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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

ROGERS v. JACK’S SUPPER CLUB

Cite as 304 Neb. 605

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

Supper Club and Continental 

Western Group, appellants.

___ N.W.2d ___

Filed December 6, 2019. No. S-18-1018.

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 judgment, order, 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. ____: ____. Findings of fact made by the Workers’ Compensation Court 

after review have the same force and effect as a jury verdict and will not 

be set aside unless clearly erroneous.

4. Workers’ Compensation: Witnesses: Testimony. 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.

5. Statutes: Intent. When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood 

in context.

6. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

7. Statutes. It is not within the province of the courts to read meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

8. Statutes: Legislature: Intent. When words of a particular clause, taken 

literally, would plainly contradict other clauses of the same statute, or 

Nebraska Supreme Court Online Library

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

12/13/2019 12:06 AM CST
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Cite as 304 Neb. 605

lead to some manifest absurdity or to some consequences which a court 

sees plainly could not have been intended, or to result manifestly against 

the general term, scope, and purpose of the law, then the court may 

apply the rules of construction to ascertain the meaning and intent of the 

lawgiver, and bring the whole statute into harmony if possible.

9. Statutes: Legislature: Public Policy. It is the function of the Legislature, 

through the enactment of statutes, to declare what is the law and public 

policy of this state.

10. Workers’ Compensation: Liability. Voluntary payments of workers’ 

compensation benefits do not constitute an admission of liability by 

an employer.

Appeal from the Workers’ Compensation Court: J. Michael 

Fitzgerald, Judge. Reversed and remanded with directions.

Caroline M. Westerhold and Eric J. Sutton, of Baylor Evnen, 

L.L.P., for appellants.

Margaret R. Jackson, Todd R. McWha, and Tyler Volkmer, 

of Waite, McWha & Heng, for appellee.

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

and Freudenberg, JJ.

Papik, J.

The Workers’ Compensation Court ordered Jack’s Supper 

Club and Continental Western Group, its workers’ compensation carrier (collectively JSC), to reimburse Sheryl A. Rogers 

for various medical expenses she incurred. In the same decision, the compensation court stated that Rogers could continue 

to receive treatment from certain providers. We agree with 

JSC, however, that it is not responsible to reimburse Rogers, 

because she selected the physicians who provided the treatment 

at issue in disregard of provisions of the Nebraska Workers’ 

Compensation Act. We also agree with JSC that the compensation court failed to adequately explain the basis for its order 

that Rogers could continue to receive treatment from the specified providers. We thus reverse the order and remand the cause 

with directions.
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

ROGERS v. JACK’S SUPPER CLUB

Cite as 304 Neb. 605

BACKGROUND

Injury, Selection of Physician 

in Form 50, and Settlement.

Rogers injured her back while working for Jack’s Supper 

Club in 2001. Shortly after the injury, she filled out a form 

indicating that she was choosing a “Dr. Beyers” at the Dundy 

County Hospital in Benkelman, Nebraska, to treat her for her 

work-related injury. The parties appear to agree that the form 

was a “Form 50” promulgated by the Workers’ Compensation 

Court.

Rogers later filed a petition in the compensation court 

against JSC. After some litigation regarding Rogers’ claim, the 

compensation court approved a lump-sum settlement in 2010. 

The settlement resolved JSC’s liability for indemnity benefits. 

JSC remained responsible to pay Rogers for reasonable and 

necessary medical care for her work-related injury.

Dispute Regarding Reimbursement 

for Medical Expenses.

At some point not clear from our record, Dr. Beyers, the 

physician that Rogers selected in the Form 50, died. Rogers 

then received treatment from Dr. Lori Stonehocker, one of 

Dr. Beyers’ colleagues. JSC apparently reimbursed Rogers for 

treatment provided by Dr. Stonehocker.

In 2010, Rogers moved to Florida and the parties’ counsel 

engaged in a series of communications regarding Rogers’ treating physician. JSC initially expressed concern about Rogers’ 

receiving treatment from a provider in Nebraska while living 

in Florida. It proposed that the parties agree to a pain management specialist in Florida. Rogers’ counsel responded that she 

would not agree with JSC to a pain management specialist. 

