation: Appeal and Error. The Workers’ Compensation
Court’s factual findings have the effect of a jury verdict, and an appellate court
will not disturb them unless they are clearly wrong.
4. ____: ____. An appellate court independently reviews questions of law decided
by a lower court.
5. Workers’ Compensation. Whether to recognize a nonstatutory defense in a
workers’ compensation case presents a question of law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:34 AM CST

DAMME v. PIKE ENTERS. 	621
Cite as 289 Neb. 620
6. Workers’ Compensation: Proof. In a workers’ compensation case involving a
preexisting condition, the claimant must prove by a preponderance of evidence
that the claimed injury or disability was caused by the claimant’s employment
and is not merely the progression of a condition present before the employment-
related incident alleged as the cause of the disability.
7. Workers’ Compensation. A workers’ compensation claimant can recover ben-
efits when an injury, arising out of and in the course of employment, combines
with a preexisting condition to produce disability, even if no disability would
have occurred absent the preexisting condition. The “lighting up” or acceleration
of a preexisting condition by an accident is a compensable injury.
8. ____. Causation of an injury or disability presents an issue of fact.
9. Workers’ Compensation: Expert Witnesses. Unless an injury’s nature and
effect are plainly apparent, a workers’ compensation claimant must establish
the causal relationship between the employment and the injury or disability by
expert opinion.
10. ____: ____. Although a claimant’s medical expert does not have to couch his or
her opinion in the magic words “reasonable medical certainty” or “reasonable
probability,” the opinion must be sufficient to establish the crucial causal link
between the claimant’s injuries and the accident occurring in the course and
scope of the claimant’s employment.
11. 	Expert Witnesses: Physicians and Surgeons: Appeal and Error. An appellate
court examines the sufficiency of a medical expert’s statements from the expert’s
entire opinion and the record as a whole.
12. Workers’ Compensation: Expert Witnesses: Physicians and Surgeons. The
Workers’ Compensation Court is the sole judge of the credibility and weight
to be given medical opinions, even when the health care providers do not give
live testimony.
13. ____: ____: ____. Resolving conflicts within a health care provider’s opinion
rests with the Workers’ Compensation Court, as the trier of fact.
14. Workers’ Compensation: Appeal and Error. When the record presents nothing
more than conflicting medical testimony, an appellate court will not substitute its
judgment for that of the Workers’ Compensation Court.
15. Workers’ Compensation. Under the Nebraska Workers’ Compensation Act, both
temporary and total disability benefits are awarded for diminished employability
or impaired earning capacity and do not depend on a finding that the claimant
cannot be placed with the same employer or a different one.
16. ____. The level of a worker’s disability depends on the extent of diminished
employability or impairment of earning capacity, and does not directly correlate
to current wages.
17. Workers’ Compensation: Torts. The Nebraska Workers’ Compensation Act
constitutes a compromise between the rights of employers and employees. Under
the act, employees give up the right to complete compensation that they might
recover under tort law in exchange for no-fault benefits that they quickly receive
for most economic losses from work-related injuries.

