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Ismael Contreras, appellee, v. 

T.O. Haas, LLC, appellant.

___ N.W.2d ___

Filed August 19, 2014. No. A-13-673.

1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of 

the Workers’ Compensation Court may be modified, reversed, or set aside only 

upon the grounds that (1) the compensation court acted without or in excess of its 

powers; (2) the judgment, order, or award was procured by fraud; (3) there is not 

sufficient competent evidence in the record to warrant the making of the order, 

judgment, or award; or (4) the findings of fact by the compensation court do not 

support the order or award.

2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a 

judgment of the Workers’ Compensation Court, an appellate court reviews the 

trial judge’s findings of fact, which will not be disturbed unless clearly wrong.

3. ____: ____. Regarding questions of law, an appellate court in workers’ compensation cases is obligated to make its own decisions.

4. Workers’ Compensation: Rules of Evidence. As a general rule, the Nebraska 

Workers’ Compensation Court is not bound by the usual common-law or statutory 

rules of evidence.

5. Workers’ Compensation: Rules of Evidence: Legislature: Due Process.

Subject to the limits of constitutional due process, the Legislature has granted 

the compensation court the power to prescribe its own rules of evidence and 

related procedure.

6. Workers’ Compensation: Expert Witnesses. In a workers’ compensation case, 

an expert witness must qualify as an expert and the testimony must assist the trier 

of fact to understand the evidence or determine a fact in issue.

7. ____: ____. Expert testimony in a workers’ compensation case must be based on 

a reasonable degree of medical certainty or a reasonable probability.

8. ____: ____. Although expert medical testimony in workers’ compensation cases 

must be based on a “reasonable degree of medical certainty” or “reasonable probability,” the testimony need not be couched in those exact, magic words.

9. Workers’ Compensation: Proof. Under the Nebraska Workers’ Compensation 

Act, a claimant is entitled to an award for a work-related injury and disability if 

the claimant shows, by a preponderance of the evidence, that he or she sustained 

an injury and disability proximately caused by an accident which arose out of and 

in the course of the claimant’s employment.

10. ____: ____. To recover workers’ compensation benefits, an injured worker is 

required to prove by competent medical testimony a causal connection between 

the alleged injury, the employment, and the disability.

11. Workers’ Compensation: Expert Witnesses. The Workers’ Compensation Court 

is entitled to accept the opinion of one expert over another.

12. Workers’ Compensation. As the trier of fact, the Workers’ Compensation Court 

is the sole judge of the credibility of the witnesses and the weight to be given 

their testimony.
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CONTRERAS v. T.O. HAAS 277

Cite as 22 Neb. App. 276

Appeal from the Workers’ Compensation Court: J. Michael

Fitzgerald, Judge. Affirmed.

John W. Iliff, of Gross & Welch, P.C., L.L.O., for appellant.

William V. Steffens and Jeremiah J. Luebbe, of Steffens Law 

Office, P.C., for appellee.

Irwin and Bishop, Judges.

Per Curiam.

I. INTRODUCTION

On appeal, T.O. Haas, LLC, asserts that the Workers’ 

Compensation Court erred in admitting certain exhibits into 

evidence and in finding that Ismael Contreras is permanently 

and totally disabled. We affirm.

II. FACTUAL BACKGROUND

In 2006, Contreras was hired by T.O. Haas as a certified 

tire technician. As a part of Contreras’ job, he was required to 

remove old tires from vehicles, repair tires, and place either 

new or repaired tires back on the vehicles. On August 23, 

2010, Contreras was working at T.O. Haas and was trying 

to change a tire on a “skid steer.” In working with the tire, 

Contreras turned to his left to lower the tire to the ground when 

he felt “a sharp pain go through [his] back.” Contreras reported 

the injury to his supervisor.

Contreras attempted to return to work the day after his 

injury, but was unable to work for even an hour. Contreras 

has not returned to work at T.O. Haas since the day after he 

incurred the injury to his back. In fact, other than working 

part time delivering newspapers for approximately 2 months 

in 2012, Contreras has not worked anywhere since August 

24, 2010.

