Clark v. Alegent Health Neb.

60 	285 NEBRASKA REPORTS
assurance of compliance. The assurance of compliance was a
voluntary agreement, which was negotiated and entered into by
Zawaideh and the assistant attorney general.48 Thus, we find
that the rescission of this agreement of compliance is at the
discretion of the parties and not compelled by law. And second,
the record establishes that the assistant attorney general did not
go beyond her authority in entering into the assurance of com-
pliance. Under the Uniform Credentialing Act, the Attorney
General’s office has the authority to enter into an assurance
of compliance with a medical professional.49 Thus, we hold
that the Attorney General is not legally required to rescind
the contract.
Therefore, the district court did not err in determining that it
lacked subject matter jurisdiction, because sovereign immunity
bars Zawaideh’s misrepresentation claims.
CONCLUSION
We hold that the district court erred in finding that Zawaideh’s
fraudulent and negligent misrepresentation claims were subject
to, and barred by, the State Contract Claims Act. However, we
find that, albeit for different reasons, the district court did not
err in granting summary judgment on the issue of subject mat-
ter jurisdiction.
A ffirmed.
C onnolly, J., not participating.
48 Zawaideh I, supra note 1.
49 § 38-1,108.
K eri C lArK, AppellAnt, v. A legent
H eAltH nebrAsKA, Appellee.
825 N.W.2d 195
Filed January 18, 2013. 	No. S-12-271.
1. Workers’ Compensation. Under Neb. Rev. Stat. § 48-120(2)(a) (Reissue
2010), an employee has the right to select a physician who has maintained the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

CLARK v. ALEGENT HEALTH NEB. 	61
Cite as 285 Neb. 60
employee’s medical records prior to an injury and has a documented history of
treatment with the employee prior to the injury. The employer shall notify the
employee following an injury of such right of selection in a form and manner and
within a timeframe established by the compensation court.
2. ____. In a workers’ compensation case, the physician selected by an injured
employee may arrange for any consultation, referral, or extraordinary or other
specialized medical services as the nature of the injury requires.
3. ____. An employer is not responsible for medical services furnished or ordered
by any physician or other person selected by an injured employee in disregard of
Neb. Rev. Stat. § 48-120(2)(a) (Reissue 2010).
4. ____. The form and manner of the right of selection of a treating physician are
established in Workers’ Comp. Ct. R. of Proc. 50(B)(2) (2009).
5. ____. Workers’ Comp. Ct. R. of Proc. 50(A)(6) (2009) provides that an employee
may choose a physician if compensability is denied and that the employer will
pay for medical, surgical, or hospital services later found to be compensable.
6. ____. Neb. Rev. Stat. § 48-120(2)(a) (Reissue 2010) provides that if com-
pensability is denied by the employer, the employee has the right to select a
physician and the employer is liable for medical services subsequently found to
be compensable.
7. Workers’ Compensation: Words and Phrases. Workers’ Comp. Ct. R. of Proc.
49(A) and (C) (2006) defines compensability and denial of compensability.
“Compensability” or “compensable,” when used with reference to injuries or
diseases, means personal injuries for which an employee is entitled to compensa-
tion from his or her employer. “Denial of compensability” or “compensability is
denied” means a denial that the employee is entitled to compensation for personal
injury from his or her employer.
8. Workers’ Compensation. If an employer has sufficient knowledge of an injury
to an employee to be aware that medical treatment is necessary, it has the affirma-
tive and continuing duty to supply medical treatment that is prompt, in compli-
ance with the statutory prescription on choice of doctors, and adequate; if the
employer fails to do so, the employee may make suitable independent arrange-
ments at the employer’s expense.
Appeal from the Workers’ Compensation Court: tHomAs e.
stine, Judge. Reversed and remanded.
Sean P. Rensch and Richard J. Rensch, of Rensch & Rensch
Law, for appellant.
Patrick R. Guinan, of Erickson & Sederstrom, P.C., for
appellee.
H eAviCAn, C.J., WrigHt, C onnolly, stepHAn, mCC ormACK,
miller-lermAn, and CAssel, JJ.

