Sellers v. Reefer Systems

CONCLUSION
We conclude that the district court abused its discretion in
imposing an excessively lenient sentences on Parminter. We
reverse, and remand with directions to resentence Parminter
to consecutive terms of 5 to 5 years. The district court must
also revoke Parminter’s license according to the applicable
statutes.20 Finally, the court must give Parminter credit for the
time he has already served.21 We leave it to the district court to
determine the credit to Parminter for the time served.
R eveRsed and Remanded with diRections.
20 See § 60-6,197.03(6) and (7).
21 See Neb. Rev. Stat. § 83-1,106 (Reissue 2008). See, also, Neb. Rev. Stat.
§ 29-2324 (Reissue 2008).
william selleRs , appellant, v.
R eefeR systems , inc., appellee .
811 N.W.2d 293
Filed April 26, 2012. 	No. S-11-909.
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: Stipulations. Before an order for future medical ben-
efits may be entered, there should be a stipulation of the parties or evidence in the
record to support a determination that future medical treatment will be reasonably
necessary to relieve the injured worker from the effects of the work-related injury
or occupational disease.
Appeal from the Workers’ Compensation Court. Affirmed.
Joel D. Nelson, of Keating, O’Gara, Nedved & Peter, P.C.,
L.L.O., for appellant.
Sonya K. Koperski, of Leininger, Smith, Johnson, Baack,
Placzek & Allen, for appellee.
760 	283 NeBRASKA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

heavican, c.J., wRight, connolly, stephan, mccoRmack ,
and milleR-leRman, JJ.
stephan, J.
Appellant, William Sellers, injured his left knee in the
course of his employment with Reefer Systems, Inc., and
sought workers’ compensation benefits. The Nebraska Workers’
Compensation Court determined that Sellers was entitled to
future medical care for the knee injury. A review panel of that
court affirmed the award, but modified it “to exclude knee
replacement surgery at present as the evidence as of the date
of trial does not support such finding.” The issue presented in
this appeal is whether the modification limited Sellers’ ability
to claim workers’ compensation benefits relating to any future
knee replacement surgery. We conclude that it did not and
affirm the judgment of the compensation court.
BACKGROUND
On December 8, 2007, Sellers injured his left knee within
the course and scope of his employment with Reefer Systems.
An MRI showed both structural and degenerative damage. Dr.
John Hannah operated on Sellers’ knee in February 2008, and
Sellers thereafter participated in physical therapy. Sellers also
was fitted for a brace and had periodic injections for pain. On
June 26, Hannah found Sellers had reached maximum medi-
cal improvement. And on June 18, 2009, Hannah opined “it is
probable . . . Sellers will need left knee treatment in the future
as a result of the aggravated degenerative changes including
but not limited to doctor visits, imaging studies, injections, and
possibly eventually knee replacement.”
On February 23, 2011, the Workers’ Compensation Court
awarded Sellers temporary and permanent benefits for the knee
injury. Citing to Hannah’s June 18, 2009, opinion, it also found
that Sellers was “entitled to future medical care for treatment
of the left knee injury.”
Reefer Systems appealed to the review panel, arguing the
award of future medical care was improper. Specifically, it
argued there was no evidence in the record of sufficient speci-
ficity to support the award of future medical treatment. The
SeLLeRS v. ReeFeR SySTeMS 	761
Cite as 283 Neb. 760

panel rejected this argument, noting that Hannah’s June 18,
2009, statement that future knee treatment was “probable”
met the standard that future care was needed to a reasonable
degree of medical probability. The panel reasoned, however,
that because Hannah had used the word “possibly” with respect
to future knee replacement surgery, “there is not sufficient evi-
dence . . . to support an award of left knee replacement at the
present time.” It therefore modified the trial court’s award of
future medical care “to exclude knee replacement surgery at
present as the evidence as of the date of trial does not support
such finding.” Sellers filed this timely appeal.
ASSIGNMeNT OF eRROR
Sellers assigns that the “review panel erred in modifying
the award of future medical care so as to exclude the possibil-
ity” of Reefer Systems’ “ever being required to pay” for knee
replacement surgery.
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
ANALySIS
It is undisputed that Sellers sustained the knee injury in the
course and scope of his employment with Reefer Systems.
The Nebraska Workers’ Compensation Act2 provides that an
“employer is liable for all reasonable . . . services . . . and
medicines as and when needed, which are required by the
nature of the injury and which will relieve pain or promote and
1 Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011);
Snipes v. Sperry Vickers, 251 Neb. 415, 557 N.W.2d 662 (1997).
2 See Neb. Rev. Stat. § 48-101 et seq. (Reissue 2010 & Supp. 2011).
762 	283 NeBRASKA RePORTS