In September 2010, Contreras made an appointment with 

his family physician, Dr. Jason Citta, because the pain in 

his back had not improved since August 23. Dr. Citta prescribed Contreras pain medication, ordered an MRI, and 

referred him to a physical therapist. During the months of 

September and October, however, Contreras continued to see 
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Dr. Citta and continued to complain about severe back pain. 

Dr. Citta referred Contreras to Dr. Burt McKeag for further 

pain management.

On October 12, 2010, Contreras saw Dr. McKeag. After Dr. 

McKeag’s examination, he noted the following in his report:

[Contreras] is involved in litigation with workman’s compensation. His story and injury are very reasonable, but he 

does tend to have an exaggerated presentation. I reviewed 

his MRI and he does have significant NF stenosis at 

L5/S1 on the left consistent with his symptoms. I feel 

that it is reasonable to proceed with a [lumbar epidural 

steroid injection].

Dr. McKeag administered the injection to Contreras on 

November 16. Contreras reported that he did not receive any 

significant relief from this injection. As a result of Contreras’ 

reports of continued back pain, Dr. Citta referred him to a neurosurgeon, Dr. Omar Jimenez.

Dr. Jimenez diagnosed Contreras as suffering from “degenerative disc disease at L4-5 and also at L5-S1 with a large 

herniated disc on the right at L5-S1, which also extends centrally slightly to the left.” He recommended that Contreras 

undergo back surgery. In March 2011, Contreras had back 

surgery. After the surgery, Contreras reported that he was 

“having significant right SI joint discomfort.” Dr. Jimenez 

prescribed pain medication, including another injection. In 

addition, he advised Contreras to continue to attend physical therapy.

In June 2011, approximately 3 months after his surgery, 

Contreras reported that he was experiencing “excruciating pain 

lateral to [his] incision up in the hip area.” Contreras stated 

that the pain was “disabling.” Dr. Jimenez indicated he was 

“baffled by his symptoms and would like to proceed with 

[an] MRI . . . . It is likely that he may be suffering from sacroiliac joint pain, although he states this is better in addition 

to his trochanter pain.” Ultimately, Dr. Jimenez prescribed 

Contreras additional pain medication and ordered him to be 

more “aggressive in his recuperation.” Dr. Jimenez believed 

that physical therapy would help Contreras heal. However, Dr. 

Jimenez also noted that the MRI revealed “evidence of facet 
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hypertrophy bilaterally at 4-5 and 5-1 . . . which may be an 

issue that may need to be addressed in the future.”

Contreras returned for a followup visit with Dr. Jimenez in 

August 2011, where he continued to report severe back pain. 

At this appointment, Dr. Jimenez recommended that Contreras 

undergo a spinal fusion surgery. After receiving a second opinion about the spinal fusion surgery, Contreras elected not to 

undergo the procedure.

After his August 2011 appointment with Dr. Jimenez, 

Contreras returned to the care of Drs. Citta and McKeag. The 

doctors continued to prescribe pain medication and recommended physical therapy. Contreras continued to report ongoing back pain.

III. PROCEDURAL BACKGROUND

On December 22, 2010, Contreras filed a petition in the 

Nebraska Workers’ Compensation Court alleging that he had 

been injured in the scope and course of his employment with 

T.O. Haas. Contreras requested that, as a result of his injury, 

he be awarded temporary and permanent disability benefits. He 

also requested that T.O. Haas be ordered to pay for his medical bills.

On March 1, 2013, a trial was held. At the trial, T.O. Haas 

stipulated that Contreras injured his back on August 23, 2010, 

while at work. It also stipulated that the injury to Contreras’ 

back required surgery in March 2011. However, T.O. Haas specifically disputed the extent of Contreras’ work restrictions and 

loss of earning capacity as a result of his back injury.

Contreras testified at trial regarding the accident and his 

resulting injury. During his testimony, Contreras indicated that 

he continues to take pain medication for his back on a daily 

basis. In fact, he testified that he has taken some type of pain 

medication for his back continuously since August 23, 2010. 

He also testified that despite this pain medication, he continues to suffer from back pain. He explained that during his 

testimony, his back was “throbbing and ha[d] a burning sensation.” He rated his pain at “a 7 to an 8” on a scale of 1 to 10. 