62 	285 NEBRASKA REPORTS
H eAviCAn, C.J.
INTRODUCTION
This is a workers’ compensation case filed by Keri Clark,
appellant, against her employer, Alegent Health Nebraska
(Alegent), appellee. On April 18, 2010, while Clark was
employed as a nurse by Alegent, she was attacked by a psychi-
atric patient at Immanuel Medical Center, her place of employ-
ment. The trial court found Clark suffered a compensable
injury from the April 18 incident and found the incident caused
an aggravation of a non-work-related head, neck, and shoulder
condition for which Clark had recently undergone surgery. The
trial court found medical treatment, including a 2011 surgery,
was necessary and reasonable subsequent to the incident. The
trial court, however, denied all compensation for treatment
and bills from medical providers other than Dr. Nils Nystrom,
finding that Clark failed to produce evidence of a “chain of
referral” for these medical providers, pursuant to Neb. Rev.
Stat. § 48-120(2)(e) and (f) (Reissue 2010), and that some of
the treatment Clark received was not related to the incident. We
reverse, and remand.
FACTUAL BACKGROUND
The parties do not dispute that Clark was employed by
Alegent at Immanuel Medical Center as a nurse when she was
attacked by a psychiatric patient on April 18, 2010, during the
course and scope of her employment. Clark was grabbed from
behind by the patient, by her hair and shoulder, and thrown
against the wall and onto the floor, sustaining a head, neck,
and shoulder injury. Six weeks prior to the incident, on March
2, Clark had undergone surgical exploration, decompression,
and neurolysis of the left spinal accessory nerve for non-
work-related medical issues. The surgery was performed by
Dr. Nystrom.
[1-3] Alegent paid for Clark’s subsequent emergency room
visit after the attack. On April 23, 2010, Alegent provided
Clark with Workers’ Compensation Court form 50. On such
form, Clark designated Dr. Nystrom as her treating physician
for the injury sustained from the work incident. Section 48-120

CLARK v. ALEGENT HEALTH NEB. 	63
Cite as 285 Neb. 60
explains the legal ramifications of selecting a treating physi-
cian for an injury subject to workers’ compensation:
(2)(a) The employee has the right to select a physician
who has maintained the employee’s medical records prior
to an injury and has a documented history of treatment
with the employee prior to an injury . . . . The employer
shall notify the employee following an injury of such
right of selection in a form and manner and within a time
frame established by the compensation court. . . .
. . . .
(e) The physician selected may arrange for any con-
sultation, referral, or extraordinary or other specialized
medical services as the nature of the injury requires.
(f) The employer is not responsible for medical serv
ices furnished or ordered by any physician or other per
son selected by the employee in disregard of this section.
(Emphasis supplied.)
[4] The form and manner of this “right of selection”1 of a
“treating physician” are established in Workers’ Comp. Ct. R.
of Proc. 50(B)(2) (2009):
The Court has a form the employer may use to give notice
to the employee. In all cases, the notice:
a. must be given to the employee as soon as possible
after the employer knows about the injury;
b. must tell the employee of the right to choose a fam
ily physician as the primary treating physician;
c. must tell the employee to give the employer the
name of the family physician chosen as the primary treat
ing physician as soon as possible after getting notice from
the employer, and before any treatment, unless it is emer
gency medical treatment;
d. must tell the employee the employer gets to choose
the primary treating physician if the employer is not
given the name of the family physician as soon as pos-
sible after the employee receives the notice;
1 See § 48-120(2)(a).