622 	289 NEBRASKA REPORTS
18. Workers’ Compensation: Legislature: Public Policy. Because the Nebraska
Workers’ Compensation Act reflects a legislative balancing of rights, defenses
that defeat a worker’s right to seek or receive disability benefits for a work-
related injury are a matter of public policy that the Legislature should decide.
19. Workers’ Compensation: Prisoners: Proof. If a workers’ compensation claim-
ant can prove a loss of earning capacity, his or her incarceration after sustaining
a compensable injury is not an event that bars the claimant’s receipt of disability
benefits, absent a statute requiring that result.
20. Workers’ Compensation. Total disability exists when a workers’ compensation
claimant is unable to earn wages in either the same or a similar kind of work he
or she was trained or accustomed to perform or in any other kind of work which
a person of the claimant’s mentality and attainments could perform.
21. Workers’ Compensation: Testimony. Although medical restrictions or impair-
ment ratings are relevant in determining a claimant’s disability, the Workers’
Compensation Court can rely on a claimant’s testimony regarding his or her own
limitations to determine the extent of the claimant’s disability.
Appeal from the Workers’ Compensation Court: J. michael
F itzgeRald, Judge. Affirmed.
Christopher A. Sievers, of Timmermier, Gross & Prentiss,
for appellant.
Elaine A. Waggoner, of Waggoner Law Office, for appellee.
heavican, c.J., wRight, connolly, stePhan, mccoRmack,
milleR-leRman, and cassel, JJ.
connolly, J.
SUMMARY
This workers’ compensation case presents an issue of first
impression in Nebraska: whether a claimant’s incarceration
after sustaining a compensable injury should bar the claimant
from recovering temporary total disability benefits while she
is incarcerated. The appellant, Pike Enterprises, Inc. (Pike),
also argues that the court erred in finding a causal connection
between the appellee’s alleged injury in October 2009 and her
back surgery in January 2013, and in awarding future medi-
cal benefits.
We agree with the court that after a claimant sustains a
compensable injury resulting in total disability, her later incar-
ceration does not bar her receipt of benefits. The evidence suf-
ficiently supported the court’s conclusion that Pike sustained

DAMME v. PIKE ENTERS. 	623
Cite as 289 Neb. 620
a new injury that aggravated an existing back condition and
caused her symptoms of constant pain and that her surgery in
January 2013 was necessary to treat the injury. We affirm the
trial court’s award.
BACKGROUND
histoRical Facts
The appellee, Patricia M. Damme, has a history of degenera-
tive disk disease. It started in 1995, when her lower back prob-
lems required a lumbar laminectomy (removal of the spongy
material between the disks) at the L4-5 level. She also has a
history of mental health issues and illicit drug use, for which
she has been regularly treated by a psychiatrist.
In 2001, boxes fell on her while working on a job, injur-
ing her back and neck. This injury required a cervical diskec-
tomy and fusion at the C5-6 level. In a lump-sum settlement,
the employer agreed to pay her for an 8-percent whole-body
permanent partial disability. In 2002, she began receiving dis-
ability benefits from Social Security because of her psychiatric
problems. She said she continued to work because keeping
busy helped her deal with her psychiatric problems.
In January 2004, a semitrailer truck hit her vehicle. At the
hospital, she reported mild tenderness in her lower quadrant.
The hospital physician reported mild degenerative disk disease
above and below her C5-6 fusion but no complications from
the accident.
In 2006, after a fall at a store, Damme experienced increased
neck pain and pain in her lower back that radiated into her left
thigh. An MRI of her cervical and lumbar spine showed that
the cervical fusion was intact and that her lumbar spine had
some degenerative disk disease, but that the spacing between
the disks was within the normal range. The physician did not
recommend surgical intervention but referred her to a physi-
cal therapist.
In 2008, while working for her previous employer, she
tripped and fell against a wall, experiencing neck pain. About
a month later, while reaching up, she experienced severe neck
pain, which improved with time but remained constant and
variable in intensity. The cause of her neck and shoulder pain