Contreras also testified that he has previously been convicted 

of a felony.
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In addition to Contreras’ testimony, both parties offered 

numerous exhibits, including Contreras’ medical records from 

various doctors. Although we have reviewed this voluminous 

medical evidence in its entirety, we do not detail such evidence here. Rather, we simply note that there was conflicting 

evidence presented concerning the degree of Contreras’ impairment, the cause of Contreras’ ongoing back pain after his back 

surgery, and Contreras’ ability to return to any type of employment. We will set forth the specific facts as presented at the 

trial as necessary in our analysis below.

After the parties’ presentation of evidence, the trial court 

entered an extremely detailed, 11-page order in which it evaluated all of the evidence presented. Ultimately, the court found 

that Contreras reached maximum medical improvement in 

September 2011, after he had decided not to undergo the spinal 

fusion surgery. The court found that prior to September 2011, 

Contreras was entitled to temporary total disability benefits, 

and that after September 2011, he continued to be totally disabled and, as such, was entitled to permanent total disability 

benefits. The court also awarded Contreras compensation for 

past and future medical expenses.

T.O. Haas appeals from the trial court’s order.

IV. ASSIGNMENTS OF ERROR

On appeal, T.O. Haas assigns the following as errors: (1) The 

trial court erred by admitting certain exhibits into evidence, (2) 

the trial court was clearly wrong in awarding permanent total 

disability when there was insufficient competent and qualified medical evidence to prove a causal connection between 

Contreras’ injury (and injury-related surgery) and postsurgery 

restrictions, and (3) there was insufficient competent evidence 

to support an award of permanent total disability.

V. ANALYSIS

1. Standard of Review

[1-3] 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 
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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. Rader v. Speer 

Auto, 287 Neb. 116, 841 N.W.2d 383 (2013). In determining 

whether to affirm, modify, reverse, or set aside a judgment of 

the Workers’ Compensation Court, an appellate court reviews 

the trial judge’s findings of fact, which will not be disturbed 

unless clearly wrong. Id. Regarding questions of law, an appellate court in workers’ compensation cases is obligated to make 

its own decisions. Id.

2. Admission of Exhibits

22 and 23

On appeal, T.O. Haas alleges that the trial court erred by 

admitting into evidence portions of exhibit 22, which consists 

of records from Contreras’ physical therapy and a copy of a 

functional capacity evaluation performed on Contreras, and 

portions of exhibit 23, which consists of Contreras’ medical 

records from Dr. McKeag. We will address the admissibility 

of each exhibit; however, first we recount the relevant law that 

overlays our review of the trial court’s determinations regarding the admission of evidence.

[4,5] As a general rule, the Nebraska Workers’ Compensation 

Court is not bound by the usual common-law or statutory rules 

of evidence. Neb. Rev. Stat. §§ 48-168(1) (Reissue 2010) 

and 27-1101(4)(d) (Reissue 2008); Veatch v. American Tool, 

267 Neb. 711, 676 N.W.2d 730 (2004). Subject to the limits 

of constitutional due process, the Legislature has granted the 

compensation court the power to prescribe its own rules of 

evidence and related procedure. § 48-168; Veatch v. American 

Tool, supra.

[6,7] The Nebraska Supreme Court has previously clarified the rules regarding the admissibility of expert testimony 

in workers’ compensation cases. Specifically, the court has 

stated that in a workers’ compensation case, an expert witness 

must qualify as an expert and the testimony must assist the 

trier of fact to understand the evidence or determine a fact 

in issue. Veatch v. American Tool, supra. The witness must 
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have a factual basis for the opinion, and the testimony must 

be relevant. Id. Expert testimony in a workers’ compensation case must be based on a reasonable degree of medical 

certainty or a reasonable probability. Id. An expert opinion in 

a workers’ compensation case based on a mere possibility is 

insufficient, but the standard also does not require absolute 

certainty. See Paulsen v. State, 249 Neb. 112, 541 N.W.2d 

636 (1996).

With these rules in mind, we now address T.O. Haas’ assertions regarding the trial court’s admission of portions of exhibits 22 and 23.