Rogers’ counsel later informed JSC’s counsel that Rogers had 

selected Dr. Jonathan Daitch, a pain management specialist 

in Florida. After Rogers’ counsel informed JSC’s counsel that 

there was no Form 50 and that Rogers was free to select her 

own doctor, JSC’s counsel responded that there was a Form 50 
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Cite as 304 Neb. 605

and that as a result, it was not clear what basis existed for 

Rogers to unilaterally choose her own doctor.

Rogers later filed a motion in which she alleged that JSC 

was refusing to reimburse her for treatment provided by Dr. 

Daitch. She asked that the compensation court order JSC to 

reimburse her for such treatment.

Hearing on Motion to Compel Payment 

for Medical Expenses.

At the hearing on Rogers’ motion, she testified that she had 

received treatment from both Dr. Daitch and Dr. Mark Means, 

a chiropractor in Florida. No evidence was presented that JSC 

agreed that Rogers could receive treatment from Dr. Daitch 

or Dr. Means. Rogers testified that while she discussed seeing Dr. Daitch with Dr. Stonehocker, Dr. Stonehocker did not 

refer her to Dr. Daitch. Rogers offered into evidence a number 

of medical bills for treatment provided by Drs. Daitch and 

Means. The majority of the treatment provided by Dr. Daitch 

was pharmacological, and Rogers offered Dr. Daitch’s opinion that due to the work-related injury, Rogers would require 

a lifelong medication regimen of fentanyl, Norco, Lyrica, 

and Valium.

JSC offered the Form 50 and the communications between 

its counsel and Rogers’ counsel regarding the selection of a 

pain management specialist in Florida. JSC also offered medical reports setting forth opinions regarding Rogers’ injury and 

treatment. In one such report, Dr. John Massey stated that 

Rogers’ complaints were “disproportionate with what would 

be expected from the back injury which was sustained and the 

surgical intervention that was undertaken.” He expressed concern about possible adverse effects from Rogers’ medication 

regimen and recommended weaning her from oral opiates. In a 

subsequent report, Dr. Massey expressed concern that Rogers 

was taking fentanyl, Norco, Lyrica, Valium, and Flexeril. He 

stated that patients often believe that such a combination of 

opioids, benzodiazepines, and muscle relaxants is more beneficial than it is. JSC also offered a report of Dr. Phillip Essay, 
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ROGERS v. JACK’S SUPPER CLUB

Cite as 304 Neb. 605

who reviewed Rogers’ records and examined her. He stated that 

Rogers’ complaints of pain were disproportionate with what 

would be expected and that there “is no evidence to support 

the long-term use of opioids for [Rogers’] condition related to 

the work injury.” Dr. Essay also recommended weaning Rogers 

from the opioid portion of the medication regimen.

Compensation Court Order 

on Motion to Compel.

Following the hearing, the compensation court issued a written order. It rejected JSC’s argument that it was not responsible 

for the medical expenses because Rogers failed to comply 

with Neb. Rev. Stat. § 48-120(2) (Cum. Supp. 2018), a statute 

governing selection of treating physicians. It concluded that 

the provisions of § 48-120(2) should not apply under the circumstances because Rogers had moved to Florida and could 

not be expected to obtain a referral from her Nebraska doctor 

for a physician in Florida. It also stated that the alleged failure 

to obtain a referral from a physician is an affirmative defense 

which JSC failed to plead.

The compensation court went on to summarize the medical opinions of Drs. Daitch, Massey, and Essay. It concluded 

that the treatment provided by Dr. Daitch was reasonable and 

related to Rogers’ injury at work. The compensation court 

ordered JSC to pay certain bills offered by Rogers. It also 

stated that Rogers was allowed to continue treatment with Dr. 

Daitch’s office.

JSC filed a timely appeal of this decision.

ASSIGNMENTS OF ERROR

JSC assigns, summarized, that the compensation court erred 

in three respects: (1) by rejecting JSC’s argument that it was 

not responsible to reimburse Rogers for medical bills she 

incurred from providers in Florida, (2) by finding that the 

medical treatment provided to Rogers in Florida was reasonable and necessary, and (3) by failing to provide a basis for 

meaningful appellate review.
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304 Nebraska Reports

ROGERS v. JACK’S SUPPER CLUB

Cite as 304 Neb. 605

STANDARD OF REVIEW

[1] 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 judgment, order, or 

award; or (4) the findings of fact by the compensation court 

do not support the order or award. Martinez v. CMR Constr. & 

Roofing of Texas, 302 Neb. 618, 924 N.W.2d 326 (2019).