624 	289 NEBRASKA REPORTS
was not clear, and she was referred to a physical therapist and
released to return to work with some restrictions. In 2009,
her physician determined that she had sustained a 5-percent
impairment of her right upper extremity.
In June 2009, Damme began working for Pike, which owns
a McDonald’s restaurant. On October 15, she hurt her back
at the restaurant while carrying bags. When she bent over to
put the bags on a table, she felt a pop in her back and a sear-
ing pain. At first, she could not stand up. She said she had
never experienced pain like that with any of her previous back
problems. She went home to apply ice to her back and went
to the hospital later that night with burning pain. The hospital
physician assessed her with a likely lumbosacral sprain. She
was given an anti-inflammatory shot and prescribed a muscle
relaxant and pain medication.
A few days later, Damme called her nurse practitioner about
severe back pain and was prescribed hydrocodone. An x ray
of her lumbar spine showed mild degenerative changes and a
significant loss of disk height at the L4-5 level, which was a
“stark progression” compared to her 2006 x rays. An MRI of
the L4-5 level showed no intervertebral disk fluid. She was
referred to a surgeon who noted that she was already taking a
“fairly substantial dose of narcotics” and referred her to a pain
consultant before investigating whether to perform surgery. On
November 4, 2009, the pain consultant assessed Damme as
having a herniated disk, multilevel degenerative disk disease
in her lumbosacral spine, and lumbar back pain. He prescribed
OxyContin for pain and physical therapy. On November 29,
her primary care physician continued the OxyContin prescrip-
tion for pain. On December 8, Damme returned to the pain
consultant because her back pain was worse and radiating into
her left buttock and thigh.
At some point, a managed care organization referred Damme
to James Mayer, M.D., for a second opinion regarding her
treatment. Mayer wrote a report on December 1, 2009, after
examining Damme and her treatment history. In response to
questions from the referring organization, Mayer reported that
to the best of his medical knowledge, Damme’s October 15
injury aggravated her degenerative joint disease of the spine

DAMME v. PIKE ENTERS. 	625
Cite as 289 Neb. 620
and that her employment was a contributing cause of her
symptoms. He believed that the aggravation was temporary but
that she had not yet reached maximum medical improvement.
He stated that it was too early to determine whether she had
sustained any permanent impairment. He also expressed con-
cerns about the amount of narcotics she was taking and did not
want to manage her care because of her “psychosocial issues”
and previous history of illicit drug use. He recommended
physical therapy and tapering her off narcotics.
In January 2010, the surgeon saw Damme again. He dis-
cussed his concerns about an operative fusion, but he believed
a diskogram might help him to determine the source of her
pain. On January 18, a different physician reviewed the
surgeon’s records. He believed that a lumbar fusion was a
possible treatment based on the MRI results. But he first
referred Damme to another physician for an assessment of
nonsurgical treatments. In April, that physician recommended
facet blocks, which are injections of medications that numb
pain in the vertebral joints. But a facet block did not relieve
Damme’s pain.
In February 2010, her primary care physician dismissed her
from his care because he believed she was selling her narcotic
medications. She continued to see a psychiatrist. In March,
she was seen by a different physician who noted that because
of her low pain threshold and psychiatric problems, locating
the source of her pain and treating her with injections would
be difficult. He noted that these same problems, coupled with
her smoking, made the outcome of a surgery unpredictable.
He said he would recommend surgery only if all her previous
health care providers agreed surgery was reasonable.
In May 2010, Pike had Damme examined by Michael
O’Neil, 	M.D. 	O’Neil 	reviewed 	her 	medical 	records 	and
reported to Pike’s attorney that “it is more probable than not
(with reasonable medical certainty) that . . . Damme did sus-
tain an exacerbation or a temporary worsening of preexisting
symptomatic degenerative lumbar disc disease at L4-L5.” But
he could not separate what portion of her current low-back
pain was the result of the October 15, 2009, injury from the
natural progression of the disease. He did not believe she had