(a) Exhibit 22

Exhibit 22 consists of Contreras’ records from physical therapy, authored by Contreras’ physical therapist, Tyler Sexson. 

In addition, pages 36 through 45 of the exhibit consist of 

the results of a functional capacity evaluation performed on 

Contreras. This evaluation was performed by Sexson. The last 

three pages of the exhibit include Sexson’s responses to questions posed by Contreras’ counsel concerning the functional 

capacity evaluation. Sexson’s answers indicate his professional 

opinion that Contreras “provided an accurate p[or]trayal of 

his current pain and limitations during the [functional capacity evaluation].”

At trial, T.O. Haas objected on the basis of relevance 

and foundation to the functional capacity evaluation and to 

Sexson’s responses to counsel’s questions about that evaluation. In response to T.O. Haas’ objection, Contreras asserted 

that the entire exhibit, including the evaluation and Sexson’s 

responses to the questions, was very relevant to its case: “So 

it’s a critical piece of evidence for our case. And it’s certainly 

very relevant. Why wouldn’t the individual who performed the 

[functional capacity evaluation] in question, . . . Sex[s]on, be 

able to tell us why he believes the results are accurate?” The 

trial court overruled T.O. Haas’ objections and allowed the 

exhibit into evidence.

On appeal, T.O. Haas asserts that the trial court erred in 

admitting pages 36 through 48 of exhibit 22. Specifically, it 

argues that the results of the functional capacity evaluation 
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are not valid because there was some indication of symptom 

magnification. In addition, it argues that Sexson erroneously 

indicated that his opinion about the validity of the results of 

the evaluation was given to a medical degree of certainty, even 

though he is not a medical doctor. T.O. Haas’ assertions have 

no merit.

The results of Contreras’ functional capacity evaluation 

demonstrate Contreras’ level of impairment and his ability 

to perform a variety of movements and tasks in light of 

his injury. This information is clearly relevant to the trial 

court’s determination about Contreras’ disability and his loss 

of earning capacity. And, although there is some indication that 

Contreras was exaggerating his symptoms during the evaluation, this does not make the results inadmissible. Rather, this 

is an issue that T.O. Haas could have, and did, raise at trial. 

In fact, T.O. Haas offered the report of a different doctor who 

had evaluated Contreras and who had a very different opinion 

about Contreras’ level of impairment and about the validity of 

the functional capacity evaluation.

Additionally, although we recognize that in Sexson’s 

responses to counsel’s questions he erroneously indicated that 

he “answer[ed] the . . . questions to a ‘medical degree of certainty,’” even though he is not a licensed physician, we do 

not find that this misstatement equates to all of his answers’ 

being inadmissible. Sexson is a physical therapist who has 

a great deal of experience in performing functional capacity evaluations. In addition, he has a great deal of experience 

with Contreras and with Contreras’ injury and abilities because 

he was Contreras’ physical therapist off and on for a 2-year 

period. Sexson is qualified to offer an opinion about whether 

Contreras was exaggerating his symptoms during the functional capacity evaluation, and such opinion is relevant to the 

trial court’s determination about Contreras’ disability and loss 

of earning capacity.

T.O. Haas’ assertions regarding the admissibility of pages 

36 through 48 of exhibit 22 are without merit. The exhibit, 

in its entirety, was properly admitted and considered by the 

trial court.
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(b) Exhibit 23

Exhibit 23 consists of Contreras’ medical records from 

Dr. McKeag. Such records include Dr. McKeag’s notes from 

Contreras’ numerous visits with him from October 2010 

through October 2012. Also included in exhibit 23, on page 

17, is a copy of the page from Contreras’ functional capacity evaluation with Sexson, which includes Sexson’s summary of Contreras’ physical restrictions and recommendation 

that Contreras is “unable to return to prior job duties fully 

within the lightest Sedentary category of Physical Demand.” 

At the bottom of this page is a handwritten note signed by 

Dr. McKeag. That note states: “I agree with the above recommendations.” Additionally, on page 22 of exhibit 23, there is a 

letter from Contreras’ counsel to Dr. McKeag which asks Dr. 