64 	285 NEBRASKA REPORTS
e. must tell the employee the employer gets to choose
the primary treating physician if an authorization is
needed to verify prior treatment and is not given; and
f. must tell the employee the primary treating physician
may not be changed once the employer has been given the
name, unless the change is agreed to by the employer or
is ordered by the compensation court. A referral by the
primary treating physician is not a change.
After identifying Dr. Nystrom as her “primary treating phy-
sician” pursuant to the above statute and rule of procedure,
Clark sought treatment from Dr. Nystrom on April 27, 2010,
attempting conservative treatment for her injury. Clark missed
3 days of work after the incident. She attempted to contact the
caseworker identified by Alegent in order to make arrange-
ments to receive workers’ compensation benefits for this period
of absence. Clark testified she received no response after sev-
eral attempts to reach the designated contact. Neither Alegent
nor its designated contact returned Clark’s telephone calls or
made arrangements to pay Clark for her treatment with Dr.
Nystrom or absence from work. The record indicates no meet-
ing occurred between Clark and Alegent or one of its represent-
atives wherein Alegent would have informed Clark that she
would not be paid for her medical treatment or absence from
work. Furthermore, Alegent did not provide Clark with a writ-
ten statement indicating she would not be paid for her medical
treatment or absence from work.
On July 30, 2010, Alegent hired Dr. D.M. Gammel to exam-
ine Clark’s medical records both prior to and subsequent to
the work incident. Dr. Gammel issued his report to Clark’s
workers’ compensation caseworker. In his report, Dr. Gammel
issued an independent medical opinion stating that Clark was
injured and had been treated by Dr. Nystrom, but had recovered
and returned to “baseline” as of May 1, 2010. After the report
was issued, neither Alegent nor Clark’s workers’ compensation
caseworker made arrangements to pay Clark for her treatment
or absence from work.
Clark later received treatment and/or was prescribed medi-
cation from at least seven other physicians. However, Dr.
Nystrom did not refer Clark to any of these physicians and

CLARK v. ALEGENT HEALTH NEB. 	65
Cite as 285 Neb. 60
Clark did not list any of them on the Workers’ Compensation
Court form 50. Clark also received treatment from three physi-
cians who had been referred to Clark by Dr. Nystrom.
On September 14, 2010, Clark reported to the emergency
room at Immanuel Medical Center. The record indicates that at
that time, Clark complained to the staff on call about shoulder
pain related to a work incident that had occurred 3 years ago—
not the April 2010 incident at issue in this case.
On March 17, 2011, after almost a year of treatment for
Clark’s injury, Dr. Nystrom performed decompression surgery
on Clark’s head, neck, and shoulder areas, similar to Clark’s
March 2, 2010, surgery. Alegent disputed the reasonable-
ness and necessity of that surgery and on February 17, 2011,
had Clark evaluated by Dr. Charles Taylon. On February
22, prior to the March 17 surgery, Dr. Taylon opined that
decompression surgery was not an accepted procedure for
Clark’s complaints.
On March 23, 2011, Clark filed suit against Alegent for
expenses related to this incident. On April 6, Alegent filed its
answer. Alegent admitted that Clark suffered a work-related
incident on April 18, 2010, and that she was employed by
Alegent as a nurse, but generally denied the nature and extent
of Clark’s injury. The only affirmative defense alleged in its
answer was that Clark’s injury or disability was the natural
progression of a preexisting condition due to reasons other than
her employment. Also, there was no discussion of any chain-
of-referral issues in the trial court’s pretrial order.
The main issue at trial was the compensability of the March
17, 2011, surgery performed by Dr. Nystrom. Alegent asserted
that the medical treatment performed by Dr. Nystrom was not
reasonable and necessary to treat Clark’s injury. In its clos-
ing argument, Alegent argued, for the first time, that other
medical benefits claimed by Clark fell outside the chain of
referral from her primary treating physician. On March 1,
2012, the trial court entered an award in favor of Clark, find-
ing that Clark’s previous head, neck, and shoulder injury was
aggravated by the April 18, 2010, attack and that the March
17, 2011, surgery was reasonable and necessary because of
the injury caused by the attack. The trial court’s award also