626 	289 NEBRASKA REPORTS
any permanent impairment resulting solely from the injury.
He stated that ordinarily, she would be a good candidate for
fusion surgery. But like her other physicians, he was reluctant
to recommend surgery because of her psychiatric problems and
use of narcotics.
In August 2010, however, O’Neil revised his opinion. He
again opined that Damme’s work-related injury resulted in an
exacerbation or temporary worsening of her disk disease. But
he now believed it was more probable than not that her preex-
isting conditions had caused her pain and not a minor incident
at work. He further opined that she needed narcotic medica-
tions because of her drug dependency and not because of her
alleged back injury. He concluded that Damme had reached
maximum medical improvement on October 15, 2009, the date
of her injury.
In January 2011, Damme was arrested for unspecified rea-
sons. She stated that she stopped taking her psychiatric medi-
cations because of the opiates she was taking, which caused
her to get into trouble. She was committed to the Lincoln
Regional Center for 6 months because she was not competent
to stand trial. After that, she was incarcerated from June 17
to December 28, 2011. After she was released, she went to
a new physician for pain management, who referred her to a
new surgeon.
In July 2012, the new surgeon, H.R. Woodward, M.D.,
examined Damme. Woodward noted that since Damme’s work
injury, she had reported experiencing constant low-back pain
that intermittently radiated down her left leg to her knee. He
noted that her October 2009 x rays had shown nearly a com-
plete loss of disk space at the L4-5 level. Woodward stated that
Damme had “an obvious pathology at the L4-5 disc that is in
all likelihood causing her present symptoms.” He noted that a
diskogram performed in November 2010 had shown a mark-
edly abnormal L4-5 disk with concordant pain. He concluded
that nonsurgical treatments had been unsuccessful and recom-
mended a spinal fusion. He told Damme that he would perform
the surgery if she completely stopped smoking and reduced her
narcotic use.

DAMME v. PIKE ENTERS. 	627
Cite as 289 Neb. 620
Woodward performed the surgery in January 2013, which
was a success. Within 2 months, her leg pain was com-
pletely gone, and within 3 months, her back pain was mini-
mal and occasional. In June, Damme reported that she had
no pain. She testified that her back felt as good as it had
before the October 2009 injury. On June 17, 2013, Woodward
released her to work without restrictions, which date the
court interpreted to be when Damme reached maximum medi-
cal improvement.
couRt’s oRdeR
In its order, the court found that there was “no question
that [Damme] injured her low back in the accident on October
15, 2009.” The court noted that before Damme’s 2009 injury,
she was treated many times for her back problems but that
except for one notation when she was treated in June 2006
for pain after falling, no physicians had reported prescribing
her narcotic pain medications. The court implicitly found that
she consistently needed such medications only after the 2009
injury and noted that the fusion surgery was a success. It exten-
sively reviewed her medical records and concluded that all the
surgeons who had examined Damme believed surgery would
have been a reasonable treatment except for her psychiatric
problems and use of narcotics.
Additionally, the court implicitly found that Pike delayed
Damme’s 	surgery 	by 	stopping 	her 	medical 	benefits 	after
O’Neil’s examination, stating that Pike “denied medical care
after the examination by Dr. O’Neil. [Damme] was unable to
obtain additional medical care until May of 2012 which ulti-
mately led to a referral . . . to Dr. Woodward.” The court deter-
mined that the record as a whole was sufficient to show that
Damme’s January 2013 surgery was reasonable and necessary
to treat her 2009 injury.
The court awarded Damme temporary total disability ben-
efits from November 9, 2009, through June 17, 2013, and
future medical care as required by Neb. Rev. Stat. § 48-120
(Cum. Supp. 2014). It denied Damme’s claim for penalties
and credited Pike for the payments it had made to Damme. It

628 	289 NEBRASKA REPORTS
rejected Pike’s argument that Damme could not receive ben-
efits during her incarceration.
ASSIGNMENTS OF ERROR
Pike assigns that the court erred in (1) finding a causal rela-
tionship between the October 2009 “incident” and the January
2013 surgery, (2) not considering whether the January 2013
surgery was fair and reasonably necessary to treat Damme, (3)
awarding temporary total disability benefits, and (4) awarding
nonspecified future medical benefits.
STANDARD OF REVIEW
[1] A judgment, order, or award of the Workers’ 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 evi-
dence in the record to warrant the making of the order, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award.1
[2-5] In testing the sufficiency of the evidence to support
the Workers’ Compensation Court’s findings, we consider the
evidence in the light most favorable to the successful party. We
resolve every controverted fact in the successful party’s favor
and give that party the benefit of every inference that is reason-
ably deducible from the evidence.2 The court’s factual findings
have the effect of a jury verdict, and we will not disturb them
unless they are clearly wrong.3 But we independently review
questions of law decided by a lower court.4 Whether to recog-
nize a nonstatutory defense in a workers’ compensation case
presents a question of law.5
1 Potter v. McCulla, 288 Neb. 741, 851 N.W.2d 94 (2014).
2 See Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828
N.W.2d 154 (2013).
3 See Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409
(2013).
4 Id.
5 See Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395
(2011).

