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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

MOYERS v. INTERNATIONAL PAPER CO.

Cite as 25 Neb. App. 282

Morton Moyers, appellee, v. International

Paper Company and One Republic

Insurance Company, appellants.

___ N.W.2d ___

Filed November 21, 2017. No. A-17-008.

1. Workers’ Compensation: Evidence: Appeal and Error. Admission of 

evidence is within the discretion of the Workers’ Compensation Court, 

whose determination in this regard will not be reversed upon appeal 

absent an abuse of discretion.

2. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify, 

reverse, or set aside a Workers’ Compensation Court decision only when 

(1) the compensation court acted without or in excess of its powers; (2) 

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

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

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

3. ____: ____. Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless they are 

contrary to law or depend on findings of fact which are clearly wrong in 

light of the evidence.

4. Workers’ Compensation: Evidence: Appeal and Error. When testing 

the sufficiency of the evidence to support findings of fact made by the 

Workers’ Compensation Court trial judge, 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.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, the party must be appealing from a 

final order or a judgment.

6. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), an appellate court may review three types of final 

Nebraska Supreme Court Online Library

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

11/28/2017 09:13 AM CST
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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, and (3) an order that affects a 

substantial right made on summary application in an action after a judgment is rendered.

7. Workers’ Compensation: Appeal and Error. A party can appeal an 

order from the Workers’ Compensation Court if it affects the party’s 

substantial right.

8. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 

(Reissue 2016) include those legal rights that a party is entitled to 

enforce or defend.

9. Final Orders: Appeal and Error. 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.

10. ____: ____. 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.

11. Workers’ Compensation: Judgments: Final Orders. 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.

12. Workers’ Compensation: Evidence: Appeal and Error. Admission of 

evidence is within the discretion of the Workers’ Compensation Court, 

whose determination in this regard will not be reversed upon appeal 

absent an abuse of discretion.

13. Workers’ Compensation: Rules of Evidence: Appeal and Error. The 

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

or statutory rules of evidence; it has discretion to admit evidence, and 

its decision to admit or exclude evidence will not be reversed on appeal 

absent an abuse of discretion.

14. Workers’ Compensation: Words and Phrases. Under the Nebraska 

Workers’ Compensation Act, an occupational disease means only a disease which is due to causes and conditions which are characteristic of 

and peculiar to a particular trade, occupation, process, or employment 

and excludes all ordinary diseases of life to which the general public 

is exposed.

15. Workers’ Compensation: Time. Under the Nebraska Workers’ 

Compensation Act, an injury has occurred as the result of an occupational disease when violence has been done to the physical structure of 
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MOYERS v. INTERNATIONAL PAPER CO.

Cite as 25 Neb. App. 282

the body and a disability has resulted. In other words, an occupational 

disease has caused an “injury” within the meaning of the act, at the point 

it has resulted in disability.

16. Workers’ Compensation. A workers’ compensation claimant may 

recover when an injury, arising out of and in the course of employment, 

combines with a preexisting condition to produce disability, notwithstanding that in the absence of the preexisting condition no disability 

would have resulted.

17. ____. 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.

18. Workers’ Compensation: Appeal and Error. Where the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the Workers’ 

Compensation Court.

19. Workers’ Compensation. Whether a plaintiff in a Nebraska workers’ 

compensation case is totally disabled is a question of fact.

20. ____. Total disability exists when an injured employee is unable to earn 

wages in either the same or a similar kind of work he or she was trained 

or accustomed to perform or in any other kind of work which a person 

of the employee’s mentality and attainments could perform.

21. Workers’ Compensation: Expert Witnesses. Although medical restrictions or impairment ratings are relevant to a claimant’s disability, the 

trial judge is not limited to expert testimony to determine the degree of 

disability but instead may rely on the testimony of the claimant.

Appeal from the Workers’ Compensation Court: Julie A. 

Martin, Judge. Affirmed.

Timothy E. Clarke and Thomas B. Shires, of Baylor, Evnen, 

Curtiss, Grimit & Witt, L.L.P., for appellants.

Terry M. Anderson and David M. O’Neill, of Hauptman, 

O’Brien, Wolf & Lathrop, P.C., for appellee.

Inbody, Pirtle, and Riedmann, Judges.

Pirtle, Judge.

I. INTRODUCTION

International Paper Company and One Republic Insurance 

Company (collectively IPC) appeal the decision of the Nebraska 
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MOYERS v. INTERNATIONAL PAPER CO.

Cite as 25 Neb. App. 282

Workers’ Compensation Court in which Morton Moyers was 

found to be permanently and totally disabled as a result of an 

occupational disease. The court found Moyers was entitled to 

weekly permanent disability benefits from and after the date 

he stopped working, September 20, 2014, except during those 

periods in which he was entitled to receive temporary total disability benefits. For the reasons that follow, we affirm.