66 	285 NEBRASKA REPORTS
included payment for all medical expenses associated with Dr.
Nystrom and those doctors Clark sought treatment with upon
Dr. Nystrom’s referral. Alegent received credit for the $777.02
amount it had already paid toward Clark’s medical expenses,
including her initial emergency room visit.
But because Dr. Nystrom did not refer Clark to the majority
of the other doctors, the trial court denied payment of the med-
ical expenses associated with those doctors. The trial court held
that all of the medical expenses related to treatment from the
doctors other than Dr. Nystrom, or those doctors Dr. Nystrom
referred Clark to for treatment, were not compensable. The trial
court stated that under § 48-120(2)(e) and (f), Clark had a duty
to produce sufficient evidence showing a chain of referral from
Dr. Nystrom to these other doctors, as Dr. Nystrom was the
only doctor she designated on form 50 as her treating physi-
cian. The trial court found Clark had failed to do so in compli-
ance with the statute and rules of procedure.
The trial court also found that treatment on September 14,
2010, at Immanuel Medical Center’s emergency room was not
related to Clark’s April 18, 2010, work injury, because at the
time of the visit, Clark complained of pain related to her past
injury to her head, neck, and shoulder. Clark appeals.
ASSIGNMENTS OF ERROR
Clark assigns, restated and consolidated, that the trial court
erred in (1) requiring chain-of-referral proof for all medical
treatment Clark received from doctors other than Dr. Nystrom;
(2) disallowing payment for certain medical benefits for vari-
ous reasons, including that Alegent failed to plead as an affirm-
ative defense that Clark violated the chain-of-referral provi-
sions as set forth in § 48-120(2) and (3); and (3) finding that
treatment on September 14, 2010, was not related to the April
18 work injury.
STANDARD OF REVIEW
The judgment made by the compensation court shall have
the same force and effect as a jury verdict in a civil case.2 A
2 Neb. Rev. Stat. § 48-185 (Cum. Supp. 2012).

CLARK v. ALEGENT HEALTH NEB. 	67
Cite as 285 Neb. 60
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 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.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.4
If the record contains evidence to substantiate the factual con-
clusions 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.5 An appellate
court is obligated in workers’ compensation cases to make its
own determinations as to questions of law.6
ANALYSIS
Chain of Referral.
[5,6] Clark first assigns that the trial court erred in deny-
ing payment for all her medical expenses outside of the chain
of referral to Dr. Nystrom, because the trial court found her
injury was compensable and Alegent effectively “denied com-
pensability” under § 48-120(2)(a) and rule 50(A)(6). Clark
argues Alegent’s denial of compensability entitled Clark to
choose her treating physicians and avoid the chain of referral
under § 48-120(2)(e) and (f). Rule 50(A)(6) of the Nebraska
Workers’ Compensation Court rules of procedure provides:
“The employee may choose a physician if compensability
is denied and the employer will pay for medical, surgical,
or hospital services later found to be compensable.” Section
48-120(2)(a) provides, in accord, “If compensability is denied
by the [employer,] the employee has the right to select a
3 Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009).
4 Id.
5 Id.
6 Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).

68 	285 NEBRASKA REPORTS
physician and . . . the employer is liable for medical . . . serv-
ices subsequently found to be compensable.”
[7] On appeal, we must determine whether Alegent denied
compensability for purposes of § 48-120 and rule 50(A)(6).
The Nebraska Workers’ Compensation Court rules of procedure
define “[c]ompensability” and “[d]enial of compensability.”
“‘Compensability’ or ‘compensable’ when used with reference
to injuries or diseases means personal injuries for which an
employee is entitled to compensation from his or her employer
. . . .”7 “‘Denial of compensability’ or ‘compensability is
denied’ means a denial that the employee is entitled to com-
pensation for personal injury from his or her employer . . . .”8
The trial court did not consider whether Alegent effectively
denied Clark compensability pursuant to the statute and rules
of procedure.
[8] Larson’s Workers’ Compensation Law discusses the cir-
cumstances which effectuate an employer’s “denial of com-
pensation” under statutory workers’ compensation provisions
similar to those of Nebraska:
The 	central 	rule 	defining 	the 	circumstances 	under
which a claimant may on his or her own initiative incur
compensable medical expense may be put as follows: If
the employer has sufficient knowledge of the injury to
be aware that medical treatment is necessary, it has the
affirmative and continuing duty to supply medical treat-
ment that is prompt, in compliance with the statutory
prescription on choice of doctors, and adequate; if the
employer fails to do so, the claimant may make suitable
independent arrangements at the employer’s expense.9
Here, Clark became injured on April 18, 2010. Alegent
was notified and paid for Clark’s emergency room visit. Clark
was provided with form 50 from Alegent and she filled it out,
indicating that Dr. Nystrom would be her treating physician.10
7 Workers’ Comp. Ct. R. of Proc. 49(A) (2006).
8 Rule 49(C).
9 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 94.02[4][a] at 94-15 to 94-16 (2011).
10 See Radil v. Morris & Co., 103 Neb. 84, 170 N.W. 363 (1919).