hasten the employee’s restoration to health and employment.”3
The “obvious purpose” of § 48-120 is to authorize the compen-
sation court “to order, as part of a final award, an employer to
pay the costs of the medicines and medical treatment reason-
ably necessary to relieve the worker from the effects of the
injury.”4 The provision exists because “[i]t is an obvious fact of
industrial life . . . that an injured worker can reach maximum
medical improvement from an injury and yet require periodic
medical care to prevent further deterioration in his or her
physical condition.”5
Sellers does not contend that he is presently entitled to ben-
efits for knee replacement surgery. But he argues that by modi-
fying the award concerning future medical care, the review
panel improperly and prejudicially limited the award’s scope
to include only that care which “is certainly or probably neces-
sary at the time of trial,”6 thereby foreclosing compensability
of knee replacement surgery even if it is recommended by his
physicians in the future. We do not interpret the modification
as having that effect.
[2] Before an order for future medical benefits may be
entered, there should be a stipulation of the parties or evidence
in the record to support a determination that future medical
treatment will be reasonably necessary to relieve the injured
worker from the effects of the work-related injury or occu-
pational disease.7 That requirement was met in this case by
the opinion of Sellers’ physician that he will probably require
future medical care, including future doctor visits and imaging
studies, as a result of the injury to his left knee. Our case law
establishes that once it has been determined that the need for
future care is probable, the employer is liable for any future
3 § 48-120(1)(a) (emphasis supplied).
4 Foote v. O’Neill Packing, 262 Neb. 467, 473, 632 N.W.2d 313, 319-20
(2001).
5 Id. at 474, 632 N.W.2d at 320.
6 Brief for appellant at 10.
7 Foote, supra note 4; Adams v. Cargill Meat Solutions, 17 Neb. App. 708,
774 N.W.2d 761 (2009).
SeLLeRS v. ReeFeR SySTeMS 	763
Cite as 283 Neb. 760

medical care shown to be reasonably necessary under § 48-120,
even if the necessity for a specific procedure or treatment did
not exist at the time of the award.8
In Foote v. O’Neill Packing,9 we considered the scope of an
award which included “‘all reasonable and necessary medical
expenses resulting from [the compensable] injuries’” but did
not specify what future treatment would be compensable. The
employee sought compensation for medical care he received
more than 2 years after the last workers’ compensation pay-
ment had been made pursuant to the award. The compensation
court rejected the claim, finding it was barred by the statute
of limitations.10 We reversed, concluding that because future
medical benefits were included in the language of the original
award, the statute of limitations did not apply. Instead, “[t]he
only limitation on medical benefits set forth in § 48-120 is
that the treatment be reasonable and that the compensation
court has the authority to determine the necessity, character,
and sufficiency of the treatment furnished.”11 We noted that the
employer “may contest any future claims for medical treatment
on the basis that such treatment is unrelated to the original
work-related injury or occupational disease, or that the treat-
ment is unnecessary or inapplicable.”12
That is essentially what occurred in Rodriguez v. Hirschbach
Motor Lines.13 The employee sought benefits for gastric bypass
surgery, which he contended was medically necessary because
his weight precluded him from undergoing the surgery which
was necessary to treat his work-related injuries. The compensa-
tion court upheld the employer’s objection to liability for this
treatment, noting that while future medical benefits had been
8 See, Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 803
N.W.2d 489 (2011); Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757,
707 N.W.2d 232 (2005); Foote, supra note 4.
9 Foote, supra note 4, 262 Neb. at 469, 632 N.W.2d at 317.
10 See § 48-137.
11 Foote, supra note 4, 262 Neb. at 474, 632 N.W.2d at 320.
12 Id. at 476, 632 N.W.2d at 321. See, also, § 48-120(6).
13 Rodriguez, supra note 8.
764 	283 NeBRASKA RePORTS