DAMME v. PIKE ENTERS. 	629
Cite as 289 Neb. 620
ANALYSIS
causation
Pike argues that the record shows the October 2009 “inci-
dent” was not an injury but a “temporary symptom aggrava-
tion” of Damme’s preexisting back problems.6 It contends that
the court erred in finding that Damme sustained a work-related
injury because she failed to present a medical expert’s opin-
ion establishing that the work-related event caused her injury.
Alternatively, Pike contends that the court erred in failing to
consider whether its evidence overcame the presumption that
the treatment was reasonable. It argues that Damme obtained
the surgery in an effort to obtain more narcotic prescriptions.
It points out that she obtained such a prescription after her
surgery and that before Woodward agreed to perform the sur-
gery, other physicians had refused to do so because of her use
of narcotics.
Damme argues that when their statements are read in con-
text, Mayer and O’Neil both concluded that Damme had sus-
tained an exacerbation of her preexisting degenerative disk
disease on October 15, 2009, at the L4-5 level of her lumbar
spine. And she argues that their opinions are sufficient to
show she sustained a work-related injury to her back and that
Woodward’s notes are sufficient to show the surgery was nec-
essary to treat her condition. We agree.
[6-8] In a workers’ compensation case involving a preexist-
ing condition, the claimant must prove by a preponderance of
evidence that the claimed injury or disability was caused by
the claimant’s employment and is not merely the progression
of a condition present before the employment-related incident
alleged as the cause of the disability.7 A workers’ compensa-
tion claimant can recover benefits when an injury, arising out
of and in the course of employment, combines with a preexist-
ing condition to produce disability, even if no disability would
have occurred absent the preexisting condition. The “‘lighting
6 Brief for appellant at 8.
7 Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405
(2003).

630 	289 NEBRASKA REPORTS
up’” or acceleration of a preexisting condition by an accident
is a compensable injury.8 And causation of an injury or disabil-
ity presents an issue of fact.9
[9-11] Unless an injury’s nature and effect are plainly
apparent, a workers’ compensation claimant must establish the
causal relationship between the employment and the injury or
disability by expert opinion.10 Although a claimant’s medical
expert does not have to couch his or her opinion in the magic
words “reasonable medical certainty” or “reasonable prob-
ability,” the opinion must be sufficient to establish the crucial
causal link between the claimant’s injuries and the accident
occurring in the course and scope of the claimant’s employ-
ment.11 We examine the sufficiency of a medical expert’s
statements from the expert’s entire opinion and the record as
a whole.12
Here, both Mayer and O’Neil reported that on October
15, 2009, Damme sustained an exacerbation of a preexisting
degenerative disk disease at the L4-5 level of her lumbar spine.
These statements are consistent with the surgeon’s findings
soon after the injury that Damme’s x rays showed a marked
loss of disk space at the L4-5 level. Mayer explicitly stated that
her employment was a contributing cause of her symptoms.
O’Neil reviewed Damme’s medical records and reported to
Pike’s attorney that “it is more probable than not (with reason-
able medical certainty) that . . . Damme did sustain an exac-
erbation or a temporary worsening of preexisting symptomatic
degenerative lumbar disc disease at L4-L5.”
[12-14] O’Neil confirmed this opinion even when he later
opined that Damme’s pain was probably the result of her pre-
existing back condition and not the October 2009 “incident.”
And as we know, the Workers’ Compensation Court is the
8 Id. at 139, 672 N.W.2d at 412.
9 See Potter, supra note 1.
10 See id.
11 See Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000).
12 Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999), citing
Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854
(1991).