CLARK v. ALEGENT HEALTH NEB. 	69
Cite as 285 Neb. 60
Thus, at this point, Alegent had sufficient knowledge of the
injury and was aware that medical treatment may be neces-
sary. After the initial emergency room visit, on April 27, 2010,
Clark reported to Dr. Nystrom, her treating physician, for treat-
ment. Clark missed work after the incident and attempted to
contact the person identified by Alegent to make arrangements
to receive workers’ compensation benefits for this period of
absence. Clark testified she received no response after several
attempts to reach the designated contact. Neither the designated
contact nor Alegent made arrangements to pay for Clark’s
medical care.
Three months after Clark’s initial treatment with Dr. Nystrom,
on July 30, 2010, Alegent had Dr. Gammel examine Clark’s
medical records dated both before and after the incident. After
his examination, Dr. Gammel issued an independent medical
opinion report stating that Clark had been injured and treated
by Dr. Nystrom on April 27, but that Clark had returned to
“baseline” as of May 1. This report was given to Clark’s work-
ers’ compensation caseworker. After the caseworker received
the report, Alegent did not pay for the April 27 treatment Clark
had received from Dr. Nystrom.
We find Alegent did not uphold its affirmative and con-
tinuing duty to supply medical treatment that is prompt, in
compliance with the statutory prescription on choice of doc-
tors, and adequate for Clark’s specific injury. Alegent had
sufficient notice of the incident; Clark’s initial treatment with
Dr. Nystrom, her designated treating physician; and the neces-
sity of such treatment, but did not contact Clark or return her
calls in order to cover this expense and her short absence from
work. Furthermore, after Dr. Gammel reviewed Clark’s case,
Alegent again did not make arrangements to cover Clark’s
initial treatment with Dr. Nystrom or her absence from work.
Thus, Alegent denied compensability for Clark’s injury.11 Clark
11 See, e.g., West Side Transport v. Cordell, 601 N.W.2d 691 (Iowa 1999);
Breckle v. Hawk’s Nest, Inc., 980 S.W.2d 192 (Mo. App. 1998), overruled
on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220
(Mo. 2003); Pruteanu v. Electro Core, Inc., 847 S.W.2d 203 (Mo. App.
1993), overruled on other grounds, Hampton, supra.

70 	285 NEBRASKA REPORTS
contacted Alegent almost a year later concerning payment of
a surgery to the injured area to be performed by Dr. Nystrom.
Alegent denied compensability for this medical expense after
reviewing a report from one of its own physicians, never
changing its position on Clark’s case.
Because 	Alegent 	effectively 	denied 	compensability 	for
Clark’s injury, Clark had a right to select her own physicians
for treatment. Thus, under § 48-120(2)(a) and rule 50(A)(6),
Clark was entitled to choose her treating physicians and sur-
geons and avoid the chain of referral under § 48-120(2)(e)
and (f) after her April 27, 2010, treatment with Dr. Nystrom.
Furthermore, as Clark’s injury was later deemed compensable
by the trial court under § 48-120(2)(a) and rule 50(A)(6),
Alegent is liable for all medical treatment of Clark’s compen-
sable injury, not only by Dr. Nystrom, but also the other physi-
cians with whom Clark chose to treat as well.
Thus, the trial court erred in not considering whether
Alegent denied compensability before denying Clark payment
for her medical treatment outside the chain of referral from
Dr. Nystrom because (1) Clark was not subject to the chain-
of-referral provisions, as Alegent denied compensability for
her injury, and (2) her injury was later found compensable by
the trial court. We reverse the final award of the trial court and
remand the cause to the trial court for a new damage award
consistent with this finding.
In light of this finding, we do not address Clark’s second
assignment of error, in which Clark claims that the trial court
erred in disallowing payment for some of her medical ben-
efits, namely, because Alegent failed to plead as an affirmative
defense that Clark violated the chain-of-referral provisions.
September 14, 2010, Emergency
Room Visit.
In her final assignment of error, Clark argues that the trial
court erred in finding that the medical treatment Clark incurred
on September 14, 2010, was not related to her April 18 work
injury. We find that this conclusion is not supported by the
evidence. Although, as the trial court noted, the record of the
September 14 emergency room visit indicates the history of

