Howell v. Transit Authority of the City of Omaha

Lincoln, Nebraska Workers' Compensation lawyer represented appellant with appealing the decision of the Workers' Compensation Court asserting that the compensation court's orders exceeded its authority.

In 2009, Howell began working as a bus driver for Metro. At the time of her bus driving

accident and injury in 2019, Howell was also working part-time for the Transportation Security

Administration (TSA) as a security guard at the airport. On February 17, 2019, a metal bar

detached from the bus Howell was driving for Metro, striking her right arm and causing injury.

After her injury, Howell attempted to return to work at Metro on two occasions. She returned first

in late April or early May after receiving some cortisone injections but was unable to keep working

due to increased pain and issues with her grip. Her second attempted return to work for Metro was

in mid to late July. After discussing her medical records with her supervisor, it was agreed that she

did not have to drive a bus. At the time of the evidentiary hearing in this case, Howell testified that

she had offered to undergo additional training for some other position but that no one from Metro

had ever contacted her in that regard. TSA accommodated Howell's work restrictions, but she

resigned from her TSA job at the end of August 2019.

2. PETITION AND ANSWER

On July 7, 2020, Howell filed a petition in the compensation court seeking benefits. Howell

alleged a work-related accident to her right arm occurring on February 17, 2019, which resulted in

her developing complex regional pain syndrome (CRPS) affecting her "neck, upper back and other

areas of her body.” Howell alleged that the matters in dispute were payment of past and future

temporary total disability benefits; payment of permanent partial disability benefits; payment of

past and future medical expenses; vocational rehabilitation; and penalties, interest and attorney

fees.

In its answer, Metro admitted that Howell was employed by Metro as a bus operator on

February 17, 2019, but it denied the other substantive allegations of Howell's petition. Metro

affirmatively alleged that no present controversy existed between the parties because Metro had

already paid, without admitting liability, all workers' compensation benefits due to Howell as if

her injuries were compensable. Metro also alleged that Howell's alleged injuries did not arise out

of and in the course and scope of her employment with Metro, that her alleged injuries were not

causally related to her employment, and that, even if Howell had suffered a compensable injury, it

did not result in any temporary or permanent disability or any loss of earning capacity. Metro

sought reimbursement of the payments it had made and asked the compensation court to dismiss

Howell's petition with prejudice.

3. HOWELL'S MOTION TO COMPEL

On August 18, 2020, Howell filed a motion to compel, asking the compensation court to

compel Metro to pay for a functional capacity evaluation (FCE) and to appoint a vocational

rehabilitation counselor. In her motion, Howell again alleged that she developed CRPS as a result

of her work-related accident and injury. She alleged that both her treating physicians and defense

medical examiners had confirmed that diagnosis. She stated that defense medical examiner Dr.

Dean Wampler had opined that she had reached maximum medical improvement (MMI) and

recommended an FCE to determine appropriate physical restrictions, but that the parties had been

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unable to agree on a facility to conduct the FCE. Finally, because Howell did not think she could

return to work as a bus driver, she asked the court to appoint a vocational rehabilitation counselor

to complete a loss of earning capacity analysis and a vocational rehabilitation evaluation.

Subsequently, Howell filed an amended motion to compel in which she added an assertion that she

was in need of additional medical treatment as recommended by her pain management specialist,

Dr. Rafal Krejza. Specifically, Howell alleged that in a recent office visit, Krejza had

recommended "additional injections to help alleviate the pain and disability [Howell] is

experiencing due to the work[-]related injury.” In addition to her previous requests of payment for

the FCE and appointment of a vocational rehabilitation counselor, Howell asked the court to enter

an order "allowing [her] additional treatment as recommended by her treating physician.”

4. HEARING ON MOTION TO COMPEL

The compensation court heard Howell's motion on September 4, 2020. The court received

documentary exhibits offered by the parties, including various medical records and a stipulation

of the parties. The parties stipulated that (1) on February 17, 2019, Howell was employed as a bus

driver for Metro, (2) on that date, a metal bar became detached from the bus striking Howell's

right arm causing injury but the nature and extent of the injury was at issue, (3) Metro had timely

notice of the accident and injury, (4) jurisdiction and venue were proper, and (5) Metro had paid

certain benefits, both medical and indemnity, for which they were entitled to credit. After receiving

the parties' exhibits, the court noted that there had been "no specific finding of liability” in the

case, stating that this "would make it difficult to decide some of the issues raised in the motion.”