DAMME v. PIKE ENTERS. 	631
Cite as 289 Neb. 620
sole judge of the credibility and weight to be given medical
opinions, even when the health care providers do not give live
testimony. Resolving conflicts within a health care provider’s
opinion also rests with the court, as the trier of fact.13 When
the record presents nothing more than conflicting medical tes-
timony, an appellate court will not substitute its judgment for
that of the compensation court.14
In his original opinion, O’Neil reported that he could not
determine how much of Damme’s symptoms could be attrib-
uted to the October 2009 injury. But a claimant is not required
to prove an apportionment of symptoms to an accident if the
evidence shows that the accident is a contributing cause of
the injury: “‘The law does not weigh the relative importance
of the two causes, nor does it look for primary and second-
ary causes; it merely inquires whether the employment was a
contributing factor. If it was, the concurrence of the personal
cause will not defeat compensability.’”15
It 	is 	true 	that 	both 	Mayer 	and 	O’Neil 	believed 	that
Damme’s exacerbation was temporary, but Mayer also stated
that Damme had not yet reached maximum medical improve-
ment. And the record shows that Damme’s medical provid-
ers could not successfully treat her constant pain symptoms
without surgical intervention, because her indefinite reliance
on narcotic pain medications was not a reasonable treatment
plan. Damme’s dependence on pain medications was the rea-
son that a new physician referred her to Woodward in 2012
to consider surgery. And the record shows that nonsurgical
treatment had been unsuccessful. In reviewing her medi-
cal records, Woodward specifically noted that after the 2009
injury, Damme’s diskogram showed nearly a complete loss of
disk space at the L4-5 level. He stated that she had “an obvi-
ous pathology at the L4-5 disc that is in all likelihood causing
her present symptoms.” He noted a markedly abnormal L4-5
13 See, Swanson, supra note 7; Frank, supra note 12.
14 Id.
15 Cox v. Fagen Inc., 249 Neb. 677, 683, 545 N.W.2d 80, 85 (1996). Accord
1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 4.04 (2014).

632 	289 NEBRASKA REPORTS
disk with concordant pain and concluded that nonsurgical
treatments had been unsuccessful and that surgery was indi-
cated. These conclusions were sufficient to link the necessity
of Damme’s surgery to the marked deterioration of her lumbar
disk spacing that physicians noted soon after her injury.
Finally, Pike incorrectly argues that the court failed to con-
sider whether Damme’s surgery resulted from her attempts to
obtain prescriptions for narcotic pain medications. The court
implicitly rejected this argument. And the evidence of her post-
surgery recovery supports that determination. We conclude the
court was not clearly wrong in finding that Damme had shown
she sustained a work-related injury that was a contributing
factor to her back injury and pain symptoms. It also was not
clearly wrong in finding that the January 2013 surgery was a
reasonable and necessary treatment.
temPoRaRy total disability
beneFits
Pike contends that the court erred in awarding Damme “heal-
ing benefits” from the time she was injured until Woodward
released her to return to work. Pike argues that she had no
record of work restrictions after December 2009 and that she
was not entitled to benefits during her incarceration. It argues
that the purpose of benefits during a healing period is to
replace the claimant’s wages.
Damme contends that the question is whether she sustained
a loss of earning power, which is a question of fact that the
court properly resolved. She testified that she unsuccessfully
tried to obtain employment with Pike and other employers and
that the reasonable inference from this evidence is that she
could not obtain employment in any field for which she was
suited. She further argues that the majority of courts have held
a subsequent incarceration does not affect a claimant’s eligibil-
ity for workers’ compensation benefits absent a statute to the
contrary. We agree.
[15] First, we clarify that no workers’ compensation stat-
ute provides a defense to paying disability benefits because
a claimant is incarcerated. And we reject Pike’s argument