McKeag to further explain the handwritten note on the functional capacity evaluation. Dr. McKeag responded to this letter 

by indicating that he did, in fact, “sign off” and agree with the 

recommendations of the functional capacity evaluation. Dr. 

McKeag specifically noted, “I do not personally do [functional 

capacity evaluations]. I do not consider myself to be an expert 

regarding [functional capacity evaluations]. I read the [functional capacity evaluation] and I basically agree with it, but I 

don’t know what that is worth.”

At trial, T.O. Haas objected on the basis of relevancy and 

foundation to page 17 of exhibit 23, where Dr. McKeag indicated his agreement with the recommendations of the functional capacity evaluation. The trial court overruled the objection, stating, “And there’s some doc[tors] that sign off on 

[functional capacity evaluations], even though the doc[tors] 

don’t do them. They — Overruled. This is — This sounds reasonable to me. [Doctors] can also receive [functional capacity 

evaluations] and make some contradictory statements or hedge 

their bets a little bit. Okay.” T.O. Haas did not object to page 

22 of exhibit 23, which consisted of Dr. McKeag’s further 

explanation of his agreement with the recommendations of the 

functional capacity evaluation.

On appeal, T.O. Haas argues that the trial court erred in 

overruling its objection to page 17 of exhibit 23. Specifically, 

T.O. Haas alleges that this page of the exhibit was not 
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admissible because Dr. McKeag admitted that he is not an 

expert regarding functional capacity evaluations, because Dr. 

McKeag did not indicate that his agreement with the recommendations in the functional capacity evaluation was made 

within a reasonable degree of medical probability, and because 

Dr. McKeag’s statement does not assist the trial court in any 

way. T.O. Haas’ assertions have no merit.

First, we note that at trial, T.O. Haas did not object to page 

22 of exhibit 23, which consisted of Dr. McKeag’s further 

explanation of his agreement with the recommendations of the 

functional capacity evaluation. This page of the exhibit reiterates that Dr. McKeag “sign[ed] off” on the recommendations 

of the functional capacity evaluation and that he had written, 

“I agree with the above recommendations.” As such, page 22 

contains the same information as page 17. And, page 22 was 

admitted into evidence without objection. Accordingly, even if 

the court erred in admitting page 17, such error would clearly 

be harmless as the same information was included in another, 

uncontested portion of the same exhibit.

Moreover, we cannot say that the trial court erred in admitting page 17 of exhibit 23 into evidence. Although Dr. McKeag 

indicated that he is not an expert with regard to functional 

capacity evaluations, presumably because he does not conduct 

this type of testing on his patients, he is clearly qualified to 

provide his opinion with regard to Contreras’ physical health 

and his ability to perform certain tasks. Dr. McKeag, who 

specializes in pain management, saw Contreras on at least 10 

occasions between October 2010 and October 2012. At each 

of these visits, Dr. McKeag evaluated Contreras’ level of back 

pain, and often, he would evaluate Contreras’ ability to perform 

certain movements in light of the pain.

Given Dr. McKeag’s knowledge of Contreras’ physical 

health, his general agreement with the results and recommendations of the functional capacity evaluation certainly provide 

relevant information to the trial court. Dr. McKeag was given 

two separate opportunities to contradict the results of the 

evaluation or, at the very least, to decline to agree with those 

recommendations. Dr. McKeag did not indicate any disagreement with the recommendations other than to note his lack of 
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expertise with functional capacity evaluations in general. Such 

information is associated with the weight of Dr. McKeag’s 

opinion, rather than with its admissibility.

[8] Finally, we note that although expert medical testimony 

in workers’ compensation cases must be based on a “reasonable degree of medical certainty” or “reasonable probability,” 

the testimony need not be couched in those exact, magic 

words. See Edmonds v. IBP, inc., 239 Neb. 899, 479 N.W.2d 

754 (1992). As such, Dr. McKeag’s medical opinion is admissible even though he did not explicitly state that it was based 

on a reasonable degree of medical certainty or reasonable 

probability. Dr. McKeag’s agreement with the recommendations of the functional capacity evaluation must be read in 

conjunction with his medical expertise and with his experience 

as Contreras’ physician. Although Dr. McKeag noted that he is 

not an expert in functional capacity evaluations, nowhere in his 

opinion does he provide any indication that his medical opinion was not based on a reasonable degree of medical certainty 

or reasonable probability.