However, in reference to the parties' stipulation, the court observed that "there is an admission of

some liability” and that "the question now becomes what's the injury.” Metro's attorney responded

affirmatively to this understanding of the case expressed by the trial judge. He then advised that

the parties had resolved the issue relating to the FCE raised in Howell's motion to compel. The

parties' attorneys also discussed the issue of appointing a vocational rehabilitation counselor with

the court, and the court determined that it would appoint a vocational rehabilitation counselor to

begin work after the FCE had been performed. The court then discussed with the attorneys some

of the medical treatment reflected in the medical records, noting "there's been a lot of doctors in

here” and stating, "I probably ought to have some evidence on why we're changing these docs”

and "about what's going on.” The court then called Howell to the stand. We have summarized the

medical evidence and Howell's testimony below.

(a) Medical Evidence Offered by Howell

On February 17, 2019, Howell was examined in the emergency room for pain and tingling

in her right arm. The emergency room records note some numbness and tingling in the entire hand

and underside of her arm. Howell was bruised and most worried about the tingling in her fingers,

hand, wrist, and forearm. She was given over-the-counter pain medication and referred to Dr.

Kayvon D. Izadi, an orthopedic surgeon. The following day, Howell was examined by Dr. Darin

Gregory at CompChoice for "blunt trauma to her right arm.” At that time, she had pain in the

forearm and the trapezius areas and some decreased sensation in her third, fourth, and fifth fingers.

Gregory diagnosed a right forearm contusion, ordered physical therapy, and placed her on

modified work duty with no driving a commercial motor vehicle.

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Howell's medical treatment from February 2019 through the time of the hearing on her

motion is complex and involves numerous doctors (including orthopedic and pain management

doctors) and treatments (including medication, physical therapy, and nerve block injections).

(b) Medical Evidence Offered by Metro

Metro offered a report from Wampler dated July 14, 2020. Wampler's report was based on

a review of Howell's medical records, video from the February 2019 bus accident and injury, and

his own recent physical examination of Howell. Wampler outlined the course of Howell's medical

treatment before setting forth the conclusions of his review.

Initially, Wampler expressed that "Howell's history of symptoms and treatment following

an injury in February [2019] did not have a good physician to direct her care to specialists.” He

stated further that her symptoms "morphed into an extensive complex of symptoms that cannot

have causal connection to the original event.” Wampler noted Izadi's diagnosis of "forearm

contusion with radial neuritis,” and Wampler opined, "It is my opinion within a reasonable degree

of medical certainty this was the only correct diagnosis for [Howell's] injury.” Wampler then

recounted further details of Howell's medical treatment, including his examination of her on May

11, 2020. He noted that Dr. Jeremy K. Gallant (a physiatrist who first saw Howell on April 9,

2019) had already performed medial branch blocks for neck pain by then that had allowed

improvement, but Wampler opined that Howell's neck pain, "perpetuating over many months,”

was a condition "caused only by the expected advancement of underlying cervical degenerative

disease, rather than the incident on the bus.”

In sum, Wampler concluded that Howell sustained "only a right forearm contusion and

possible radial nerve inflammation that resolved.” Wampler stated that Howell's claim "took on a

life of its own” when Izadi suggested physiatry referral "for what he recognized as a pre-existing

condition.” He opined, "Izadi's focus on right wrist symptoms that were found to be caused by a

pre-existing degenerative condition could not have been aggravated by the impact.” Wampler

observed that Howell complained about neck, shoulder, and arm symptoms "that were probably

related to her cervical disk disease and facet arthropathy, but also could not have been aggravated

by the mechanism of injury.” He noted, "[t]here was no traction to the upper arm [during the

accident], just impact between the bar and the armrest of her bus seat.” Finally, Wampler opined

that Howell had reached MMI at the time of his examination of her on May 11, 2020. Because

there had been difficulty at that time with Howell agreeing to an FCE, Wampler also concluded

that Howell "can be released to return to work without restrictions” and "has 0% impairment.”

(c) Howell's Testimony

In response to questioning by the parties' attorneys and the trial judge, Howell testified

about her accident, medical treatment, efforts to return to work, and current symptoms in her right

upper extremity. At the time of her testimony, Howell had cramping in her palm, diminished

mobility, shooting pain in her arm, and throbbing pain from her forearm to her wrist. She stated

that she was unable to "grip, pull, and turn.” Howell was also experiencing and still had limited

neck mobility. She testified that neck movement caused shooting pain in her head and migraine

flare ups. According to Howell, she had never had migraines or right arm pain prior to the February

2019 accident. About 5 or 6 years previously, Howell was injured in an accident and received

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physical therapy, which included neck massage. Howell testified that her symptoms from that

accident resolved prior to the 2019 accident. Howell testified that her current symptoms affect her

daily activities and that she is not currently able to drive a bus safely or without pain. She asked

the compensation court to allow her to continue treatment with Krejza and to have Metro pay for

it.