[2,3] An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of 

law. Id. Findings of fact made by the Workers’ Compensation 

Court after review have the same force and effect as a jury 

verdict and will not be set aside unless clearly erroneous. Id.

[4] 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.

ANALYSIS

Compliance With § 48-120(2) 

and Rule 50.

We begin our analysis with JSC’s argument that the compensation court erred by ordering it to pay for medical bills 

Rogers incurred from providers in Florida. JSC argues that 

Rogers incurred these charges in violation of § 48-120(2)(a) 

and Workers’ Comp. Ct. R. of Proc. 50 (2018) and that therefore, it is not responsible to reimburse Rogers. Rogers’ injury 

occurred in 2001. In the intervening years, the relevant statutory provisions and rules have remained the same or substantially similar. Therefore, we will refer to the current versions of 

the applicable statutes and rules. See Allen v. Immanuel Med. 

Ctr., 278 Neb. 41, 767 N.W.2d 502 (2009).

Section 48-120 contains rules that govern from whom an 

injured employee may obtain medical treatment for a compensable injury. Those rules allow an employee, in some 
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Cite as 304 Neb. 605

circumstances, to select a physician to provide such treatment. There is no dispute that Rogers made such a selection 

by designating Dr. Beyers on the Form 50. Both parties refer 

to a physician selected by the employee under § 48-120(2)(a) 

as a “Form 50 Physician,” a term we will use in our analysis 

as well.

JSC’s argument relies on the following portions of § 48-120:

(2)(a) The employee has the right to select a physician who [meets particular criteria]. . . . If selection 

of the initial physician is made by the employee or 

employer pursuant to this subsection following notice by 

the employer pursuant to this subsection, the employee 

or employer shall not change the initial selection of 

physician made pursuant to this subsection unless such 

change is agreed to by the employee and employer or is 

ordered by the compensation court pursuant to subsection (6) of this section. . . .

. . . .

(e) The physician selected may arrange for any consultation, referral, or extraordinary or other specialized 

medical services as the nature of the injury requires.

(f) The employer is not responsible for medical services furnished or ordered by any physician or other person 

selected by the employee in disregard of this section. . . .

. . . .

(6) The compensation court shall have the authority to 

determine the necessity, character, and sufficiency of any 

medical services furnished or to be furnished and shall 

have authority to order a change of physician, hospital, 

rehabilitation facility, or other medical services when it 

deems such change is desirable or necessary.

JSC also invokes rule 50 of the Workers’ Compensation 

Court rules of procedure. Portions of rule 50 address the same 

subject, providing as follows:

A. . . .

. . . .
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4. The employee may not change the primary treating 

physician chosen . . . unless the employer agrees or the 

compensation court orders the change. . . .

. . . .

C. . . . [T]here can be no change in the primary treating 

physician unless the employee and the employer agree or 

the compensation court orders a change.

D. The primary treating physician may arrange for specialized medical services the employee needs. A referral 

by the primary treating physician is not a change.

(Emphasis omitted.)

Rule 50 appears to impose the same requirements as the 

provisions of § 48-120(2) quoted above. We thus limit our 

analysis to interpreting § 48-120(2). We will do so by applying 

our familiar rules of statutory interpretation, which we briefly 

recount below.

[5-7] When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, 

understood in context. State v. Garcia, 301 Neb. 912, 920 

N.W.2d 708 (2018). Statutory language is to be given its 

plain and ordinary meaning, and an appellate court will not 

resort to interpretation to ascertain the meaning of statutory 

words which are plain, direct, and unambiguous. State v. Wal, 

302 Neb. 308, 923 N.W.2d 367 (2019). It is not within the 

province of the courts to read meaning into a statute that is 

not there or to read anything direct and plain out of a statute. 

Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 

723 (2016).

The plain language of § 48-120(2) supports JSC’s position 

that it is not responsible to pay for medical treatment unless 

it was provided by the Form 50 Physician or by a provider 

to whom the patient was referred by the Form 50 Physician. 

