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308 Nebraska Reports

ROGERS v. JACK’S SUPPER CLUB

Cite as 308 Neb. 107

Sheryl A. Rogers, appellee, v. Jack’s Supper 

Club and Continental Western 

Group, appellants.

___ N.W.2d ___

Filed January 8, 2021. No. S-20-170.

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

award of the compensation court may be modified, reversed, or set aside 

only upon the grounds that (1) the compensation court acted without or 

in excess of its 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. ____: ____. An appellate court is obligated in workers’ compensation 

cases to make its own determinations as to questions of law.

3. Courts: Appeal and Error. After receiving a mandate, a trial court is 

without power to affect rights and duties outside the scope of the remand 

from an appellate court.

4. Judgments: Appeal and Error. When an appellate court remands a 

cause with directions, the judgment of the appellate court is a final judgment in the cause.

5. Courts: Appeal and Error. When a lower court is given specific 

instructions on remand, it must comply with the specific instructions and 

has no discretion to deviate from the mandate.

6. Workers’ Compensation. Neb. Rev. Stat. § 48-120(6) (Cum. Supp. 

2018) establishes that an employer may contest any future claims for 

medical treatment on the basis that such treatment is unrelated to the 

original work-related injury or occupational disease, or that the treatment is unnecessary or inapplicable.

Appeal from the Workers’ Compensation Court: J. Michael 

Fitzgerald, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/15/2021 08:07 AM CST
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ROGERS v. JACK’S SUPPER CLUB

Cite as 308 Neb. 107

Jenna M. Christensen and Caroline M. Westerhold, of Baylor 

Evnen, L.L.P., for appellants.

Trevor J. Matulka and Todd R. McWha, of Waite & McWha 

Law Firm, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Funke, and 

Papik, JJ.

Cassel, J.

INTRODUCTION

An employer and its insurer appeal a Nebraska Workers’ 

Compensation Court’s order on remand, which appointed the 

employee’s “Form 50” physician and clarified that it was not 

ordering a review of the employee’s treatment regimen. The 

employer and its insurer attack the order as deficient under 

Workers’ Comp. Ct. R. of Proc. 11(A) (2011) in that it made no 

determination whether the employee’s future medical treatment 

will be reasonable or necessary. Because the order complied 

with our mandate and fully resolved the controversy presented 

by the employee’s motion to compel, we decline to provide a 

ruling in anticipation of a future controversy beyond the scope 

of our mandate. We affirm the court’s order.

BACKGROUND

This is the second appearance of the parties before this 

court. We first summarize the prior appeal and then set forth 

the additional background leading to the instant appeal.

First Appeal

In our previous opinion, 1 we described the factual background in more detail. For purposes of this appeal, our opinion 

is summarized as follows.

Continental Western Group is the workers’ compensation 

carrier for Jack’s Supper Club, which employed Sheryl A. 

1 Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d 754 (2019).
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ROGERS v. JACK’S SUPPER CLUB

Cite as 308 Neb. 107

Rogers. We hereinafter refer to the employer and its insurer 

collectively as “JSC.”

In 2001, Rogers injured her back in the course and scope 

of her employment. As part of a settlement between Rogers 

and JSC, she completed a Form 50. The Form 50 anticipated 

that JSC would pay for treatment of Rogers’ work-related 

injuries by her Form 50 physician, who could only be changed 

through an agreement of Rogers and JSC or by order of the 

Nebraska Workers’ Compensation Court. Because Rogers lived 

in Nebraska at the time, Rogers chose a Nebraska doctor to 

serve as her Form 50 physician.

In 2010, Rogers moved to Florida and informed JSC that 

she had chosen a Florida doctor, Dr. Jonathan Daitch, as her 

new Form 50 physician. JSC responded that Rogers could 

not unilaterally change her Form 50 physician. After discussions between Rogers and JSC broke down and JSC stopped 

paying for Rogers’ treatment, Rogers filed a motion to compel, demanding that JSC cover Rogers’ medical treatment by 

Dr. Daitch.

JSC argued that Rogers did not have the unilateral power 

to change her Form 50 physician pursuant to a statute 2 governing selection of Form 50 physicians. Furthermore, JSC 

challenged the necessity and reasonableness of Rogers’ opioid 

treatment, offering medical reports setting forth opinions 

regarding Rogers’ injury and treatment. The reports expressed 

concerns about possible adverse effects from Rogers’ medication regimen and recommended weaning her from opioids. The 

compensation court expressed a similar concern at a hearing 

as well.

The compensation court issued a written order, concluding 

that because Rogers had moved to Florida and could not be 

expected to continue to be treated by a Nebraska doctor, the 

statute did not apply. The compensation court ordered JSC 

2 Neb. Rev. Stat. § 48-120(2) (Cum. Supp. 2018).
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ROGERS v. JACK’S SUPPER CLUB

Cite as 308 Neb. 107

to pay Rogers’ medical bills and stated that Dr. Daitch was 

allowed to continue to treat Rogers. JSC appealed.