5. RULING ON MOTION TO COMPEL

On December 9, 2020, the compensation court entered an order, ruling on Howell's

amended motion to compel. After setting forth a lengthy recitation of the medical evidence

received at the hearing on Howell's motion, the court stated that Howell was a credible witness,

that it believed her, and that "her complaints of pain are real.” The court found that Howell injured

her neck, right arm, right wrist, and right hand in an accident arising out of her employment with

Metro on February 17, 2019. The court noted that the record showed that Rakes, Dr. M. Andrew

Thompson (an orthopedic doctor Howell saw for a second opinion,) and Krejza "state [Howell]

has [CRPS].” The court noted Gallant's opinion that Howell did not meet "strict criteria” for CRPS

but that she did have "abnormal peripheral nerve issues.” The court then found that Howell has

CRPS, stating that it was disregarding Wampler's opinion to the contrary. Next, the court found

that Howell had not yet reached MMI "because it appears the only remaining treatment is ketamine

injections ordered by . . . Krejza,” after which it "appears there is nothing more that can be done

to relieve [Howell's] pain.” The court stated that Howell would "most likely” have reached MMI

at that point, and it ordered Metro to pay for the ketamine injections. The court also ordered Metro

to pay temporary total benefits to Howell from the point it had previously stopped such payments

until when she reached MMI, and it ordered Metro to pay for Howell's future medical care "all as

required by [Neb. Rev. Stat.] § 48-120 [(Cum. Supp. 2020)], including but not limited to, the

ketamine injections.” Finally, the court granted Howell's request for appointment of a vocational

rehabilitation counselor.

6. MOTION TO RECONSIDER OR MODIFY, RULING, AND APPEAL

On December 21, 2020, Metro filed a motion, asking the compensation court to reconsider

or modify its December 9 order, in which Metro alleged the court had made "explicit and implicit

factual findings regarding [Howell's] medical condition and treatment that should be resolved at

trial and not as part of [Howell's] [m]otion.” Metro alleged that no evidence admitted at the hearing

on Howell's motion contained "the requisite proof from which to properly infer that any diagnosis

of [CRPS] is sufficiently causally linked to [Howell's] work-related injury.” Metro noted that

Howell's motion was filed and heard before the parties completed discovery, and it asked the court

not to make factual findings based on the evidence presented at the September hearing and instead

to set a trial date.

The compensation court heard Metro's motion to reconsider or modify on December 22,

2020. At the hearing, Metro's attorney noted that Howell's amended motion to compel had asked

the court to (1) order for Metro to pay for an FCE, (2) appoint a vocational rehabilitation counselor,

and (3) order Metro to pay for ketamine injections. The attorney stated that since the FCE request

was resolved prior to the hearing, he left the hearing expecting an order regarding the vocational

rehabilitation request and whether Howell was entitled to the requested ketamine injection

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treatment. He argued that the court's order "went above and beyond that” and addressed matters

that should have been reserved for a trial. Metro's attorney argued that because the parties had not

stipulated as to the nature and extent of Howell's injury, the court was not able to award future

medical expenses at that time. He also argued that issues regarding future medical expenses (other

than the ketamine injections), the date of MMI, and temporary total disability benefits had not been

raised in Howell's motion and needed to be addressed at trial after the completion of discovery.

Finally, he argued that even if a pretrial award of future medical expenses was proper, "Howell

still failed to meet the burden of showing that there's a causal connection between her [CRPS] and

the work accident.”

During the hearing on Metro's motion, the compensation court characterized the

September 2020 hearing on Howell's motion as "a trial on a motion.” Metro's attorney disagreed

with this characterization, arguing that "if we're going to be having a trial, we need to be able to

complete discovery. It's a due process point.” He noted that Howell's amended motion was filed

only about 2 months after Howell's petition, and he argued that Metro had been deprived of the

opportunity to conduct discovery, take depositions, and prepare experts. When the court inquired

whether it had to order temporary disability benefits in conjunction with ordering the medical

treatment requested in Howell's motion, Metro's attorney replied negatively, suggesting that

Howell could always "come back at trial and ask for those benefits.” The court then discussed with

Metro's attorney how the concept of MMI fit in with Howell's requests in her motion. During this

discussion, Metro's attorney again noted due process concerns. The court indicated that it would

have responded favorably if Metro's attorney had sought a continuance, but Metro's attorney

stated that he had not done so "because it was a motion to compel.”

