IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
WALLING V. QWEST CORP.
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).
DAN WALLING, APPELLANT,
V.
QWEST CORPORATION AND XL SPECIALTY INSURANCE COMPANY, APPELLEES.
Filed April 20, 2021. No. A-20-594.
Appeal from the Workers’ Compensation Court: JAMES R. COE, Judge. Affirmed.
Steven H. Howard, of Steve Howard Law, P.C., L.L.O., for appellant.
Eric J. Pollart, of Pollart Miller, L.L.C., for appellees.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Dan Walling appeals the determination of the Nebraska Workers’ Compensation Court
dismissing his petition against Qwest Corporation and XL Specialty Insurance (Qwest) for
workers’ compensation benefits. The court found that Walling failed to prove his fall caused a
compensable injury under the Nebraska Workers’ Compensation Act. After considering Walling’s
assigned errors, we affirm.
STATEMENT OF FACTS
Walling alleged he was injured on January 16, 2017, when he fell on ice while at work.
The following day, he sought medical treatment from Michelle Poskevich, a nurse practitioner,
who noted in a medical record that Walling hurt his back while at work. On January 24, Poskevich
referred Walling to physical therapy. After Walling attended several physical therapy sessions, his
physical therapist suggested an MRI and, on February 9, Poskevich recommended an MRI which
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was completed on February 21. The MRI revealed a condition described as “multilevel bilateral
neural foraminal stenosis most pronounced at L5-S1 left greater than right with compression of
the exiting left L5 nerve root.” Following the MRI, Poskevich referred Walling to Dr. John
McClellan, a spine surgeon.
In late March 2017, Dr. McClellan reviewed Walling’s MRI, placed lifting restrictions on
Walling, referred him to physical therapy, and referred him to Dr. Jeremiah Ladd, a physiatrist for
further assessment. In August, Dr. Ladd administered a lumbar epidural to Walling, after which
Walling reported a 75 percent reduction in his pain. Subsequent to this office visit, Walling fell for
a second time after he tripped over some concrete. Walling stated that his pain increased after this
second fall. Dr. Ladd administered a second epidural in October, which Walling reported helped
his discomfort significantly; however, Walling stated the pain returned three days later. On
December 1, Dr. Ladd referred Walling for surgery.
In August 2018, Dr. McClellan recommended that Walling participate in an EMG study
and undergo an MRI. The EMG demonstrated a “bilateral L5 nerve injury. It is moderate on the
right, and mild-to-moderate on the left. The lumbar MRI scan demonstrate[d] severe nerve
compression, L5 bilaterally, due to severe bilateral foraminal stenosis.” In November, Dr.
McClellan authored a letter to Walling’s insurance carrier recommending that Walling undergo a
fusion of the L4-5 and L5-S1 level to treat his persistent back and sciatic leg pain which Dr.
McClellan noted was a result of Walling’s work injury.
Dr. McClellan’s March 2017 medical report indicated Walling sought treatment for pain
in his right lower extremity and lower back explaining Walling fell against a concrete curb while
at work which impacted mostly his lower back and pelvis. Dr. McClellan noted Walling had a
weight lifting limitation of 30 pounds. Dr. McClellan’s August 23, 2017, report stated Walling had
“a history of a work-related injury in 1/16/17” but did not mention any previous back injuries
sustained by Walling. One line in Dr. McClellan’s medical records stated “past medical history
reviewed,” but his notes did not specify the content of the medical history he reviewed and did not
indicate that Walling informed him of his preexisting back condition beginning in at least 2013 or
otherwise suggest of the aggravation of a pre-existing condition.
Walling’s history of treatment for back pain began years prior to his January 16, 2017,
injury, having been treated for back pain since at least 2013. Medical records offered at trial
demonstrated Walling was seen in February 2013 for acute back pain attributed to moving snow;
in September 2013 on multiple occasions for management of acute back pain; in December 2014
from an incident where he fell on a patch of ice; in July 2016 for self-described “severe” pain
which he stated was occurring “constantly” but for which he could not attribute a triggering cause;
in December 2016 for an acute flare up of back pain; and on January 13, 2017, three days before
the alleged incident, for a self-described slip and fall on ice in his driveway at home for which he
also sought treatment from Poskevich who referred him for radiological studies of his back and
physical therapy. Poskevich authored a letter on March 10, 2017, stating Walling’s prior condition
from his fall at home on January 8 “had mostly resolved by [the time of her] visit with him on
January 13, 2017.” Poskevich further explained Walling’s fall at work on January 16 was “the
contributing factor to his current condition” and was the reason she referred Walling to a spine
specialist.