This court reversed the compensation court’s order and 

remanded the cause with instructions. We ruled that JSC was 

not required to pay for Rogers’ Florida medical treatment, 

because Rogers had not followed the statutory procedures to 

change her Form 50 physician. 3 We characterized the services 

furnished by providers in Florida as “‘medical services furnished or ordered by [a] physician or other person selected by 

the employee in disregard of [§ 48-120].’” 4 Furthermore, we 

determined that the compensation court’s order was insufficient 

under rule 11(A). We explained:

We cannot determine what the compensation court 

meant by ordering that Rogers is allowed to continue 

treatment with Dr. Daitch’s office. It is not clear if the 

compensation court intended to make Dr. Daitch Rogers’ 

Form 50 Physician going forward or if it made the necessary findings to do so. We have previously alluded to 

the compensation court’s authority to order a change of 

the Form 50 Physician, but it can do so when it “deems 

such change is desirable or necessary.” . . . We read the 

compensation court’s order, however, to equivocate about 

whether it is “desirable or necessary” for Rogers to continue to be treated by Dr. Daitch. While the order stated 

that Rogers could continue to receive treatment from Dr. 

Daitch, it expressed concern about the opioids he continues to prescribe for Rogers.

In addition, the compensation court appeared to believe 

that some type of review of the opioid regimen prescribed 

by Dr. Daitch was necessary. We do not understand 

from its order, however, whether the court was ordering 

3 See § 48-120(2).

4 Rogers, supra note 1, 304 Neb. at 615, 935 N.W.2d at 762 (quoting 

§ 48-120(2)(f )).
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such a review or what effect the results of that review 

might have on whether the compensation court believes it 

is necessary or desirable for Rogers to have Dr. Daitch as 

her Form 50 Physician. 5

Because it was not possible to determine whether the compensation court made the findings necessary to support the relief 

awarded, we remanded the cause and instructed:

Upon remand, the compensation court shall enter an order 

regarding Rogers’ right to reimbursement for ongoing 

medical treatment that complies with rule 11. Such order 

shall address whether it is changing Rogers’ Form 50 

Physician under § 48-120(6) and clarify the ambiguity 

about any review of Rogers’ treatment regimen that is to 

take place. 6

Instant Appeal

On remand, it does not appear that the compensation court 

held a hearing or that it sought or received any new evidence. 

The only bill of exceptions presented in the instant appeal is 

the same one that was filed in the first appeal.

In the compensation court’s order on remand, it appointed 

Dr. Daitch as Rogers’ Form 50 physician and found:

[I]t is desirable or necessary, or both, to allow [Rogers] 

to change physicians because she now lives in Florida. 

Dr. . . . Daitch is appoint[ed] the [r]ule 50 physician. Dr. 

Daitch is appointed because he has treated [Rogers] for 

a number of years, and it is [Rogers’] desire to remain 

under his care and treatment.

The compensation court clarified:

[JSC] had Nebraska physicians write reports as the [c]ourt 

noted in its Order of September 26, 2018. The discussion in that Order was meant to provide the parties with 

5 Id. at 617, 935 N.W.2d at 763.

6 Id. at 618, 935 N.W.2d at 764.
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ROGERS v. JACK’S SUPPER CLUB

Cite as 308 Neb. 107

advice to submit to Dr. Daitch the reports of physicians 

who believe there should be an adjustment in care. Far 

too often, there is a breakdown in communication, and 

one physician (especially a physician in Florida) does not 

know what the other physicians are thinking. The only 

purpose of the comments was to advise the parties and/or 

[JSC] to submit to Dr. Daitch the reports and recommendations of the other physicians. It is up to Dr. Daitch 

to decide the appropriate method of care and treatment 

for [Rogers].

JSC filed a timely appeal, which we moved to our docket. 7

ASSIGNMENTS OF ERROR

JSC assigns, reordered, that the compensation court (1) violated rule 11(A) in its order on remand and (2) erred as a matter of law and fact in failing to determine whether Dr. Daitch’s 

treatment was reasonable and necessary to treat Rogers’ workrelated injuries.

STANDARD OF REVIEW

[1,2] A judgment, order, or award of the compensation court 

may be modified, reversed, or set aside only upon the grounds 

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

its 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. 8 An appellate court is obligated in 

workers’ compensation cases to make its own determinations 

as to questions of law. 9

7 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

8 Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).

9 Frans v. Waldinger Corp., 306 Neb. 574, 946 N.W.2d 666 (2020).
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Cite as 308 Neb. 107

[3] After receiving a mandate, a trial court is without power 

to affect rights and duties outside the scope of the remand from 

an appellate court. 10

ANALYSIS

Rule 11

JSC first challenges the compensation court’s order on 

remand, arguing that it fails to satisfy a compensation court 

rule requiring a reasoned decision. We disagree.

Rule 11(A) states: “Decisions of the court shall provide the 

basis for a meaningful appellate review. The judge shall specify the evidence upon which the judge relies.” JSC argues that 

“comparing the [order reversed in the first appeal] and the . . . 

