IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MARSHALL V. FEDEX FREIGHT EAST
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STEPHEN R. MARSHALL, APPELLEE AND CROSS-APPELLANT,
V.
FEDEX FREIGHT EAST, INC., APPELLANT AND CROSS-APPELLEE.
Filed August 25, 2015. No. A-14-982.
Appeal from the Workers’ Compensation Court: JAMES R. COE, Judge. Affirmed.
Gregory D. Worth, of McAnany, Van Cleave & Phillips, for appellant.
William J. Erickson and Blaine T. Gillett for appellee.
IRWIN, INBODY, and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
FedEx Freight East, Inc., (FedEx) appeals an award from the Nebraska Workers’
Compensation Court finding that Stephen R. Marshall suffered a compensable body as a whole
injury and was totally and permanently disabled. Marshall cross-appeals arguing that the
compensation court erred in failing to award discovery sanctions. Finding no error by the
compensation court, we affirm.
BACKGROUND
Marshall injured his left elbow in September 2008 while pulling on a pallet jack in the
trailer of a truck he drove for FedEx. An orthopedic surgeon, Dr. Mark McKenzie, examined the
elbow and in November 2008 performed surgery for an ulnar nerve entrapment and advanced left
carpal tunnel syndrome. After surgery, Marshall developed burning pain in his left hand and arm
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which then began radiating into his shoulder, neck, and right arm. Marshall was diagnosed with
complex regional pain syndrome (CRPS).
In 2009, Marshall had a spinal cord stimulator surgically implanted in an attempt to
alleviate his CRPS. In September, Dr. McKenzie opined that Marshall had reached maximum
medical improvement, noting that Marshall had moderate severity complex regional pain
syndrome with some pain radiating into his opposite [right] arm. He assigned Marshall a 25 percent
impairment rating to his left upper extremity. However, about six-months after Dr. McKenzie’s
letter placing Marshall at maximum medical improvement, Dr. McKenzie noted that Marshall’s
condition had continued to deteriorate with symptoms progressing in both the left and right upper
extremities. Dr. McKenzie noted that he was contemplating amending Marshall’s impairment
rating in light of his deterioration, but felt that he needed to first consult with an expert on the
progression of CRPS. No amended impairment rating from Dr. McKenzie is in the record.
Also in 2009, Marshall began seeing a pain management specialist, Dr. J. Paul Meyer, for
treatment of his CRPS. In October 2011, Dr. Meyer implanted a pain pump into Marshall’s
abdomen in an attempt to alleviate the pain from his CRPS. Dean Venter, the court-appointed
vocational rehabilitation counselor, performed a loss of earning capacity assessment and opined
that Marshall had suffered a 100 percent loss of earning capacity, or permanent total disability, as
a result of his workplace injury.
Dr. Morgan LaHolt conducted an independent medical evaluation and functional capacity
examination at FedEx’s request in May 2014. Dr. LaHolt agreed that Marshall suffered from CRPS
in his left upper extremity and gave him an impairment rating of 7 percent to the left upper
extremity only. Dr. LaHolt found no evidence of CRPS or permanent impairment in the right upper
extremity. In July, Tyler Sexson, a physical therapist and certified hand therapist, performed a
functional capacity evaluation. Sexson found Marshall had impairments to the mobility and
strength of both shoulders; the grip and strength, sensation and dexterity of both hands; strength
of his right hip and trunk; and balance on a single leg. Sexson also noted that Marshall has an
overhead lifting and reaching restriction because of the implanted spinal stimulator.
Venter reviewed the report of Dr. LaHolt and others and affirmed his opinion that Marshall
had suffered a total loss of earning capacity. FedEx retained Mr. David Utley to perform a loss of
earning capacity analysis and provide a rebuttal to Venter. Utley opined that Marshall had a 55
percent loss of earning capacity.
The compensation court determined that because of the involvement of the right arm,
Marshall suffered a two member disability, thus suffering a body as a whole injury. The court
adopted Venter’s opinion and determined that Marshall was permanently and totally disabled. This
appeal follows.
ASSIGNMENTS OF ERROR
FedEx assigns that the compensation court erred in (1) finding that Marshall has a whole
body impairment, and (2) finding that Marshall is permanently and totally disabled. In his
cross-appeal, Marshall assigns that the compensation court erred in failing to award attorney’s fees
and costs incurred to prove a request for admission that FedEx had denied.
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STANDARD OF REVIEW
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. Hynes v.
Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499(2013). Upon appellate review, the findings
of fact made by the trial judge of the compensation court have the effect of a jury verdict and will
not be disturbed unless clearly wrong. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d
94 (2002). In testing the sufficiency of evidence to support findings of fact made by the
compensation court after rehearing, the evidence must be considered in the light most favorable to
the successful party and the successful party will have the benefit of every inference reasonably
deducible from the evidence. Miller v. E.M.C. Ins. Companies, 259 Neb. 433, 610 N.W.2d 398
(2000).