DAMME v. PIKE ENTERS. 	633
Cite as 289 Neb. 620
that temporary disability benefits are intended to replace a
claimant’s wages while they are healing from an injury. It
is true that a court awards temporary disability benefits for
the period during which the employee cannot work because
he or she is submitting to treatment, convalescing, or suf-
fering from the injury.16 But under the Nebraska Workers’
Compensation Act, both temporary and permanent disabil-
ity benefits are awarded for diminished employability or
impaired earning capacity and do not depend on a finding
that the claimant cannot be placed with the same employer
or a different one:
[A] compensation court must generally determine only
two issues: (1) that the employee can no longer earn
wages doing the same kind of work for which he or she
was trained or accustomed to performing and (2) that
the employee lacks the skills needed to perform other
work that is within the employee’s physical limitations
and for which a stable market exists. . . . [V]ocational
specialists can assess an employee’s loss of earning
power by determining the type of work the employee
would have been qualified to do before the injury and
eliminating those occupations that are incompatible with
the employee’s postinjury restrictions. The specialist can
then use market surveys to determine the employee’s
loss of access to jobs in a labor market based on the
employee’s postinjury physical restrictions and voca-
tional impediments.17
[16] In short, the level of a worker’s disability depends on
the extent of diminished employability or impairment of earn-
ing capacity, and does not directly correlate to current wages.18
Although showing reduced wages and shortened work hours
can support a finding of diminished earning capacity, the
claimant can also prove disability through impairment ratings
16 See Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 N.W.2d 113
(2013).
17 Moyera, supra note 3, 284 Neb. at 976, 825 N.W.2d at 419.
18 Zwiener, supra note 16.

634 	289 NEBRASKA REPORTS
and the claimant’s lost access to jobs based on his or her physi-
cal restrictions and vocational impediments.19
For this reason, we have held that an alien’s illegal work
status does not preclude the worker from receiving permanent
disability benefits. In Moyera v. Quality Pork Internat.,20 we
rejected an argument that permanent total disability benefits
should be barred for illegal aliens because such claimants
cannot legally work in the United States. Because total dis-
ability benefits do not depend on a claimant’s ability to accept
employment, we held that the claimant’s illegal status did not
bar an award of indemnity for permanent total loss of earning
capacity.21 The same reasoning applies to an award of tempo-
rary total disability benefits.22
[17,18] Equally important, we have explained that the
Nebraska Workers’ Compensation Act constitutes a compro-
mise between the rights of employers and employees. Under
the act, employees give up the right to complete compensation
that they might recover under tort law in exchange for no-fault
benefits that they quickly receive for most economic losses
from work-related injuries.23 This loss of remedies is why we
broadly construe the act to accomplish its beneficent purpose
and why we overruled an earlier case in which we had adopted
a common-law misrepresentation defense.24 That is, because
the act reflects a legislative balancing of rights, defenses that
defeat a worker’s right to seek or receive disability benefits
for a work-related injury are a matter of public policy that the
Legislature should decide.25
19 See Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125
(2002), citing Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112
(1996).
20 Moyera, supra note 3.
21 See id.
22 See id., citing Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 778
N.W.2d 504 (2009).
23 Id.
24 See Bassinger, supra note 5.
25 See id. (overruling Hilt Truck Lines, Inc. v. Jones, 204 Neb. 115, 281
N.W.2d 399 (1979)).