Section 48-120(2)(a) permits the employee to select a physician, and § 48-120(2)(e) allows the selected physician to make 

referrals to other providers. Section 48-120(2)(a) also allows 

the Form 50 Physician to be changed, but only if “agreed to 
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Cite as 304 Neb. 605

by the employee and employer” or if “ordered by the compensation court pursuant to [§ 48-120(6)].” And an employee 

may unilaterally select a new physician if the employer denies 

compensability for treatment provided by physicians within 

the rule 50(A)(4) chain of referrals. See Clark v. Alegent 

Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013). Section 

48-120(2)(f), however, provides that “[t]he employer is not 

responsible for medical services furnished or ordered by any 

physician or other person selected by the employee in disregard of this section.”

Rogers does not even attempt to argue that the plain language of § 48-120(2)(a) entitles her to reimbursement for treatment from a provider that was not her Form 50 Physician or 

a person to whom she was referred by her Form 50 Physician. 

Instead, she argues that we should not follow the plain language in this case. Alternatively, she contends that JSC cannot 

rely on § 48-120(2) because of certain actions and omissions 

on its part. We discuss each of these arguments below.

[8] Rogers primarily argues that the plain language of 

§ 48-120(2) should not be followed because it would lead 

to an absurd result in this case. She argues we may deviate 

from the plain language of the statute and specifically points 

us to language in Anthony, Inc. v. City of Omaha, 283 Neb. 

868, 887-88, 813 N.W.2d 467, 482 (2012), where we said the 

following:

When words of a particular clause, taken literally, would 

plainly contradict other clauses of the same statute, or 

lead to some manifest absurdity or to some consequences 

which we see plainly could not have been intended, or to 

result manifestly against the general term, scope, and purpose of the law, then we may apply the rules of construction to ascertain the meaning and intent of the lawgiver, 

and bring the whole statute into harmony if possible.

We disagree with Rogers that application of the plain language of § 48-120(2)(a) in these circumstances would lead to 

“manifest absurdity.” Rogers argues that in circumstances in 
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Cite as 304 Neb. 605

which a Form 50 Physician dies or the employee moves out 

of state, the employee can no longer be treated by or receive 

referrals from the Form 50 Physician and thus should be able 

to unilaterally choose a new physician. The language of the 

statute, however, does not leave employees in such situations 

without remedies. A new Form 50 Physician can be selected 

either with agreement of the employer or by bringing the matter to the attention of the compensation court and asking it to 

approve a new Form 50 Physician. We cannot say that it would 

be manifestly absurd for the Legislature to require persons 

whose Form 50 Physician is no longer able to provide treatment or make referrals to obtain a new Form 50 Physician 

through the procedures explicitly set out in the statute.

[9] Rogers is essentially making a policy argument that 

persons in her position should not be limited to seeking agreement with the employer or asking the compensation court to 

appoint a new Form 50 Physician. But we are not tasked with 

selecting what we believe is the best policy. It is the function 

of the Legislature, through the enactment of statutes, to declare 

what is the law and public policy of this state. Mays v. Midnite 

Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

Neither are we persuaded by Rogers’ alternative arguments 

that even if JSC’s statutory position is correct, it was nonetheless responsible to pay for the medical treatment she received 

outside the Form 50 process. Rogers contends that JSC was 

responsible to pay for treatment provided by doctors in Florida 

because after Dr. Beyers died, it reimbursed her for treatment 

she received from his colleague, Dr. Stonehocker. She also 

contends that JSC is responsible because it failed to plead her 

failure to obtain a written referral for treatment as an affirmative defense.

[10] Rogers appears to take the position that by making payments for treatment provided by Dr. Stonehocker, JSC effectively gave Rogers the right to unilaterally obtain treatment 

from anyone notwithstanding the limitations of § 48-120(2). 

Rogers has not identified any statutory language that would 
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Cite as 304 Neb. 605

support this argument. Moreover, it is inconsistent with 

both general principles of workers’ compensation law and 

§ 48-120(2)(a). Voluntary payments of workers’ compensation benefits do not constitute an admission of liability by the 

employer. McBee v. Goodyear Tire & Rubber Co., 255 Neb. 

903, 587 N.W.2d 687 (1999). Furthermore, § 48-120(2)(a) 

contemplates that the employer may agree to a change in the 

Form 50 Physician. By providing reimbursement for treatment provided by Dr. Stonehocker, JSC was not admitting it 

was liable to make payments to anyone from whom Rogers 

obtained treatment.