II. PROCEDURAL BACKGROUND

On February 13, 2015, Moyers filed a petition alleging that 

he had sustained a personal injury to his respiratory system 

and lungs arising out of and in the scope and course of his 

employment with International Paper Company. He alleged the 

“incident and injury” occurred over the course of his 42 years 

of employment as he was “continually exposed to paper dust 

in his work environment which has caused chronic lung and 

respiratory condition.” He alleged that he provided notice of 

the accident and injury on or about August 27, 2014, and that 

IPC had failed or refused to pay workers’ compensation benefits to him.

IPC generally denied Moyers’ allegations and affirmatively 

alleged that his condition was caused by an inherent condition 

and that any disability was the result of an independent intervening cause. IPC alleged that Moyers failed to timely file his 

cause of action and that he failed to give timely notice of his 

injury as soon as practicable.

On April 14, 2016, this matter was heard before the Nebraska 

Workers’ Compensation Court. An award was issued on July 

22, in which the court found Moyers sustained his burden to 

prove that he sustained an occupational disease arising out of 

his employment. The court found that Moyers became temporarily totally disabled on September 20, 2014, the date he 

stopped working at International Paper Company, and that he 

reached maximum medical improvement on June 29, 2015.

The court found that Moyers was entitled to vocational 

rehabilitation services and stated that “[a]fter vocational rehabilitation services have been provided to [Moyers] as a result 
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Cite as 25 Neb. App. 282

of the injuries incurred on September 20, 2014, a further hearing may be had on the extent of [his] permanent partial disability measured as a loss of earning power.” The court found 

Moyers was entitled to certain medical expenses, but denied 

Moyers’ requests for future medical expenses, waiting-time 

penalties, attorney fees, and interest.

Moyers’ motion for a determination of loss of earning capacity was filed on October 11, 2016. The vocational consultant, 

Ted Stricklett, provided his opinion that Moyers was unable to 

participate in a vocational rehabilitation plan due to his ongoing breathing issues and that he was not a viable candidate in 

the open labor market. IPC filed a motion to quash Moyers’ 

motion and a motion to compel vocational rehabilitation. The 

motions were heard on November 9, and an order was filed on 

December 2. The court found Moyers sustained a 100-percent 

loss of earning capacity and was “so handicapped that he 

[would] not be employed regularly in any well-known branch 

of the labor market.” The court found Moyers suffered permanent total disability as a result of his occupational disease and 

found Moyers was entitled to the sum of $552.87 per week 

from and after the date of his injury except during those periods of time in which he was entitled to receive temporary total 

disability benefits.

III. FACTUAL BACKGROUND

After Moyers graduated from high school in 1972, he began 

working for Weyerhaeuser, which was subsequently bought 

by International Paper Company, as a “sheet catcher.” He 

became a “checker” in 1974 and was responsible for placing 

the “scores and knives” in the machines. He left the company 

for a short period from September 1975 to May 1976 before 

returning to Weyerhaeuser.

He worked for Weyerhaeuser from 1976 into the 2000’s, 

when Weyerhaeuser was purchased by International Paper 

Company. He worked from 2008 to 2009 as a baler and became 

an assistant checker in 2009. Moyers’ last day of work for 

International Paper Company was September 19, 2014.
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MOYERS v. INTERNATIONAL PAPER CO.

Cite as 25 Neb. App. 282

Moyers first sought treatment at an emergency room for a 

respiratory condition in 1997. He reported a 2-month history of 

cough, a shortness of breath with exertion, and a 2-year history 

of nasal congestion. He had been treated for seasonal allergies 

and was taking prednisone and other medications for treatment 

of allergies and asthma.

Moyers sought treatment in May 2000 for allergic rhinitis. Moyers reported that the use of nasal spray, seasonally, 

relieved his symptoms. He sought medical treatment regularly 

from 2002 to 2006 for various respiratory, sinus, and bronchial 

complaints. He was treated for pneumonia in 2005.

Moyers treated with Dr. Thomas Nilsson at an allergy and 

asthma clinic from 2008 to 2011. In March 2010, Moyers 

saw Nilsson for shortness of breath and chest tightness which 

occurred even though he was using an inhaler. He expressed 

concerns of possible mold in his workplace and wondered if 

exposure to conditions in his workplace aggravated his breathing. Nilsson stated that Moyers’ mold allergies were probably 

not related to any of the symptoms he had. In 2011, Nilsson 

noted Moyers had a history of asthma, allergic rhinitis, and 

chronic anxiety.

Moyers began treating with a pulmonologist, Dr. George 

Thommi, in 2013 and reported having breathing problems 

since 1997. He reported recurrent bouts of allergy symptoms 

and bronchitis that were usually worse in the spring and fall. 