ANALYSIS
Whole Body Impairment.
The central issue on appeal is whether the record supports the compensation court’s finding
that Marshall suffered a whole body impairment. Permanent impairment to a single scheduled
member, such as an arm, is compensated in terms of loss of function, while permanent impairment
to two or more scheduled members may be compensated as a body as a whole injury based on loss
of earning capacity. Neb. Rev. Stat. § 48-121 (Reissue 2010). Impairment is a medical concept
involving what physical abilities have been adversely affected by the injury. Green v. Drivers
Mgmt., Inc., 10 Neb. App. 299, 310, 634 N.W.2d 22, 33 (2001) aff’d in relevant part, 263 Neb.
197, 639 N.W.2d 94 (2002). Generally, a compensation court must rely at least in part on expert
medical evidence to establish permanent physical impairment. Id. Although the usual and preferred
evidence is for a testifying physician to give a percentage rating of the impairment of a member or
the whole body, properly qualified medical testimony need not establish a specific percentage
impairment rating in order to be legally sufficient. Swanson v. Park Place Auto., 267 Neb. 133,
672 N.W.2d 405 (2003) (affirming review panel’s reversal of compensation court’s denial of
permanent partial benefits and stating absence of medically assigned permanent functional
impairment rating does not preclude an award of loss of earning power).
While the parties agree that Marshall has a permanent impairment to his left arm, FedEx
argues that the compensation court erred in finding that Marshall had sustained permanent
impairment to his right arm and consequently to his body as a whole. The issue of whether the
claimant has sustained a permanent impairment, and the extent of impairment, are questions of
fact. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). Accordingly, we will
disturb the compensation court’s determination only if there is clear error on the record. Id.; see
also Hynes v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499(2013).
We find that the record is sufficient to support the compensation court’s finding. The court
found that Marshall had a right arm impairment due to pain from complex regional pain syndrome,
and cited to the reports of Dr. McKenzie and Dr. Meyer noting effects from CRPS in Marshall’s
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right arm. The compensation court also noted that the spinal cord stimulator and pain pump caused
whole body impairments.
Although Dr. McKenzie did not give Marshall an impairment rating to his right arm, his
opinions are legally sufficient medical testimony to demonstrate permanent injury to that arm. See
Swanson v. Park Place Auto., supra. The only doctors to assign Marshall an impairment rating
were Dr. McKenzie and Dr. LaHolt, each of which gave an impairment rating for the left arm only.
However, Dr. McKenzie consistently recorded the existence of injury to Marshall’s right arm and
later noted dissatisfaction with his initial impairment rating. When Dr. McKenzie initially placed
Marshall at maximum medical improvement in 2009, he noted pain in the right arm. Several
months later Dr. McKenzie noted that the CRPS symptoms had been progressing in both arms and
the right hand since his initial finding of maximum medical improvement. Dr. McKenzie noted
that in light of the progression he would like to consult with Dr. Meyer in order to amend the
impairment rating. Accordingly, Dr. McKenzie’s impairment rating for the left arm only does not
reflect his medical assessment of Marshall’s impairments at the time of trial. In July 2010, Dr.
McKenzie opined that Marshall’s CRPS had caused a reflexive change in his right arm, had caused
significant impairment, and would lead to total disability.
In addition to Dr. McKenzie’s medical evidence, other competent evidence in the record
supports the trial court’s finding of permanent impairment to Marshall’s right arm. Sexson’s
functional capacity exam in July 2014 found physical loss of use in the right upper extremity noting
that Marshall “can only perform grasping, fine manipulation and fingering occasionally with his
right hand”. Although Dr. LaHolt found no impairment to the right upper extremity in his exam,
this conflicts with Dr. McKenzie’s opinions and the appellate court will not substitute its judgment
for the compensation court’s when the record presents conflicting medical testimony. Paulsen v.
State, 249 Neb. 112, 541 N.W.2d 636 (1996). Additionally, the record reflects that Marshall
suffered permanent reaching and overhead lifting restrictions due to his spinal stimulator. Because
evidence in the record supports the compensation court’s finding that Marshall’s right arm as well
as his left were permanently impaired by his CRPS, the court did not err in analyzing Marshall’s
claim as a whole body injury under § 48-121(3) rather than a scheduled member injury.
Permanent and Total Disability.
FedEx’s second assignment of error, the compensation court’s finding of permanent and
total disability, is dependent on its argument above that Marshall’s injuries should have been
compensated as a scheduled member injury.