The compensation court and Metro's attorney then discussed the timing of awarding

medical benefits and determining the nature and extent of a claimant's injuries. Metro's attorney

again argued that the court should not have determined "what [Howell's] injuries are” following

the hearing on Howell's motion to compel and that it should have waited either until after the

parties had stipulated as to the nature and extent of Howell's injuries or until after trial to do so.

During this discussion, the court stated:

In our court on a motion to compel, if there's liability then we realize whether or

not the treatment is reasonable and necessary to treat the injury. That's it. We don't have

to go to a trial. We don't have to go to a trial at all. . . . Why should we -- number one, I

shouldn't make the plaintiff wait. Number two, I . . . wouldn't make the parties go through

the time and expense and everything for something that everybody agreed upon, except

whether or not this is necessary and reasonable to treat the injury. That's the only issue in

the case.

The court also stated, "But . . . when they come in and they want medical care, I don't think we

need to have a trial if there's liability.”

During the course of additional discussion, the compensation court expressed its belief that

determining whether Howell had CRPS was a necessary part of determining whether to grant

Howell's request for ketamine injections to treat CRPS. Metro's attorney argued during this

portion of the discussion that even if awarding medical benefits at this stage of the case was

appropriate, there had not been evidence to link Howell's work injury and her CRPS. The court

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disagreed, citing "the medical records as a whole” and particularly Thompson's records. At the

conclusion of the hearing, the court indicated that it was going to overrule Metro's motion "and

refer to what we talked about here today.”

On December 22, 2020, the compensation court entered an order denying Metro's motion

to reconsider or modify the December 9 order "[f]or reasons dictated to the court reporter” at the

December 22 hearing.

Metro subsequently perfected its appeal to this court.

III. ASSIGNMENTS OF ERROR

Metro asserts, consolidated and restated, that the compensation court acted without or in

excess of its powers when on a pretrial motion limited to certain matters, it made certain broader

explicit and implicit findings, namely, (1) implicitly finding that Howell had met her burden of

proof to show that her work accident was the proximate cause of her CRPS injury, (2) finding that

Howell had not yet reached MMI, (3) determining whether Howell had suffered any periods of

temporary disability, and (4) finding Howell was entitled to future medical care, including

ketamine injections. We note that Metro does not challenge the court's appointment of a vocational

rehabilitation counselor.

IV. STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an

appellate court as a matter of law. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183

(2020). An appellate court is obligated in workers' compensation cases to make its own

determinations as to questions of law. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298

(2021). Statutory interpretation presents a question of law, for which an appellate court has an

obligation to reach an independent conclusion irrespective of the decision made by the court below.

Sellers v. Reefer Systems, 305 Neb. 868, 943 N.W.2d 275 (2020).

V. ANALYSIS

Before reaching the legal issues presented for review, it is the power and duty of an

appellate court to determine whether it has jurisdiction over the matter before it, irrespective of

whether the issue is raised by the parties. Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937

N.W.2d 487 (2020). For an appellate court to acquire jurisdiction of an appeal, there must be a

final order entered by the court from which the appeal is taken; conversely, an appellate court is

without jurisdiction to entertain appeals from nonfinal orders. Id.

There are three types of final orders which may be reviewed on appeal, one of which is an

order that affects a substantial right made during a special proceeding. Id. Because workers'

compensation proceedings are special proceedings, the issue is whether the court's order is final.

Id.

Under Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020), an appellate court may review three

types of final orders: (1) an order that affects a substantial right and that determines the action and

prevents a judgment, (2) an order that affects a substantial right made during a special proceeding,

(3) and an order that affects a substantial right made on summary application in an action after a

judgment is rendered. Loyd v. Family Dollar Stores of Neb., supra.

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The second category is applicable here. A party can appeal an order from the Workers'

Compensation Court if it affects the party's substantial right. Moyers v. International Paper Co.,

25 Neb. App. 282, 905 N.W.2d 87 (2017). Substantial rights under § 25-1902 include those legal

rights that a party is entitled to enforce or defend. Moyers v. International Paper Co., supra. A

substantial right is affected if an order affects the subject matter of the litigation, such as

diminishing a claim or defense that was available to an appellant before the order from which an

appeal is taken. Id.