Pulmonary function tests showed “moderate obstructive lung 

disease and normal diffusion.”

In June 2014, Moyers reported shortness of breath, wheezing, and “coughing up brown sputum.” In July 2014, Moyers 

reported that he worked in a cardboard factory and that the 

temperatures in the building sometimes reached 140 degrees. 

Thommi noted that Moyers was exposed to “high temperatures 

and dust fumes at work” and opined that Moyers’ “work environment would aggravate his underlying pulmonary disease 

with recurrence of [his] bronchitis/pneumonia.” In August 

2014, Thommi noted that Moyers improved significantly and 
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Cite as 25 Neb. App. 282

was breathing very well after 2 weeks off of work, but his condition deteriorated after returning to the job. Moyers reported 

that after his return to work, his symptoms worsened to the 

point that he thought he needed to go to the emergency room. 

Thommi “recommended strongly that he not go to work in that 

current environment” and stated that “[c]ontinued exposure 

to this environment will cause end-stage respiratory failure.” 

Moyers did not return to work after September 19, 2014.

In January 2015, Moyers continued to report shortness of 

breath, wheezing, cold symptoms, cough, shakiness, and fatigue. 

In a functional assessment dated April 8, 2015, Thommi diagnosed Moyers with asthma, occupational lung disease recurrent, chronic upper respiratory infection, and bronchitis. In the 

workers’ compensation medical report prepared by Thommi, he 

diagnosed Moyers with obstructive lung disease/asthma, nocturnal hypoxemia, occupational lung disease, and hypersomnia 

and stated that Moyers’ condition was “caused, significantly 

contributed to, or aggravated by an accident or injury arising 

out of or in the scope of [his] employment.”

On September 29, 2015, Moyers was examined by Dr. 

D.M. Gammel, at IPC’s request, and Gammel also reviewed 

Moyers’ medical records. Gammel diagnosed Moyers with 

progressive obstructive lung disease/asthma, anxiety, depression, and sleep apnea syndrome. Gammel stated his opinion 

that Moyers’ diagnoses were related to preexisting health conditions. Gammel stated that there was no objective evidence to 

suggest the workplace environment was the cause of Moyers’ 

current condition or no objective evidence of an allergy to any 

irritant, chemical, or mold in his workplace. Gammel stated 

that the “dust may cause a respiratory irritant to temporarily 

exacerbate the pre-existing respiratory condition but not be 

the cause of the condition.” Gammel stated, “Although there 

is evidence that wood dust exposure can cause respiratory 

effects to include hypersensitivity pneumonitis and occupational asthma, there are other exposures that . . . Moyers had 

that can cause the conditions as well . . . .”
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MOYERS v. INTERNATIONAL PAPER CO.

Cite as 25 Neb. App. 282

IV. ASSIGNMENTS OF ERROR

IPC asserts the court erred in admitting and excluding certain exhibits, determining Moyers’ injury was an occupational 

disease rather than a repetitive trauma accident, finding Moyers 

met the burden of proving that he suffered an occupational disease, overruling IPC’s motion to quash and motion to compel 

vocational rehabilitation, and finding Moyers to be permanently and totally disabled.

V. STANDARD OF REVIEW

[1] Admission of evidence is within the discretion of the 

Workers’ Compensation Court, whose determination in this 

regard will not be reversed upon appeal absent an abuse of 

discretion. Tchikobava v. Albatross Express, 293 Neb. 223, 876 

N.W.2d 610 (2016).

[2] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), 

an appellate court may modify, reverse, or set aside a Workers’ 

Compensation Court decision only when (1) the compensation 

court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not 

sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact 

by the compensation court do not support the order or award. 

Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 

905 (2017).

[3] Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless 

they are contrary to law or depend on findings of fact which 

are clearly wrong in light of the evidence. Id.

[4] When testing the sufficiency of the evidence to support 

findings of fact made by the Workers’ Compensation Court 

trial judge, 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. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 

884 N.W.2d 124 (2016).
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MOYERS v. INTERNATIONAL PAPER CO.

Cite as 25 Neb. App. 282

VI. ANALYSIS

1. Jurisdiction

[5] For an appellate court to acquire jurisdiction of an 

appeal, the party must be appealing from a final order or a 

judgment. Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 

377 (2013). Moyers asserts that the July 22, 2016, award was 

a final order and that IPC failed to appeal the order within 30 

days of the judgment. Thus, he argues, this court is without 

jurisdiction to consider any of the issues adjudicated in the 

July 22 order. IPC asserts the July 22 order was an interlocutory order, as it “left open” the question of Moyers’ entitlement 

to permanent disability benefits, to be determined after he 

underwent vocational rehabilitation services. Brief for appellant at 22.