awarded, the record “‘at this point’” did not establish that the
gastric bypass surgery was necessary to treat the work-related
injuries.14 We concluded that the denial was not clearly erro-
neous. Implicit in our holding is that if necessity had been
established, the gastric bypass surgery would have been com-
pensable notwithstanding the fact that it was not specifically
included in the award of future medical expenses.
Our recent decision in Pearson v. Archer-Daniels-Midland
Milling Co.15 reinforces the principle that a broadly worded
award of future medical treatment may include treatment which
becomes reasonably necessary only after entry of the award.
The employee sustained a work-related knee injury. Based
upon medical evidence that he would require periodic injec-
tions of medication to alleviate pain, oral anti-inflammatory
medications, and a brace, the compensation court entered an
award in 2008 which required the employer to pay for “‘future
medical care and treatment as may be reasonably necessary
as a result of the accident and injuries . . . .’”16 The employee
subsequently underwent knee replacement surgery, for which
he sought compensation. The compensation court denied the
request, reasoning that the possibility of the surgery was
known at the time of trial and that because compensation
for the surgery was not explicitly awarded, it was therefore
implicitly denied. Based upon this conclusion, the compensa-
tion court did not permit the employee to present evidence that
the knee replacement surgery was necessitated by the compen-
sable injury.
We reversed, and remanded for a factual determination of
whether the knee replacement surgery fell under the provi-
sions of § 48-120. We viewed the evidence at trial as estab-
lishing a possibility that the surgery would be necessary in
the future, but insufficient to establish at the time of the
award that the surgery would meet the test for compensabil-
ity established by § 48-120(1)(a). But we concluded that this
14 Id. at 766, 707 N.W.2d at 240.
15 Pearson, supra note 8.
16 Id. at 403, 803 N.W.2d at 492.
SeLLeRS v. ReeFeR SySTeMS 	765
Cite as 283 Neb. 760

fact did not foreclose a showing of compensability in the
future, reasoning:
Given the broad provision for future medical treat-
ment 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 [the
employee’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—[the
employee] was awarded “[a]ny future medical treatment
received . . . which falls under the provisions of § 48-120,
and which otherwise satisfies all necessary foundational
elements thereto . . . .”17
Here, the award recited the evidence regarding what future
medical treatment would “probably” be necessary, i.e., doc-
tor visits, imaging studies, and injections. It also recited the
evidence that knee replacement surgery would “possibly” be
required. It then ordered the employer “to pay plaintiff’s future
medical care as set forth above.” To the extent that the award
can be read to require payment for knee replacement surgery,
it is erroneous, because the necessity for that surgery had not
been established. The review panel addressed this narrow point
by modifying the award “to exclude knee replacement surgery
at present as the evidence as of the date of trial does not sup-
port such finding.” (emphasis supplied.) The modification is
entirely consistent with our opinions in Foote, Rodriguez,
and Pearson. It does not foreclose Sellers from establishing
at a later date that knee replacement surgery is reasonably
necessary to treat his compensable injury and is therefore
encompassed under the terms of the award. Nor does it fore-
close Reefer Systems from challenging any such future claim.
Section 48-120(6) provides both parties with a mechanism for
resolving any contested issue on this point, which the compen-
sation court would resolve by exercising its continuing jurisdic-
tion over medical benefits to enforce its award.18
17 Id. at 408, 803 N.W.2d at 495.
18 See, Foote, supra note 4; § 48-120(1).
766 	283 NeBRASKA RePORTS

CONCLUSION
For the reasons discussed, we find no error in the judgment
of the compensation court review panel in affirming the award
as modified. The judgment is therefore affirmed.
affiRmed.
SeLLeRS v. ReeFeR SySTeMS 	767
Cite as 283 Neb. 760