CLARK v. ALEGENT HEALTH NEB. 	71
Cite as 285 Neb. 60
Clark’s long-term issues with her head, neck, and shoulder
areas, it is clear from the other evidence in the record that
Clark was seeking treatment not because of her older injury,
but because of how the April 18 injury aggravated her previous
head, neck, and shoulder injury.
Less than a month before this emergency room visit, Clark
was attacked at work. The trial court held that this attack left
Clark with a compensable injury, including surgery performed
almost a year after the event. In light of this fact and the trial
court’s holding, we conclude that during her September 14,
2010, emergency room visit, Clark was explaining the history
of issues she had had in this area of her body at the time of
the September emergency room visit. Such explanation dem-
onstrated to the treating staff at the time of the September 14
emergency room visit that this area of her body had become
aggravated by the work incident that occurred less than a
month before this time. It was inconsistent for the trial court
to find that Clark’s head, neck, and shoulder areas were
injured in April 2010, requiring surgery in March 2011, but
that a September 2010 emergency room visit regarding her
head, neck, and shoulder areas, occurring between these two
events, was not related to the April 2010 incident. Thus, the
trial court was clearly wrong in finding that Clark’s treatment
on September 14 was not related to the April 18 work injury.
This treatment should also be deemed compensable by the
trial court.
We reverse the final award of the trial court and remand
the cause for a new damage award consistent with these
findings. The trial court erred in requiring chain-of-referral
proof for all medical treatment Clark received. Alegent denied
compensability for Clark’s injury, and under § 48-120(2)(a)
and rule 50(A)(6), Clark was thereby entitled to choose her
treating physicians and avoid the chain of referral under
§ 48-120(2)(e) and (f).
Furthermore, the trial court was clearly wrong in finding that
treatment on September 14, 2010, was not related to the April
18 work injury. This treatment should be deemed compensable
by the trial court.

72 	285 NEBRASKA REPORTS
CONCLUSION
Accordingly, we reverse the decision of the trial court and
remand the cause for an amended final award consistent with
this opinion.
reversed And remAnded.
stAte of nebrAsKA, Appellee, v.
CHAd normAn, AppellAnt.
824 N.W.2d 739
Filed January 18, 2013. 	No. S-12-339.
1. Criminal Law: Convicted Sex Offender: Evidence. A crime that is generally
not a typical sex crime may still require registration under the Sex Offender
Registration Act if the court finds that evidence of sexual penetration or sexual
contact was present in the record.
2. Convicted Sex Offender: Appeal and Error. An appellate court will affirm a
court’s ruling that a defendant must register under the Sex Offender Registration
Act if, viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found with a firm conviction that the crime involved
sexual contact.
3. Evidence: Appeal and Error. As with any sufficiency claim, regardless whether
the evidence is direct, circumstantial, or a combination thereof, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
Appeal from the District Court for Buffalo County: JoHn p.
iCenogle, Judge. Affirmed.
Michael J. Synek for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
H eAviCAn, C.J., WrigHt, C onnolly, stepHAn, mCC ormACK,
miller-lermAn, and CAssel, JJ.
C onnolly, J.
NATURE OF CASE
Chad Norman pled no contest to third degree assault. Based
solely on the factual basis for the plea, the district court ordered