[6-9] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), 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, and (3) 

an order that affects a substantial right made on summary 

application in an action after a judgment is rendered. Jacobitz 

v. Aurora Co-op, supra. A party can appeal an order from the 

Workers’ Compensation Court if it affects the party’s substantial right. Id. Substantial rights under § 25-1902 include 

those legal rights that a party is entitled to enforce or defend. 

Jacobitz v. Aurora Co-op, 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.

[10] The Nebraska Supreme Court has held, even in workers’ 

compensation cases, that 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. Id. In cases where 
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MOYERS v. INTERNATIONAL PAPER CO.

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the employer’s defense is that the claimant failed to prove a 

work-related injury, the Nebraska Supreme Court has held that 

an appeal is interlocutory when the trial court has reserved 

issues for later determination. See id.

[11] In Jacobitz v. Aurora Co-op, supra, the court found that 

the employer did not appeal from a final order because the trial 

court determined only that the claimant’s accident occurred in 

the scope of his employment, but had not yet determined benefits. The Nebraska Supreme Court specifically stated, “From 

the date of this 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. at 104, 841 N.W.2d at 383.

In light of the Jacobitz v. Aurora Co-op opinion, we find 

the July 22, 2016, award regarding Moyers was not a final 

determination of benefits, as the court reserved the issue of 

“permanent partial disability [benefits] measured as a loss 

of earning power” until after vocational services had been 

provided. In the December 2, 2016, order, the court found 

Moyers was permanently and totally disabled and was entitled 

to benefits. At that point, there were no further issues to be 

adjudicated. We find IPC timely appealed from a final order, 

and this court has jurisdiction to address IPC’s assignments of 

error on appeal.

2. Admission of Evidence

(a) Exhibits 2 through 4 and 6

At the April 14, 2016, hearing, Moyers offered exhibits 1 

through 14. IPC objected to several exhibits on the basis of 

foundation, hearsay, and relevance, arguing there is insufficient evidence relied upon by the treating physicians to render 

the opinions they did. The court overruled IPC’s objections 

in the July 22 award without providing explicit reasoning for 

the rulings. On appeal, IPC asserts the court erred in receiving exhibits 2 through 4 and 6. Exhibit 2 contains the records 
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MOYERS v. INTERNATIONAL PAPER CO.

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and notes from Moyers’ medical visits with Thommi. Exhibit 

3 is the workers’ compensation medical report prepared by 

Thommi. Exhibit 4 is the functional assessment form prepared by Thommi, and exhibit 6 contains additional notes 

from Thommi’s office from a visit with Moyers in 2014. 

Each of the exhibits are personally or electronically signed 

by Thommi.

IPC asserts Thommi’s opinion “lacks foundation,” as he does 

not provide a factual basis for his opinion. Brief for appellant 

at 37. IPC argues that Thommi refers to Moyers’ exposure to 

“high temperatures and dust fumes at work” in the “Impression 

and Plan” section of the report, even though Moyers alleged 

that he was exposed to paper dust and not dust fumes. IPC 

also argues that Thommi did not provide an opinion regarding the causal relationship between Moyers’ condition and his 

exposure to paper dust or dust fumes and that, rather, Thommi 

focused his recommendations on the role of “heat in [Moyers’] 

work environment.” Id.

Workers’ Comp. Ct. R. of Proc. 10(A) (2011) provides:

The Nebraska Workers’ Compensation Court is not bound 

by the usual common law or statutory rules of evidence; 

and accordingly, with respect to medical evidence on 

hearings before a judge of said court, written reports by 

a physician or surgeon duly signed by him, her or them 

and itemized bills may, at the discretion of the court, be 

received in evidence in lieu of or in addition to the personal testimony of such physician or surgeon . . . .

See, also, Neb. Rev. Stat. § 48-168(1) (Reissue 2010).

[12] 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. 

Contreras v. T.O. Haas, 22 Neb. App. 276, 852 N.W.2d 339 

(2014). See, also, Roness v. Wal-Mart Stores, 21 Neb. App. 

211, 837 N.W.2d 118 (2013). Admission of evidence is within 

the discretion of the Workers’ Compensation Court, whose 

determination in this regard will not be reversed upon appeal 
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absent an abuse of discretion. Hynes v. Good Samaritan Hosp., 

291 Neb. 757, 869 N.W.2d 78 (2015).

In this case, each of the challenged exhibits contain written 

reports, signed by Moyers’ physician, Thommi. These exhibits 

were received at the discretion of the Workers’ Compensation 

Court in lieu of Thommi’s personal testimony. Although IPC 

may disagree with Thommi’s substantive findings, the records 

are a representation of Moyers’ medical history and treatment 

which is relevant to this case. We cannot find the court erred 

in receiving exhibits 2 through 4 and 6 over IPC’s objections.