The Nebraska Supreme Court has held that, even in workers' compensation cases, when

multiple issues are presented to a trial court for simultaneous disposition in the same proceeding

and the court decides some of the issues, while reserving other issues for later determination, the

court's determination of fewer than all the issues is an interlocutory order and is not a final order

for the purpose of an appeal. Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013). In

Jacobitz, the claimant argued that he had not yet reached maximum medical improvement, but that

the issue of whether he was injured in the scope of his employment should be tried first. The trial

court granted a motion to bifurcate the trial. Following trial on the issue of liability, the court

entered an order concluding that the claimant was injured in an accident arising out of and in the

course of his employment. In the order, the court scheduled a subsequent telephone conference to

set a trial date to determine benefits. The employer appealed from this order.

On appeal, the Nebraska Supreme Court observed that permitting employers to appeal from

an adverse ruling before the Workers' Compensation Court has determined benefits is inconsistent

with the Legislature's intent to provide prompt benefits to injured workers. Id. It also held that

from the date of its decision, a Workers' Compensation Court's finding of a compensable injury

or its rejection of an affirmative defense without a determination of benefits is not an order that

affects an employer's substantial right in a special proceeding. Id. The court concluded that the

employer had not appealed from a final order because the trial court had only determined that the

claimant's accident occurred in the scope of his employment.

Subsequently, in Moyers v. International Paper Co., supra, this court considered a case in

which the trial court entered an award, finding that the claimant met his burden of proving he

sustained an occupational disease arising out of his employment. The court determined the dates

when the claimant became temporarily totally disabled and when he reached maximum medical

improvement. It also determined that the claimant was entitled to vocational rehabilitation

services, but it reserved the issue of permanent partial disability benefits until after the claimant

had received vocational rehabilitation services. Specifically, the court found that "[a]fter

vocational rehabilitation services have been provided to [Moyers] as a result of the injuries

incurred [in September 2014], a further hearing may be had on the extent of [his] permanent partial

disability measured as a loss of earning power.” Moyers v. International Paper Co., 25 Neb. App.

at 285-86, 905 N.W.2d at 91. The court also found the claimant was entitled to certain medical

expenses, but denied his requests for future medical expenses, waiting-time penalties, attorney

fees, and interest. Later, the claimant filed a motion, seeking determination of his loss of earning

capacity, based on the vocational consultant's opinion that the claimant would be unable to

participate in vocational rehabilitation; the employer filed a motion to compel vocational

rehabilitation. Following a hearing on these motions, the trial court entered an order finding that

the claimant had sustained a 100-percent loss of earning capacity, was entitled to permanent total

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disability benefits, and determined the amount of those benefits. The employer appealed from this

second order.

On appeal to this court, the claimant argued that the first order was a final appealable order

and that because the employer had failed to appeal from it, this court was without jurisdiction to

consider any of the issues adjudicated in the first order. The employer argued that the first order

was interlocutory because it left open the question of the claimant's entitlement to permanent

disability payments until after he underwent vocational rehabilitation services. In light of the

Nebraska Supreme Court's determination in Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d

377 (2013), we determined in Moyers, that the first order was not a final appealable order because

the trial court reserved the issue of "'permanent partial disability [benefits] measured as a loss of

earning power'” until after the provision of vocational rehabilitation services. Moyers v.

International Paper Co., 25 Neb. App. 282, 291, 905 N.W.2d 87, 97 (2017). We determined that

once the trial court determined in the second order that the claimant was permanently and totally

disabled and entitled to benefits, there were no further issues to be adjudicated. Accordingly, we

found that the employer's appeal from that second order was timely and we had jurisdiction to

address its assigned errors on appeal.

In the present case, the trial court determined that Howell injured her neck, right arm, right

wrist, and right hand in an accident arising out of her employment with Metro. It found that Howell

had not yet reached MMI and ordered Metro to pay temporary total disability benefits from the

point it had previously stopped making such payments until Howell reached MMI. The court stated

that once Howell reached MMI she "may be entitled to permanent benefits,” and that if the parties

could not agree on the amount of such benefits, either party "may apply to the Court for a further

hearing.” The court also determined that Howell was entitled to future medical care, including the

requested ketamine injections, and ordered the appointment of a vocational rehabilitation

counselor. We conclude that the court's December 2020 order ruling on Howell's motion to

compel was not a final determination of benefits as the court reserved the issue of permanent

benefits until after the provision of vocational rehabilitation benefits.

Because the order appealed from was not a final order, the appeal must be dismissed and

we need not further address the assigned errors

The compensation court’s December 2020 order ruling on Howell’s motion to compel was

not a final, appealable order. Accordingly, we dismiss the appeal and remand the cause for further proceedings.



APPEAL DISMISSED, AND CAUSE REMANDED

FOR FURTHER PROCEEDINGS