T.O. Haas’ assertions regarding the admissibility of page 17 

of exhibit 23 are without merit. The exhibit, in its entirety, was 

properly admitted and considered by the trial court.

3. Finding of Permanent

and Total Disability

In the trial court’s order, it concluded that Contreras was 

permanently and totally disabled as a result of the injury he 

suffered while at work on August 23, 2010. In coming to this 

conclusion, the court found that the evidence presented at trial 

demonstrated that Contreras suffered a low-back injury which 

required surgery and which continues to cause him pain. The 

court went on to find that as a result of his injury, Contreras 

is limited in his ability to perform certain work functions, and 

that “[a]t best, [he] would be able to perform some light work 

jobs.” The court also found that there are no light work jobs 

available to Contreras due to the combination of his physical 

restrictions, his lack of education, and his felony conviction. 

The trial court awarded Contreras permanent total disability benefits.
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On appeal, T.O. Haas alleges that the trial court erred in 

two ways when it concluded that Contreras was permanently 

and totally disabled. First, T.O. Haas alleges that there was not 

competent medical evidence to demonstrate a causal connection between Contreras’ back condition after the March 2011 

surgery and the August 2010 injury or between his back condition and his physical restrictions as reported in the functional 

capacity evaluation. Second, T.O. Haas alleges that the only 

competent medical evidence presented regarding Contreras’ 

physical limitations after surgery demonstrated that Contreras 

was capable of working and had suffered a loss of earning 

capacity of 25 percent.

(a) Causal Connection Between 

Postsurgery Restrictions 

and Work Injury

[9,10] Under the Nebraska Workers’ Compensation Act, 

a claimant is entitled to an award for a work-related injury 

and disability if the claimant shows, by a preponderance of 

the evidence, that he or she sustained an injury and disability 

proximately caused by an accident which arose out of and in 

the course of the claimant’s employment. Schlup v. Auburn 

Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992). Moreover, 

to recover workers’ compensation benefits, an injured worker 

is required to prove by competent medical testimony a causal 

connection between the alleged injury, the employment, and 

the disability. Owen v. American Hydraulics, 254 Neb. 685, 

578 N.W.2d 57 (1998).

When testing the sufficiency of the evidence to support findings of facts made by the Workers’ Compensation Court, 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. 

Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 

354 (2007).

At trial, T.O. Haas stipulated that Contreras injured his 

back on August 23, 2010, while at work. It also stipulated 

that Contreras’ back injury required surgery in March 2011. 

As such, at trial and on appeal, T.O. Haas disputes only 
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the extent of Contreras’ condition after the back surgery. 

T.O. Haas challenges the extent of Contreras’ physical restrictions postsurgery and the resulting loss of earning capacity. To 

state T.O. Haas’ argument more simply, it asserts that there is 

no medical evidence which ties Contreras’ reports of ongoing 

back pain after surgery to the injury he suffered on August 23, 

2010, or to his physical restrictions as reported in the functional capacity evaluation.

When we consider the evidence presented at trial in the 

light most favorable to Contreras, we conclude there is sufficient evidence to demonstrate that Contreras’ condition after 

the March 2011 surgery was causally related to the injury he 

sustained on August 23, 2010, and that this condition caused 

physical restrictions, as reflected in the functional capacity evaluation.

On July 29, 2011, approximately 4 months after Contreras’ 

back surgery, Dr. Jimenez reported that Contreras was suffering from a right L5-S1 herniated disk and that Contreras’ 

“present back condition” was caused by the workplace accident that had occurred in August 2010. Dr. Jimenez also 

reported that Contreras had not yet reached maximum medical improvement for his injury. A few days after Dr. Jimenez 

reported these facts, he met with Contreras and recommended 

he “undergo a more aggressive approach” for his back condition. Dr. Jimenez recommended a spinal fusion surgery. This 

evidence demonstrates that in the months after the March 

2011 back surgery, Contreras continued to suffer from a serious back condition that was a direct result of his August 2010 

workplace injury.