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At Qwest’s behest, Dr. David Diamant performed a medical exam on Walling on February
12, 2019. Following the exam, Dr. Diamant authored a report which stated that, in 2016, Walling
had preexisting back pain without referral or radiation to the lower limbs and that Walling had
engaged in physical therapy from July 22 to August 26 after which he was dismissed because his
back pain had fully subsided. Dr. Diamant noted that after Walling’s work accident, Walling
experienced right back pain radiating to the right lateral hip, posterior thigh, and occasionally into
the posterolateral calf and ankle. Dr. Diamant concluded Walling’s injuries were a result of his
work accident.
However, on February 22, 2019, Dr. Diamant added an addendum to his report explaining
that he had changed his opinion regarding the cause of Walling’s back pain:
[A]fter reviewing available medical records, I am inclined to change my opinion. It is clear
that . . . Walling has a preexisting history of recurrent back pain. The confusing matter is
that he had complaints of back pain when he presented to . . . Poskevich on 1-13-17, such
pain was incurred when falling January 8. Then, on January 16, he fell once again. I cannot
say to a reasonable degree of medical certainty that the events of 1-16-17 caused his current
back pain, lumbar radiculopathy, possible SIJ dysfunction and his current clinical
condition, as he was experiencing back pain over the preceding few weeks prior to 1/16/17.
It is possible that such on 1/16/17 could have aggravated his preexisting condition, but I
cannot say that to a reasonable degree of medical certainty. All I can say is it is possible.
My opinion is rendered to a reasonable degree of medical certainty based on review
of the entirety of the medical record that was provided. I had known of back pain in 2016
based on the previous review of medical records. I asked . . . Walling if he had back issues
between then and the date of [his fall] and he indicated that he did not. Based on the new
records that were provided, it is evident that he did.
Dr. McClellan reviewed Dr. Diamant’s assertions and in a questionnaire noted his
disagreement therewith. Dr. McClellan explained that Dr. Diamant’s “conclusion ignore[d] the
bilateral nerve injuries that responded to our blocks.”
In May 2019, Walling filed a petition against Qwest alleging he suffered a work-related
injury when he slipped on ice and fell resulting in low back pain. Walling alleged the matters in
dispute included disability benefits, medical expenses, future medical treatment, vocational
rehabilitation, waiting penalty, costs, and attorney fees. Qwest denied the allegations that
Walling’s medical care was reasonable, necessary, or related to his fall at work.
Following a trial held in May 2020, the court outlined the previously mentioned facts
concerning Walling’s medical history and complaints of ongoing back pain since at least 2013
which included seeking medical treatment six times in 2013 alone. The court explained that prior
to Walling’s work accident, he sought medical treatment on December 22, 2016, for an acute
flare-up of back pain. The court indicated that on January 13, 2017, Walling again sought medical
treatment for ongoing back pain as a result of falling on ice in his driveway and landing on his
buttocks. The court compared the reports authored by Drs. Diamant and McClellan and found Dr.
Diamant’s conclusion -- that Walling’s back pain in 2019 was not caused by his fall at work -- was
more persuasive because Dr. Diamant noted he had considered additional medical records
containing Walling’s prior complaints of preexisting back pain which occurred prior to his work
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accident. Dr. Diamant’s report observed Walling had a history of recurrent back pain, including
back pain on January 13, 2017, a few days prior to Walling’s fall at work, whereas Dr. McClellan’s
report did not comment on that issue. The court ultimately concluded that finding causation from
Walling’s fall at work was difficult based on the conflicting medical evidence. Accordingly, the
court denied Walling’s petition and dismissed the action. Walling has timely appealed.
ASSIGNMENTS OF ERROR
Walling assigns, restated and renumbered, that the court erred in (1) failing to supply a
decision setting forth the basis for a meaningful review as required by Workers’ Comp. Ct. R. of
Proc. 11(A) (2011), (2) finding a defense examiner’s opinion 2 years postaccident supported a
factual finding that no on-the-job accident occurred 2 years prior, and (3) failing to make findings
of fact under the appropriate aggravation of preexisting condition analysis and framework.
STANDARD OF REVIEW
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2020), an appellate court may modify,
reverse, or set aside a Workers’ Compensation Court decision only when (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. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).
On appellate review, the factual findings 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. Id. In testing the sufficiency of the evidence to support the findings of fact in a workers’
compensation case, an appellate court considers the evidence in the light most favorable to the
successful party, every controverted fact must be resolved in favor of the successful party, and the
appellate court gives the successful party the benefit of every inference reasonably deducible from
the evidence. Id.