(b) Exhibit 32

IPC asserts the district court erred in sustaining Moyers’ 

objection to exhibit 32 and in not allowing it to be admitted 

for rebuttal purposes.

Prior to the start of trial, IPC made an oral motion for a 

continuance of the trial or, in the alternative, to allow exhibit 

32 to be received into evidence. Exhibit 32 is an “Industrial 

Hygiene Exposure Assessment” dated October 24, 2008, purportedly for the facility where Moyers was employed. Counsel 

for IPC stated the report was received 1 week prior to trial, but 

after the deadline set by the court for disclosure of exhibits. 

Additional time was requested so the report could be reviewed 

and its findings analyzed. Moyers objected, stating that the 

case had been on file since February 2015 and IPC was on 

notice the case involved respiratory lung disease, that ample 

discovery had been conducted by the parties, and that Moyers 

had not worked since 2014 and would be prejudiced by another 

delay in the trial.

The court did not find good cause was shown as to why 

IPC should be entitled to a continuance. The court did not find 

adequate justification for IPC to not have obtained air quality 

testing reports of its facility until the eve of trial, given the 

length of time the case had been on file, especially for a report 

that was approximately 7 years old. The court overruled IPC’s 

motion to continue.
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Moyers objected to IPC’s offer of exhibit 32 on the basis 

of hearsay, foundation, and relevance, and he argued that the 

exhibit was prejudicial as it was not timely disclosed pursuant to the court’s pretrial orders. The objection was sustained. 

Offers of proof were made as to exhibit 32 on two occasions, 

and the exhibit was received for only that limited purpose.

IPC recognizes that the contents of exhibit 32 were disclosed after the discovery deadline and does not argue that the 

court erred by not admitting the exhibit as substantive factual 

evidence. Rather, IPC argues that the court erred by sustaining 

Moyers’ objection to the exhibit as rebuttal evidence which 

could have been used to impeach him.

After each offer of proof, the court ruled that exhibit 32 

should be excluded from evidence. The court reasoned that 

it was “very clear early on in the case that this was about a 

respiratory issue” and that air quality testing had been done by 

International Paper Company since 2005. When the case was 

filed in 2015, the parties were on notice of the issues involved, 

and pretrial orders stated that discovery was to be completed 

7 days before trial. Because exhibit 32 was not disclosed to 

Moyers within the timeframe set by the court, it was excluded 

for all purposes, including rebuttal.

[13] As previously discussed, the Workers’ Compensation 

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

rules of evidence; it has discretion to admit evidence, and its 

decision to admit or exclude evidence will not be reversed on 

appeal absent an abuse of discretion. Jurgens v. Irwin Indus. 

Tool Co., 20 Neb. App. 488, 825 N.W.2d 820 (2013). Upon 

our review, we cannot find the court abused its discretion in 

excluding exhibit 32 for rebuttal purposes.

3. Occupational Disease or

Repetitive Trauma

In his petition, Moyers alleged that he sustained injury as a 

result of an “incident and injury” that “occurred over the course 

of his 42 years of continuous employment” with International 
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Paper Company. He asserted that being “continually exposed 

to paper dust in his work environment . . . caused a chronic 

lung and respiratory condition.” The July 22, 2016, award 

contains the court’s conclusion that Moyers established, by a 

preponderance of the evidence, that he sustained an “aggravation to a pre-existing condition through his long-term exposure 

to paper dust/airborne contaminants arising out of and in the 

course of his employment with [IPC] resulting in an occupational disease.”

IPC asserts the court erred in analyzing Moyers’ injury as an 

occupational disease rather than a repetitive trauma accident.

[14] Neb. Rev. Stat. § 48-101 (Reissue 2010) provides:

When personal injury is caused to an employee by 

accident or occupational disease, arising out of and in the 

course of his or her employment, such employee shall 

receive compensation therefor from his or her employer 

if the employee was not willfully negligent at the time of 

receiving such injury.

Occupational disease is defined to mean “only a disease which 

is due to causes and conditions which are characteristic of 

and peculiar to a particular trade, occupation, process, or 

employment and excludes all ordinary diseases of life to which 

the general public is exposed.” Neb. Rev. Stat. § 48-151(3) 

(Reissue 2010). Occupational disease cases typically show a 

“‘“long history of exposure without actual disability, culminating in the enforced cessation of work on a definite date.” 

. . .’” Ludwick v. Triwest Healthcare Alliance, 267 Neb. 887, 

896, 678 N.W.2d 517, 524 (2004). Here, the court found the 

“continuous exposure to paper dust” was peculiar to Moyers’ 

work and was not something the general public would have 

been exposed to.