In addition to the reports of Dr. Jimenez, the medical 

records of Dr. McKeag also indicate that after the back surgery, 

Contreras continued to suffer from severe back pain. Physical 

examinations of Contreras revealed some indication that his 

back condition and resulting back pain affected his ability to 

perform certain movements. And, at trial, Contreras testified 

that the March 2011 back surgery did not resolve his back pain. 

Contreras stated that after the surgery, he felt relief for only a 

“brief time.” Contreras also testified that he has been on some 
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type of pain medication continuously since the August 2010 

accident and that even with this medication, he continues to 

feel pain.

All of this evidence, taken together, is sufficient to support the trial court’s finding that there was a causal connection between Contreras’ condition after the back surgery and 

his August 2010 workplace accident. In its brief on appeal, 

T.O. Haas points to evidence in the record which demonstrates that Contreras’ postsurgery condition was not a result 

of his workplace accident and that, in fact, Contreras was 

exaggerating his continuing pain and inability to perform 

certain movements. Essentially, T.O. Haas’ argument is about 

the credibility of the various doctors who examined and 

treated Contreras.

[11,12] We recognize that the trial court was faced with 

conflicting opinions regarding Contreras’ postsurgery condition 

and the cause of that condition. However, we also recognize 

that the Workers’ Compensation Court is entitled to accept the 

opinion of one expert over another. See Zessin v. Shanahan 

Mechanical & Elec., 251 Neb. 651, 558 N.W.2d 564 (1997). 

As the trier of fact, the Workers’ Compensation Court is the 

sole judge of the credibility of the witnesses and the weight 

to be given their testimony. Id. When the record in a workers’ 

compensation case presents conflicting medical testimony, an 

appellate court will not substitute its judgment for that of the 

compensation court. Lowe v. Drivers Mgmt., Inc., 274 Neb. 

732, 743 N.W.2d 82 (2007).

The trial court accepted the opinion of Dr. Jimenez and 

relied on the medical records authored by Dr. McKeag when 

it found that Contreras “has had a low back injury which 

required surgery and continues to have pain. [He] is limited 

on his ability to perform work functions.” Upon our review of 

the record, we conclude that there was sufficient evidence to 

support the trial court’s findings that Contreras’ condition after 

the March 2011 surgery was causally related to the injury he 

sustained on August 23, 2010, and that this condition caused 

physical restrictions, as reflected in the functional capacity evaluation.
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290 22 NEBRASKA APPELLATE REPORTS

(b) Ability to Work

T.O. Haas also asserts that the trial court erred in awarding 

permanent total disability, because such a finding is only warranted when the injured party is unable to perform any work 

which he has experience or capacity to perform, “or any other 

kind of work which a person of his mentality an[d] attainments could do.” Brief for appellant at 27-28 (citing Kleiva v. 

Paradise Landscapes, 230 Neb. 234, 430 N.W.2d 550 (1988)). 

T.O. Haas claims that the only competent evidence regarding 

Contreras’ loss of earning capacity shows that Contreras is 

capable of working at a medium level of work, and this results 

in a loss of earning capacity of 20 to 25 percent, not total disability. However, this argument is contradicted by other evidence in the record. For example, the functional capacity evaluation conducted by Sexson reveals that Contreras struggled 

to perform many movements and had limited strength. Sexson 

concluded that Contreras was

unable to function completely within the lightest Physical 

Demand Category, as defined by the U.S. Dept. of Labor, 

of occasional lifting 10 lbs., frequent lifting 5 lbs., and 

constant lifting <5 lbs. He demonstrated deficiencies 

from normal values in all tested strength and mobility 

of upper and lower extremities, and trunk. These impairments severely limited his ability to perform material and 

non-material handling tasks. He was unable to complete a 

majority of presented tasks due to lower back pain, limiting his trunk and extremity mobility. All material and 

non-material handling testing elicited pain at the mid to 

lower back.

After the completion of the functional capacity evaluation, Sexson opined that the evaluation accurately portrayed 

Contreras’ abilities and that Contreras had performed the tests 

with full participation. In addition, Dr. McKeag indicated 

his agreement with the restrictions and recommendations of 

the evaluation.