Under § 48-121(3), a compensation court may treat an injury as a body of the whole injury
if it involves impairment to two or more scheduled members and resulted in at least a 30 percent
loss of earning capacity. We affirm above the compensation court’s finding that Marshall’s CRPS
impaired two scheduled members, both arms. Additionally, the record contains ample evidence
that Marshall suffered more than a 30 percent loss of earning capacity. The court-appointed
counselor, Venter, found a 100 percent loss of earning capacity Therefore the requirements of
§ 48-121(3) have been met and the compensation court was within its discretion to find permanent
and total disability.
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Discovery Violations.
In his opening statement at trial, Marshall requested that FedEx “be taxed with the costs of
this action” and that he be awarded an attorney fee based upon FedEx’s denial of a request for
admission that read “Plaintiff has developed a complex regional pain syndrome that has involved
both hands, both arms, back and legs.” The compensation court stated that it did not have authority
to tax costs but it could award an attorney fee. Marshall assigns and argues in his cross-appeal that
the compensation court erred in refusing to grant discovery sanctions pursuant to Neb. Ct. R. Disc.
§ 6-337.
Although the Nebraska Supreme Court rules of civil procedure do not normally apply to
cases in the Workers’ Compensation Court, the Workers’ Compensation Court has specifically
adopted the discovery rules found in Neb. Ct. R. Disc. §§ 6-301 to 6-337. See Neb. Workers’
Compensation Ct. R. 4.
Rule 37(c) provides:
(c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any
document or the truth of any matter as requested under Rule 36, and if the party requesting
the admissions thereafter proves the genuineness of the document or the truth of the matter,
he or she may, within 30 days of so proving, apply to the court for an order requiring the
other party to pay him or her the reasonable expenses incurred in making that proof,
including reasonable attorney fees. The court shall make the order unless it finds that:
(1) The request was held objectionable pursuant to Rule 36(a), or
(2) The admission sought was of no substantial importance, or
(3) The party failing to admit had reasonable ground to believe that he or she might
prevail on the matter, or
(4) There was other good reason for the failure to admit.
Neb. Ct. R. Disc. § 6-337(c). Because the workers compensation court has adopted this rule, the
court had the authority to tax the costs of proving the denied statement; however, we conclude that
the compensation court did not err in refusing to do so because no proper application was made.
The Nebraska discovery rules for civil cases are, with some modification, based on the
federal rules of discovery. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008). We look to
other courts for guidance in applying our rules of civil procedure which are based on the federal
rules. Tymar, LLC v. Two Men and Truck, 282 Neb. 692, 805 N.W.2d 648 (2011). In the comments
to the 1970 amendments of federal rule 37(c), it states that “Rule 37(c) is intended to provide
posttrial relief in the form of a requirement that the party improperly refusing the admission pay
the expenses of the other side in making the necessary proof at trial.” This requires that the motion
for sanctions be made posttrial. See Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687 (Miss.
1990)(stating motion made prior to having proven the admission would be premature).
The Nebraska Supreme Court has held that requests for discovery sanctions under rule
37(c) are collateral and independent actions separate from the trial on the merits. Kaminski v. Bass,
252 Neb. 760, 567 N.W.2d 118 (1997). In Kaminski v. Bass, although the issue before the court
was not the timeliness of a motion for sanctions, but rather which party carries the burden of proof
and what record is required, we find it instructive. After obtaining a verdict, Kaminski filed a
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motion for expenses incurred in proving a denied request for admission. After an evidentiary
hearing, the trial court denied the motion and we affirmed, finding the record was inadequate for
appellate review because the complete bill of exceptions was not provided. We reasoned that some
evidence may have been presented at trial that the trial judge may have relied upon in denying the
motion. On further review, the Nebraska Supreme Court reversed, concluding that a motion for
sanctions pursuant to rule 37(c) is a separate and independent proceeding, thereby limiting
appellate review to the evidence introduced at that hearing on the motion. As such, it appears that
a motion for sanctions under rule 37(c) must be made after trial and a separate evidentiary hearing
must be held.
Here, Marshall did not make a separate application to the trial court for discovery sanctions
after any part of the request to admit had been proved; rather he requested in his opening statement
that the defendant be taxed with the costs of the action and an attorney fee for having denied the
requested admission. Although the trial judge was mistaken in his belief that he was without
authority to tax costs under rule 37(c), Marshall’s request did not comply with the requirements of
the rule.
Marshall’s counsel never filed a motion seeking discovery sanctions, the court never held
a separate hearing on the matter, and the parties never separately presented evidence or argument.
Accordingly, Marshall failed to follow the application and hearing procedure in rule 37 that is a
prerequisite to discovery sanctions and therefore the trial court did not err in denying Marshall’s
request for sanctions.
CONCLUSION
We find that the record supports the compensation court’s findings that Marshall suffered
a whole body impairment and was totally and permanently disabled. Additionally, we find that
Marshall’s cross-appeal regarding discovery sanctions is without merit. Finding no error on any of
the assigned issues, we affirm.
AFFIRMED.
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