IPC argues that “[Moyers’] exposure to dust was neither 

characteristic of nor peculiar to his employment,” so it cannot be said that he suffered an occupational disease. Brief for 

appellant at 25. IPC also argues that “[t]here is no evidence 

in the record supporting a finding that [Moyers] was exposed 
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to ‘paper dust’ during the course of his employment.” Id. IPC 

appears to draw a distinction between “dust” and “paper dust” 

in Moyers’ testimony where there does not appear to be any 

difference. Moyers uses both terms interchangeably.

Moyers testified that he was exposed to paper dust throughout his employment at Weyerhaeuser, which was subsequently 

bought by International Paper Company. He testified that one 

task that he regularly performed was to use a hose to blow 

paper dust off of the machines, which then sent the dust into 

the air. He specifically stated that in “[c]ertain departments 

of the machine there would be — you would have to do the 

starch and take all the starch off the machine, grease, just a 

lot of paper dust mostly . . . .” He stated that after the dust 

was blown off of the machines, it was swept up and deposited into 55-gallon drums. He testified that when cardboard 

boxes are being cut, it creates dust, and that vacuum bags 

were attached to the machines to catch the dust created by 

the machines. He testified that there were periods of days, 

months, or even years when the vacuum bags were removed 

to make the machines more productive. When the machines 

were operated without the bags, the dust was released into 

the air. In his deposition, Moyers stated that at times, an individual in his work environment could “[h]old [their] hand out 

and watch the paper dust fall on [their] hand.” Moyers generally did not wear a mask during his shift, except when he was 

cleaning, because the facility was hot and the mask made it 

difficult to breathe.

An employee of International Paper Company testified that 

he worked there for 12 years and has been a supervisor for 

10 years. For the 5 or 6 years prior to trial, he was in control 

of the vacuum bags. He made sure that the bags were on the 

machines for those years “for dust purposes.” He testified 

that from the time he began working at International Paper 

Company to the time he was placed in control of the vacuum 

bags, the bags were off of the vacuums at times for “production 

purposes, getting the machines to run better.” He testified that 
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he was not sure if the bags were on the machines 100 percent 

of the time when he was not in control of their use. He stated 

that the bags are there to catch the dust and that if they are not 

in place, the dust “goes on the floor.”

IPC argues Moyers’ claims should have been analyzed in 

the context of a repetitive trauma, rather than an occupational 

disease. IPC refers to Risor v. Nebraska Boiler, 277 Neb. 679, 

765 N.W.2d 170 (2009), in which the Nebraska Supreme Court 

determined that noise exposure is caused by repetitive external 

trauma, produced in the work environment. The court found 

that noise-related hearing loss is not properly classified as an 

occupational disease because exposure to loud noises does not 

create a hazard that distinguished the plaintiff’s exposure from 

a myriad of other occupations. In Risor v. Nebraska Boiler, the 

court found that occupational hearing loss does not result from 

exposure to a “workplace substance.” 277 Neb. at 695, 765 

N.W.2d at 185.

The Supreme Court has declined to analyze repetitive trauma 

cases in the context of occupational disease. In reaching its 

decision in Risor v. Nebraska Boiler, the Nebraska Supreme 

Court compared the plaintiff’s condition to a “substance exposure” case, in which the Nebraska Supreme Court found the 

plaintiff’s employment exposed him to unusual amounts of 

wheat dust, which the court found to be peculiar to and characteristic of grain elevator operations. 277 Neb. at 689, 765 

N.W.2d at 181. See Riggs v. Gooch Milling & Elevator Co., 

173 Neb. 70, 112 N.W.2d 531 (1961). The Supreme Court 

has considered exposure to other workplace substances that 

resulted in occupational diseases, including exposure to latex, 

silica, asbestos particles, dishwashing detergents, and cleansing 

chemicals. Risor v. Nebraska Boiler, supra.

In this case, the Workers’ Compensation Court likened 

Moyers’ condition to that of the plaintiff in Riggs v. Gooch 

Milling & Elevator Co., supra, in determining that Moyers 

had suffered an occupational disease. Upon our review, we 

find this case is most similar to Riggs v. Gooch Milling & 
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Elevator Co., as there is evidence that Moyers was exposed 

to a workplace substance, namely an unusual amount of paper 

dust which would be peculiar to and characteristic of paper 

or cardboard manufacturing operations. Upon our review, we 

cannot find the court erred in analyzing Moyers’ condition 

as a potential occupational disease, rather than a repetitive 

trauma accident.

4. Burden of Proving

Occupational Disease

As previously discussed, the court found that Moyers’ 

injury was an occupational disease and that he submitted sufficient proof that his underlying condition was aggravated by 

his work at International Paper Company. IPC asserts the court 

erred in finding Moyers met the burden of proving that his 

exposure to “‘paper dust’” in his work environment caused 

his respiratory and lung condition or aggravated his preexisting respiratory or lung conditions. Brief for appellant at 29. 