As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of
witnesses and the weight to be given their testimony. Id.
An appellate court is obligated in workers’ compensation cases to make its own
determinations as to questions of law. Frans v. Waldinger Corp., 306 Neb. 574, 946 N.W.2d 666
(2020).
ANALYSIS
RULE 11(A)
Walling first argues the trial court erred by entering an order that did not comply with
Workers’ Comp. Ct. R. of Proc. 11(A). Specifically, Walling argues that although it is clear the
court found Walling was not entitled to compensable benefits occurring 2 years after the accident,
“The Order is silent on how Dr. Diamant’s opinion regarding Walling’s status two years after the
fact somehow allows the Court to ignore its obligation to decide about the prior care. Those failures
leave this Court unable to perform a meaningful review.” Brief for appellant at 15. In support of
his argument, Walling cites to Hadfield v. Nebraska Med. Ctr., 21 Neb. App. 20, 838 N.W.2d 310
(2013), for the proposition that a compensation court’s general conclusion noting the employee’s
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evidence failed to meet the burden of proving the injuries were caused by a work-related accident
lacks sufficient clarity for meaningful appellate review under rule 11. Walling argues the workers’
compensation court’s order here similarly lacks sufficient clarity governing compensability
relating to periods prior to Dr. Diamant’s opinion and therefore violate rule 11(A).
Workers’ Comp. Ct. R. of Proc. 11(A) provides: “Decisions of the court shall provide the
basis for a meaningful review. The judge shall specify the evidence upon which the judge relies.”
The proposition Walling cites from Hadfield was based on circumstances found in Hale v.
Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 (1996). In Hale, the workers’ compensation
court found that the claimant did not meet his burden of proving the sustained injury was caused
by his employment. More specifically, the order stated, “‘the evidence does not preponderate in
favor of a finding for the plaintiff.’” Hale, 251 Neb. at 40, 554 N.W.2d at 426. On appeal, the
Nebraska Supreme Court opined it could not meaningfully review the trial court’s order because
the trial court did not articulate what the claimant failed to prove. Hale v. Standard Meat Co.,
supra. Ultimately, the Nebraska Supreme Court vacated and remanded the cause with directions
to the workers’ compensation court to comply with the requirements of rule 11. Hale v. Standard
Meat Co., supra.
Unlike Hale, the compensation court in the present action clearly stated and cited to the
evidence it relied upon in making its findings. This case presents conflicting expert opinions as to
whether Walling’s postaccident injuries and pain complaints were caused by his January 16, 2017,
fall at work. That presented an issue of causation for the court to decide. “A worker may recover
under Nebraska’s workers’ compensation laws only for injuries caused by an accident or
occupational disease. See Neb. Rev. Stat. § 48-101 (Reissue 2010).” Hadfield v. Nebraska Med.
Ctr., 21 Neb. App. at 25, 838 N.W.2d at 314. As to that issue, the trial court specifically found Dr.
Diamant’s opinion more persuasive than Dr. McClellan’s opinion and in doing so, quoted a portion
of Dr. Diamant’s February 2019 medical report which set forth “I cannot say to a reasonable degree
of medical certainty that the events of 1-16-17 caused [Walling’s] current back pain, lumbar
radiculopathy, possible SIJ dysfunction and his current clinical condition, as he was experiencing
back pain over the preceding few weeks prior to 1/16/17.” (Emphasis in original). The trial court
further explained “Dr. McClellan makes no real comment on [Walling’s] extensive preexisting
complaints of back pain.” The compensation court concluded the conflicting medical evidence
made it difficult to find causation from Walling’s fall at work. Walling appears to argue that
because Dr. Diamant’s opinions on causation could be read to apply only to Walling’s conditions
two years post-accident, that the trial court’s erroneous consideration should somehow relate to
rule 11(A). We disagree. Whether the trial court properly interpreted Dr. Diamant’s opinion (which
we address in the next section of the opinion) does not impact whether the court’s order complied
with rule 11(A). To comply with rule 11(A), the court was required to provide the basis for a
meaningful review and specify the evidence upon which it relied.
Here, in reaching its conclusion that Walling did not suffer a work-related injury, the trial
court specifically noted the evidence relied upon in making that determination. The trial court
discussed Walling’s extensive medical history regarding back issues, Walling’s medical treatment
after his fall at work, and the doctors’ opinions about the causation of Walling’s symptomology.