[o]rder on [r]emand, the findings . . . as to the necessity and 

reasonableness of . . . medical treatment remain contradictory 

and unclear.” 11

At this point, we observe that JSC does not assign error 

or make any argument attacking the portion of the order on 

remand appointing Dr. Daitch as Rogers’ Form 50 physician. 

On remand, the court made an express finding that it was 

“desirable or necessary, or both” for Dr. Daitch to be Rogers’ 

new Form 50 physician. The court also cited the specific evidence upon which it relied to justify that relief: Rogers now 

lives in Florida and cannot be treated by Nebraska doctors, Dr. 

Daitch has treated Rogers for many years, and Rogers desires 

to stay under his care.

Rather, JSC addresses only the portion of the order on remand 

resolving the ambiguity we noted in our first opinion. In that 

portion, the compensation court clarified that it was not ordering a review of Dr. Daitch’s treatment, but instead was simply 

fostering discussion between JSC’s experts and Dr. Daitch, 

10 TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 

145 (2020).

11 Brief for appellants at 14.
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because ultimately “[i]t is up to Dr. Daitch to decide the appropriate method of care and treatment for [Rogers].”

Contrary to JSC’s argument, we do not read or understand 

this language as a delegation of the court’s responsibility to 

resolve a “dispute regarding medical . . . services . . . to be 

furnished” or the court’s “authority to determine the necessity, character, and sufficiency of any medical services . . . to 

be furnished.” 12 Rather, it was simply a recognition that Dr. 

Daitch was not Rogers’ Form 50 physician previously and that 

all of the evidence relating to his treatment regimen was developed prior to his designation as such. There is literally no evidence that in his capacity as the Form 50 physician, Dr. Daitch 

had prescribed any course of treatment; thus, JSC effectively 

relies on pure speculation.

[4] More fundamentally, JSC’s argument regarding rule 

11(A) relies upon a flawed premise. When an appellate court 

remands a cause with directions, the judgment of the appellate court is a final judgment in the cause. 13 The portion of 

the first order, upon which JSC relies for comparison, has no 

force or effect after our reversal of it. The order on remand 

stands upon its own merits. JSC’s argument that the order on 

remand violated rule 11(A) lacks merit. We therefore turn to 

its substantive argument regarding the content of the order 

on remand.

Treatment Determination

[5] Contrary to JSC’s substantive argument, the compensation court was not “specifically directed to make a determination as to whether the opioid treatment was reasonable and 

necessary medical care.” 14 We have consistently held that 

when a lower court is given specific instructions on remand, it 

12 § 48-120(6).

13 See Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997).

14 Brief for appellants at 12.
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must comply with the specific instructions and has no discretion to deviate from the mandate. 15 We have already recited 

the directions of our remand. In compliance with them, the 

compensation court “chang[ed] Rogers’ Form 50 physician” 

and “clarif[ied] the ambiguity about any review of Rogers’ 

treatment regimen.” 16 The compensation court obeyed our 

instructions and did not deviate from our mandate.

[6] More broadly, JSC argues that the compensation court 

should have determined whether Dr. Daitch’s treatment of 

Rogers was reasonable or necessary. Section 48-120(6) establishes that an employer may contest any future claims for 

medical treatment on the basis that such treatment is unrelated 

to the original work-related injury or occupational disease, or 

that the treatment is unnecessary or inapplicable. 17 But, in this 

regard, JSC is anticipating a future controversy rather than 

seeking to resolve an existing dispute.

Our decision in the first appeal reversed the compensation 

court’s original order. Because Dr. Daitch was not Rogers’ 

Form 50 physician, her motion to compel failed. This litigation 

has settled that prior to the Form 50 physician designation, JSC 

is not required to pay for the treatment that was disputed in the 

motion to compel.

At oral argument, in response to a question whether “going 

forward if Dr. Daitch prescribes those opioids or prescribes 

any course of treatment, that [JSC] would have the ability to 

challenge that as not something they are required to reimburse 

because it is not reasonable and necessary,” Rogers conceded 

that “[i]f they want to [do so, it would be] challengeable.” In 

other words, after this appeal, if Dr. Daitch’s treatment regimen as the Form 50 physician is disputed, JSC may challenge 

it in a subsequent proceeding. However, this court will not 

15 TransCanada Keystone Pipeline, supra note 10.

16 Rogers, supra note 1, 304 Neb. at 618, 935 N.W.2d at 764.

17 See Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).
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instruct the compensation court to indulge in speculation in 

anticipation of a future controversy.

CONCLUSION

The compensation court did not err in its order on remand. It 

sufficiently resolved the ambiguity inherent in its original order 

and provided a basis for meaningful appellate review. Thus, the 

compensation court complied with this court’s specific instructions. Whether a controversy exists after the appointment of 

Dr. Daitch as Rogers’ Form 50 physician is pure speculation. If 

such a dispute is determined to exist, the procedures authorized 

in § 48-120 provide the authority to resolve it. We affirm the 

compensation court’s order on remand.

Affirmed.

Freudenberg, J., participating on briefs.

Stacy, J., not participating.