IPC argues there is no expert medical opinion establishing a 

causal relationship between Moyers’ alleged exposure to paper 

dust and aggravation of his lung and respiratory condition, 

which would warrant the findings of the workers’ compensation court.

[15] Under the Nebraska Workers’ Compensation Act, an 

injury has occurred as the result of an occupational disease 

when violence has been done to the physical structure of 

the body and a disability has resulted. Ludwick v. Triwest 

Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004). 

See § 48-151(4). In other words, an occupational disease has 

caused an “injury,” within the meaning of the act, at the point 

it has resulted in disability. Ludwick v. Triwest Healthcare 

Alliance, supra. See § 48-151(4). The term “injury” includes 

disablement from occupational disease arising out of and in 

the course of the employment in which the employee was 

engaged and which was contracted in such employment. See 

§ 48-151(4).
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In 1972, Moyers began work for Weyerhaeuser, which was 

subsequently bought by International Paper Company. Moyers 

testified regarding his working conditions and exposure to 

paper dust throughout his employment. He began experiencing 

nasal, throat, and lung issues in 1997 and sought treatment. 

There is evidence that Moyers shared his concerns regarding 

his working conditions with his treating physicians from the 

beginning of his treatment. In 1997, Moyers sought treatment 

at an emergency room and reported having shortness of breath, 

spasms, and coughing. Notes from that emergency room visit 

indicate that Moyers worked in the “cardboard manufacturing 

industry around a lot of dust, and his cough is worse there,” 

and that his cough improved away from work. Moyers reported 

to Nilsson in 2008 that he was exposed to “paper dust” at work, 

but, at that time, could not say that his symptoms were worse 

in his work environment. He experienced these symptoms over 

a number of years until 2014, when it was recommended that 

he cease his employment. Moyers’ pulmonologist, Thommi, 

opined that “[c]ontinued exposure to this environment will 

cause end-stage respiratory failure.”

The International Paper Company supervisor testified that 

precautions were taken at the company in the most recent 

years to trap or minimize the amount of dust in the air. 

However, he had no specific knowledge of the safety measures taken prior to his role as supervisor or prior to his period 

of employment.

Moyers offered a questionnaire signed by Thommi to support his claim, in which Thommi diagnosed “obstructive lung 

disease/asthma,” “nocturnal hypoxemia /occupational lung disease with exacerbation,” and “hypersomnia.” Thommi checked 

the box to indicate his opinion that “the diagnosed condition 

[was] caused, significantly contributed to, or aggravated by an 

accident or injury arising out of or in the scope of [Moyers’] 

employment.” The court noted, “Although the higher courts 

have expressed some dissatisfaction with opinions expressed 

by check marks on a questionnaire, those reports are not to 
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be rejected outright but should be examined as to a lack of 

credibility or weight.” See Liberty v. Colonial Acres Nsg. 

Home, 240 Neb. 189, 481 N.W.2d 189 (1992). Even though 

the Workers’ Compensation Court found Thommi’s opinion 

was lacking as to whether Moyers’ work was the cause of his 

lung disease, the court found sufficient proof that Moyers’ 

underlying respiratory condition was aggravated by his work 

at International Paper Company. The court was persuaded by 

the “progressive nature” of Moyers’ medical condition “after 

returning to work following brief hiatuses therefrom when his 

condition had improved.”

IPC offered the opinion of Gammel, who reviewed Moyers’ 

medical records. Gammel opined that there was no objective 

evidence to suggest that Moyers’ workplace environment was 

the cause of his current condition based upon a reasonable 

degree of medical certainty, but there is objective evidence 

that his condition was related to his personal and non-workrelated health issues. These issues included allergies and seasonal symptoms aggravated by house dust, emotional upset, 

and respiratory infections. Gammel acknowledged that “dust 

may cause a respiratory irritant to temporarily exacerbate the 

pre-existing respiratory condition but not be the cause of the 

condition.” Gammel also noted that “wood dust exposure can 

cause respiratory effects [which] include hypersensitivity pneumonitis and occupational asthma.”

[16] The law of this state has consistently recognized that 

“the lighting up or acceleration of preexisting conditions by 

accident is compensable.” Riggs v. Gooch Milling & Elevator 

Co., 173 Neb. 70, 74, 112 N.W.2d 531, 533 (1961). The 

Nebraska Supreme Court has held that a workers’ compensation claimant may recover when an injury, arising out of and in 

the course of employment, combines with a preexisting condition to produce disability, notwithstanding that in the absence 

of the preexisting condition no disability would have resulted. 

Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 

179 (2009).
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In occupational disease cases, the Nebraska Supreme Court 

has stated that disability results at the point when “‘the injured 

worker is no longer able to render further service.’” Ludwick v. 