The trial court articulated the differences between the competing doctors’ expert opinions and the
court’s concern that Dr. McClellan did not indicate he considered Walling’s extensive preexisting
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complaints of back pain, including but not limited to, the injury sustained a week before the
January 16, 2017, incident, in reaching his opinion on causation. The trial court found Dr.
Diamant’s consideration of Walling’s preexisting back pain to be more persuasive in concluding
that Walling’s symptomology was not causally related to his fall at work. As a result, the court
denied Walling’s petition in its entirety, and dismissed the action. We find the court’s order meets
the requirements of Workers’ Comp. Ct. R. of Proc. 11(A), and this assigned error fails.
RELIANCE ON DR. DIAMANT’S OPINION
Walling next argues that the court erred in relying on Dr. Diamant’s opinion in support of
its finding on causation. In connection with this assignment, Walling again directs our attention to
the opinion of Dr. Diamant and argues that his opinion only supports a finding that Walling’s
medical condition and pain complaints existing two years after the January 16, 2017, incident were
not related to the incident. He argues Dr. Diamant’s opinion cannot be read to apply to Walling’s
injuries and condition existing prior to his report and analysis and that the other medical doctors’
opinions within the 2-year period are not refuted. We read Walling’s argument to state there was
insufficient evidence to support the court’s finding that there was no compensable injury suffered
at all on January 16, 2017, and the court erred in dismissing the case in its entirety.
In connection with his opinion, Dr. Diamant specifically stated:
It is clear that . . . Walling has a preexisting history of recurrent back pain. The confusing
matter is that he had complaints of back pain when he presented to . . . Poskevich on
1-13-17, such pain was incurred when falling January 8. Then, on January 16, he fell once
again. I cannot say to a reasonable degree of medical certainty that the events of 1-16-17
caused his current back pain, lumbar radiculopathy, possible SIJ dysfunction and his
current clinical condition, as he was experiencing back pain over the preceding few weeks
prior to 1/16/17. It is possible that such on 1/16/17 could have aggravated his preexisting
condition, but I cannot say that to a reasonable degree of medical certainty. All I can say is
it is possible.
Walling asserts Dr. Diamant’s opinion only suggests Walling’s then-current conditions
could not be related to the January 16, 2017, accident but that this testimony cannot be read to
support an opinion as to causation for the 2-year period preceding this opinion. We disagree.
Although Dr. Diamant does say in his opinion that “I cannot say to a reasonable degree of medical
certainty that the events of 1-16-17 caused his current back pain, lumbar radiculopathy, possible
SIJ dysfunction and his current clinical condition,” Dr. Diamant later qualifies that remark by
saying “as he was experiencing back pain over the preceding few weeks prior to 1/16/17.”
(Emphasis supplied.) As such, at least one possible interpretation of this opinion by Dr. Diamant
is that Walling’s entire condition for which he sought recovery preexisted the January 16, 2017,
incident, which is what the trial court eventually concluded.
When the record presents nothing more than conflicting medical testimony, an appellate
court will not substitute its judgment for that of the compensation court. Damme v. Pike Enters.,
289 Neb. 620, 856 N.W.2d 422 (2014). The court, as the trier of fact and when presented with
Walling’s testimony along with comprehensive medical records, is in an optimal position to
determine the credibility of expert and witness opinions. Hynes v. Good Samaritan Hosp., 291
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Neb. 757, 869 N.W.2d 78 (2015). On appellate review, the factual findings made by the trial judge
of the compensation court have the effect of a jury verdict and will not be set aside unless clearly
wrong. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020). In testing the
sufficiency of the evidence to support findings of fact in a workers’ compensation case, an
appellate court considers the evidence in a light most favorable to the successful party, and the
appellate court gives the successful party the benefit of every inference reasonably deducible from
the evidence. Id.
Applying that standard here, we find there is a reasonable inference deducible from the
evidence that Dr. Diamant did opine that he could not, to a reasonable degree of medical certainty,
relate any of Walling’s complaints or injuries to the January 16, 2017, event. We further find that
based upon this opinion and the other evidence outlined by the court in its order, we cannot say
the court was clearly wrong in finding Walling failed to satisfy his burden of proof on the issue of
causation. Stated differently, we hold the court did not clearly err in finding Walling failed to prove
he sustained any new injury as a result of the January 16, 2017, incident. This assigned error fails.
PRE-EXISTING CONDITION
Walling finally assigns that the court abused its discretion in failing to make findings of
fact under the appropriate aggravation of preexisting condition analysis and framework thereby
departing from the court’s obligation under rule 11(A). Walling specifically argues:
The trial [c]ourt completely left out any referenced (sic) to the statute or caselaw regarding
the concept of aggravation of a preexisting injury. It is the very lens through which the
analysis should have started. Instead, the trial [c]ourt placed the incorrect burden on
Walling to prove that all of his low back problems from day one were caused by the fall at
work on January 16, 2017.