Rogers fares no better with her argument that JSC cannot 

rely on a failure to obtain a referral because it did not plead 

it as an affirmative defense. The issue of whether JSC should 

reimburse Rogers for her past medical bills was decided in the 

context of a motion filed by Rogers. The Nebraska Workers’ 

Compensation Act allows for disputes to be presented by 

motion. See Neb. Rev. Stat. § 48-162.03 (Cum. Supp. 2018). 

We are aware of no authority, however, that requires (or even 

allows) the nonmoving party in a workers’ compensation proceeding to make a filing in response to a motion. Thus, even 

if the failure to obtain a referral is an affirmative defense, 

we see no basis to conclude that JSC waived it by failing to 

plead it.

Having determined that the plain text of § 48-120(2) governs and that JSC did not somehow waive the right to rely 

on that statute, it becomes clear that the compensation court 

should not have ordered JSC to reimburse Rogers for medical 

treatment obtained from providers in Florida. These providers were not Rogers’ initial Form 50 Physician, they did not 

become the Form 50 Physician by way of either agreement 

or court order, and Rogers was not referred to them by her 

Form 50 Physician. The services they provided were thus 

“medical services furnished or ordered by [a] physician or 

other person selected by the employee in disregard of this 

section.” § 48-120(2)(f). JSC is not responsible to pay for 
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Cite as 304 Neb. 605

such services, and the compensation court erred by holding 

to the contrary.

Rule 11.

We now turn to JSC’s contention that the compensation 

court’s decision did not comply with Workers’ Comp. Ct. R. 

of Proc. 11 (2011). Among other things, rule 11 requires that a 

“decision[] of the court shall provide the basis for a meaningful 

appellate review.” JSC argues that the portion of the compensation court’s order stating that Rogers may continue to receive 

treatment from Dr. Daitch’s office did not provide a basis for 

meaningful appellate review. We agree.

While the compensation court clearly explained the reasoning supporting its conclusion that JSC was responsible for 

medical bills Rogers already incurred, it went on to discuss 

whether JSC should be responsible for medical treatment provided by Dr. Daitch and his colleague, Dr. Michael Frey, going 

forward. It stated:

It appears that the only argument in this case, as far 

as treatment, is whether or not it is appropriate to use 

narcotics or opioids for an extended period of time. When 

[Rogers] first began treatment with Dr. Daitch and Dr. 

Frey, the use of opioids for pain was well accepted. It is 

only recently that the use of opioids has been questioned 

because of potential issues or problems with addiction. 

This being the case, it is time for both Dr. Daitch and Dr. 

Frey to review the plan of treatment and review alternatives to opioids such has been proposed by Dr. Massey 

and Dr. Essay.

If [JSC] desire[s] Dr. Daitch to review his plan and 

prepare a new plan, and explain why there cannot be a 

change in medications, it must do so at its own cost. The 

parties should agree on a method to ask Dr. Daitch to 

review his old plan and prepare a new plan, and explain 

why alternatives to the use of opioids are not utilized. 

This is something for the parties to work out as far as how 
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it gets done, but it may be in the best interest of [Rogers] 

to have the plan, which has been in effect for a number 

of years, reviewed and a new plan prepared. A new plan 

may be the old plan, but some statements should be made 

on why [Rogers] is not weaned off of some of her narcotics. The parties should know this court has no jurisdiction 

over Dr. Daitch.

At the conclusion of its order, the compensation court stated 

that Rogers “is allowed to continue treatment with Dr. Frey and 

Dr. Daitch.”

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.” § 48-120(6). 

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 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.

We have previously reversed orders and remanded causes 

under rule 11 when it was not possible to determine whether 

the compensation court made the findings necessary to support 

the relief awarded. See, e.g., Owen v. American Hydraulics, 

254 Neb. 685, 578 N.W.2d 57 (1998); Hale v. Standard Meat 
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Co., 251 Neb. 37, 554 N.W.2d 424 (1996). We believe it is 

appropriate to do so for the same reason here. 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.

CONCLUSION

Because we find that the compensation court erred by ordering JSC to reimburse Rogers for treatment from providers 

selected in disregard of § 48-120(2) and by issuing a decision 

that did not comply with rule 11, we reverse the order and 

remand the cause with directions to enter an order in compliance with rule 11.

Reversed and remanded with directions.

Stacy, J., not participating.