DAMME v. PIKE ENTERS. 	635
Cite as 289 Neb. 620
In sum, under Nebraska’s workers’ compensation statutes,
an award of disability benefits does not depend upon the claim-
ant’s ability to prove he or she has lost wages because of a
work-related injury. And our previous refusal to recognize a
nonstatutory defense is consistent with what the majority of
courts have held in considering whether incarceration bars
disability benefits.26 Workers’ compensation benefits are con-
trolled by statute. Thus far, the act does not disqualify persons
who are in jail or prison from receiving these benefits. The
Legislature determines the content of statutes. It could amend
the statute. But unless it does, this court cannot deny workers’
compensation benefits to prisoners.
[19] So we hold that if a claimant can prove a loss of earn-
ing capacity, his or her incarceration after sustaining a com-
pensable injury is not an event that bars the claimant’s receipt
of disability benefits, absent a statute requiring that result. The
only question is whether Damme proved her diminished earn-
ing capacity.
[20,21] Total disability exists when a workers’ compensa-
tion claimant is unable to earn wages in either the same or
a similar kind of work he or she was trained or accustomed
to perform or in any other kind of work which a person of
the claimant’s mentality and attainments could perform.27
Although medical restrictions or impairment ratings are rel-
evant in determining a claimant’s disability, the Workers’
26 See, United Riggers Erectors v. Industrial Com’n, 131 Ariz. 258, 640 P.2d
189 (Ariz. App. 1981); Wheeler Const. Co. v. Armstrong, 73 Ark. App.
146, 41 S.W.3d 822 (2001); Sims v R. D. Brooks, Inc, 389 Mich. 91, 204
N.W.2d 139 (1973); Hardin’s Bakery v. Taylor, 631 So. 2d 201 (Miss.
1994); SIIS v. Campbell, 109 Nev. 997, 862 P.2d 1184 (1993); State ex rel.
OmniSource v. Indus. Comm., 113 Ohio St. 3d 303, 865 N.E.2d 41 (2007);
Forshee & Langley Logging v. Peckham, 100 Or. App. 717, 788 P.2d 487
(1990); Stevenson v. Westmoreland Coal Co., Ap., 146 Pa. Super. 32, 21
A.2d 468 (1941); King v. Industrial Com’n of Utah, 850 P.2d 1281 (Utah
App. 1993), abrogated on other grounds, Murray v. Utah Labor Com’n,
308 P.3d 461 (Utah 2013); Annot., 54 A.L.R.4th 241 (1987); 9A Lee
R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 134:29 (2005).
See, also, In re MacDonnell’s Case, 82 Mass. App. 196, 971 N.E.2d 836
(2012).
27 E.g., Kim v. Gen-X Clothing, 287 Neb. 927, 845 N.W.2d 265 (2014).

636 	289 NEBRASKA REPORTS
Compensation 	Court 	can 	rely 	on 	a 	claimant’s 	testimony
regarding his or her own limitations to determine the extent of
the claimant’s disability.28
Here, the record shows that Damme’s nurse practitioner,
who was her primary health care provider in October 2009,
wrote work release notes for Damme at least through December
2009 and, in 2010, recommended home health care services for
her. Damme said that in December 2009, she tried to return
to work for Pike to keep herself “out of trouble,” but she
could not because of her work restrictions. She testified that
she also had work release notes after December 2009, which
is consistent with the nurse practitioner’s recommendation of
home health care. Damme testified that before her surgery in
2013, she required home health care because she had trouble
toileting and doing simple household chores by herself. She
said she later reapplied twice to Pike and at other places of
employment, despite knowing that she could not perform the
work. But she received no job offers. The record is sufficient
to support the court’s finding of total disability from the date
of Damme’s injury to the date that Woodward released her to
return to work.
CONCLUSION
We conclude that the court did not err in finding that
Damme proved she sustained a work-related injury in October
2009 that was a contributing factor to her temporary total dis-
ability. Nor did the court err in determining that Damme’s 2013
surgery was reasonably necessary to treat her physical condi-
tion and pain symptoms.
We conclude that evidence sufficiently supported the court’s
finding that after her injury, Damme could not work until June
2013, when Woodward, the surgeon who performed her spi-
nal fusion, released her to return to work. The court correctly
determined that Damme’s incarceration was not an event that
barred her receipt of disability benefits.
28 See, Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009),
citing Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815
(1990); Frauendorfer, supra note 19, citing Cords, supra note 19.

DAMME v. PIKE ENTERS. 	637
Cite as 289 Neb. 620
Finally, we find no merit to Pike’s argument that the court
erred in awarding future medical benefits to Damme.
aFFiRmed.