Brief for appellant at 23.
As we already discussed before, the court’s order complied with the requirements of rule
11(A). That said, we interpret Walling’s argument as suggesting that the evidence was insufficient
to support the court’s conclusion that his January 16, 2017, fall, did not, at a minimum, constitute
an aggravation of Walling’s preexisting condition. We will analyze Walling’s assigned error on
that basis.
“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.” Swanson v. Park Place
Automotive, 267 Neb. 133, 138-39, 672 N.W.2d 405, 411 (2003). “Such claimant may recover
when an injury, arising out of and in the course of employment, combines with a preexisting
condition to produce disability, notwithstanding that in the absence of the preexisting condition,
no disability would have resulted.” Id. at 139, 672 N.W.2d at 411-12. In short, “the lighting up or
acceleration of preexisting conditions by accident is compensable.” Id. at 139, 672 N.W.2d at 412.
Further, if the evidence shows the accident is a contributing cause of the injury, a claimant is not
required to prove an apportionment of symptoms to an accident: “‘The law does not weigh the
relative importance of the two causes, nor does it look for primary and secondary causes; it merely
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inquires whether the employment was a contributing factor. If it was, the concurrence of the
personal cause will not defeat compensability.’” Damme v. Pike Enters., 289 Neb. 620, 631, 856
N.W.2d 422, 432-33 (2014).
Before applying that precedent here, we first note that Walling did not appear to plead or
prove the January 16, 2017, incident aggravated a preexisting injury. In fact, in attempting to
provide support for the proposition that Walling suffered a new injury on January 16, Walling
offered a March 2017 medical report from Dr. McClellan which indicated Walling sought
treatment for pain in his right lower extremity and lower back resulting from a fall against a
concrete curb while at work which impacted mostly his lower back and pelvis. Dr. McClellan
noted Walling had a weight lifting limitation of 30 pounds. A separate report from Dr. McClellan
dated August 23, 2017, stated Walling has “a history of a work-related injury in 1/16/17” but does
not mention any of Walling’s previous injuries or any preexisting back condition. Although in one
record Dr. McClellan makes general reference to “past medical history reviewed,” his notes do not
specify the contents of the reviewed medical history and do not indicate that Walling informed
him of his preexisting back condition beginning in 2013. In short, Dr. McClellan’s medical reports
do not mention any aggravation of a preexisting condition and his opinion on causation related
solely to the January 16, 2017, incident.
Additionally, when discussing Walling’s preexisting medical status in Dr. Diamant’s
original February 12, 2019, report, Dr. Diamant stated, “Walling indicated that his only complaint
previously was in 2016 and it resolved completely up until the time of the slip and fall in 2017.”
Based upon that history provided to him, Dr. Diamant originally concluded Walling’s current
symptomology was a result of his fall at work. However, after reviewing additional medical
records spanning from November 2013 to March 2017, Dr. Diamant changed his opinion stating
that, because of Walling’s preexisting history of recurrent back pain, Dr. Diamant could not say to
a reasonable degree of medial certainty that the work fall caused Walling’s current symptomology.
Dr. Diamant further opined “it is possible that such on 1/16/17 could have aggravated his
preexisting condition, but I cannot say that to a reasonable degree of medical certainty. All I can
say is it is possible.”
As it relates then to the record supporting a theory of aggravation, that matter is contested.
Dr. McClellan provided no opinion that this was an aggravation of a preexisting condition because
he did not appear to know about any preexisting condition. Poskevich did provide such an opinion
while suggesting in her March 10, 2017, letter that the January 16, 2017, fall at work was a
“contributing factor to [Walling’s] current condition” at least as of March 10, 2017. Dr. Diamant
stated that whereas it was at least possible the January 16, 2017, fall contributed to his injury, he
could not say so to a degree of reasonable certainty. Based upon that evidence and on review of
the record, we again conclude that we cannot say the court was clearly wrong in holding Walling
failed to satisfy his burden of showing the January 16, 2017, incident aggravated a preexisting
condition. Accordingly, we affirm the compensation court’s order dismissing Walling’s petition
in its entirety.
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CONCLUSION
We conclude the compensation court correctly found Walling’s work accident did not
cause the injuries complained of and the court’s order complied with the requirements of rule
11(A). Therefore, we affirm the order of the Workers’ Compensation Court.
AFFIRMED.
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