This evidence demonstrates that even after Contreras’ 

March 2010 surgery, he had considerable physical restrictions 

as a result of the August 2010 workplace accident. T.O. Haas, 

however, asserts that this evidence does not prove anything 
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about Contreras’ physical restrictions, because the functional 

capacity evaluation was invalid as a result of Contreras’ exaggeration of symptoms and because Dr. McKeag’s agreement 

with the evaluation should not be considered.

In making its arguments, T.O. Haas reiterates its previous assertions about why this evidence should have been 

excluded altogether at trial. In our analysis above, we rejected 

T.O. Haas’ arguments and found that both the results of the 

functional capacity evaluation and Dr. McKeag’s agreement 

with those results were properly admitted and considered by 

the trial court. As such, T.O. Haas’ arguments about the validity of this evidence are without merit.

T.O. Haas also asserts that other medical evidence presented 

at trial contradicted the findings of the functional capacity 

evaluation and demonstrated that Contreras was, in fact, exaggerating his symptoms. However, as we stated above, as the 

trier of fact, the Nebraska Workers’ Compensation Court is the 

sole judge of the credibility of the witnesses and the weight 

to be given their testimony, and when the record in a workers’ 

compensation case presents conflicting medical testimony, an 

appellate court will not substitute its judgment for that of the 

compensation court. See Lowe v. Drivers Mgmt., Inc., 274 Neb. 

732, 743 N.W.2d 82 (2007); Zessin v. Shanahan Mechanical & 

Elec., 251 Neb. 651, 558 N.W.2d 564 (1997).

Based upon the conflicting evidence in the record, the trial 

court noted in its award: “[Contreras] may not be as limited 

as set forth in the functional capacity evaluation but may also 

be limited more than Dr. Gammel finds. At best, [Contreras] 

would be able to perform some light work jobs.” The court 

went on to conclude that there are no light work jobs available 

to Contreras, due to the combination of his physical restrictions, his lack of education, and his felony conviction. The trial 

court awarded Contreras permanent total disability benefits. 

Although the trial court does not specifically refer to the oddlot doctrine, the rationale provided by the trial court is consistent with that doctrine.

Under the odd-lot doctrine, “‘“[t]otal disability may 

be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that 
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292 22 NEBRASKA APPELLATE REPORTS

they will not be employed regularly in any well-known 

branch of the labor market. The essence of the test is 

the probable dependability with which claimant can sell 

his services in a competitive labor market, undistorted 

by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the 

superhuman efforts of the claimant to rise above his crippling handicaps.”’”

Lovelace v. City of Lincoln, 283 Neb. 12, 14, 809 N.W.2d 505, 

507-08 (2012).

Whether Contreras is totally or permanently disabled is a 

question of fact, and when testing the trial judge’s findings 

of fact, we consider the evidence in the light most favorable 

to the successful party. Although the trial court’s consideration of Contreras’ felony conviction (along with his physical 

impairments and lack of education) is not a consideration 

found under this state’s appellate authority currently, we 

find it unnecessary to determine whether such a consideration results in error, because (1) no assignment of error 

or argument was made on this basis and (2) we find there 

is sufficient evidence in the record to support the Workers’ 

Compensation Court’s decision that the employee is totally 

and permanently disabled based on its determination of the 

employee’s physical limitiations combined with the evidence 

as to his limited educational background. The combination of 

those factors alone has been upheld by the Nebraska Supreme 

Court as a basis for total disability. See Money v. Tyrrell 

Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008) (evidence of 

employee’s significant physical impairments after injury and 

her limited cognitive abilities was sufficient to support trial 

judge’s finding of permanent and total disability). We find 

that to be the case here and affirm the trial court’s award of 

permanent total disability.

VI. CONCLUSION

We find no merit to T.O. Haas’ assignments of error. The 

trial court properly admitted into evidence and considered 

exhibits 22 and 23. In addition, there was sufficient evidence to support the trial court’s conclusion that Contreras is 
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Cite as 22 Neb. App. 276

permanently and totally disabled. Accordingly, we affirm the 

trial court’s order in its entirety.

Affirmed.

Inbody, Chief Judge, participating on briefs.