Triwest Healthcare Alliance, 267 Neb. 887, 895, 678 N.W.2d 

517, 523 (2004). Here, the court considered the expert opinion 

of Gammel, but deferred to Thommi’s opinion, noting that 

even though Gammel is a qualified doctor, he is not a pulmonologist or a specialist trained in the field of respiratory 

conditions or diseases. The court found that, when taking the 

evidence as a whole, Moyers’ asthma and preexisting respiratory condition became an occupational disease on September 

19, 2014, when Thommi strongly recommended that Moyers 

not return to work.

[17,18] 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. Tchikobava v. Albatross 

Express, 293 Neb. 223, 876 N.W.2d 610 (2016). Where the 

record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for 

that of the Workers’ Compensation Court. Hintz v. Farmers 

Co-op Assn., 297 Neb. 903, 902 N.W.2d 931 (2017).

Viewing the evidence in the light most favorable to Moyers, 

and giving him the benefit of every inference reasonably 

deducible from the evidence, we find the court was not clearly 

wrong in finding Moyers met his burden to prove that he sustained an occupational disease arising out of his employment.

5. Motion to Quash

IPC asserts the court erred in overruling IPC’s motion to 

quash Moyers’ motion for determination of loss of earning 

capacity and his motion to compel vocational rehabilitation.

IPC asserts the vocational rehabilitation counselor, Stricklett, 

ignored the medical opinions of Moyers’ physician and the 

court’s adoption of permanent restrictions, and relied only 

upon “[Moyers’] subjective complaints, despite the lack of any 

medical evidence demonstrating a change in [his] condition 
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since the adoption of the permanent restrictions.” Brief for 

appellant at 43. IPC alleges it was prejudiced by Stricklett’s 

decision to allow Moyers to subjectively state that he could 

not undergo vocational rehabilitation services without medical 

evidence to support his claims.

Stricklett’s letter to counsel for the parties, dated September 

22, 2016, stated that he met with Moyers on September 1 to 

review his vocational rehabilitation options. Stricklett noted 

that because Moyers was unable to return to International 

Paper Company in any capacity, his vocational rehabilitation 

options included a 90-day job search or a period of formal 

training. During the meeting, Moyers informed Stricklett that 

he would be unable to work part time or full time due to his 

severe breathing issues, which require the use of a nebulizer 

every 4 hours. Moyers stated that he is unable to sit in a classroom, he does not handle hot or cold environments very well, 

and he does not leave home but for short periods of time in 

case a breathing treatment is required.

Stricklett concluded with a “reasonable degree of vocational 

certainty” that Moyers was unable to participate in either of 

the vocational rehabilitation plans available to him. Stricklett 

stated that Moyers is not a viable candidate in the open labor 

market, nor is he a candidate for training due to his inability 

to be away from his home and his breathing treatments for 

extended periods of time.

The court noted that the vocational rehabilitation statutes 

provide that a chosen counselor “shall evaluate the employee 

and, if necessary, develop and implement a vocational rehabilitation plan.” Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010). 

The statute further provides that “the specialist shall make an 

independent determination as to whether the proposed plan 

is likely to result in suitable employment for the injured 

employee.” Id. In this case, Stricklett determined, based on 

the medical records and his interactions with Moyers, that the 

available options for a vocational rehabilitation plan would not 

restore Moyers to suitable employment.
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The court considered this evidence, as well as Moyers’ age, 

medical condition, education, and lack of transferable job 

skills, which all have precluded him from the only work he 

knows. The court observed Moyers in the courtroom and found 

it “extremely unlikely that any employer, even the very most 

beneficent employer, would offer him a position.” The court 

found that vocational rehabilitation was not feasible under 

the circumstances.

Upon our review of the evidence, we cannot find the court 

was clearly wrong in overruling IPC’s motions to quash and to 

compel vocational rehabilitation under the circumstances.

6. Determination of Permanent

Total Disability

IPC asserts the court erred in finding that Moyers was 

permanently and totally disabled, arguing the expert medical 

evidence did not support the determination and there was not 

sufficient evidence to warrant the court’s finding.

[19,20] Whether a plaintiff in a Nebraska workers’ compensation case is totally disabled is a question of fact. Tchikobava 

v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016). 

Total disability exists when an injured employee is unable to 

earn wages in either the same or a similar kind of work he 

or she was trained or accustomed to perform or in any other 

kind of work which a person of the employee’s mentality 

and attainments could perform. Id. 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.

IPC argues that Gammel and Thommi provided permanent 

restrictions which would have allowed Moyers to return to 

work and that the court adopted these restrictions. IPC asserts 

the vocational counselor did not provide a loss of earning capacity analysis nor formulate a vocational rehabilitation plan based on the permanent restrictions adopted by the 

court, “even though the Court specifically indicated [Moyers’] 
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entitlement to permanent disability benefits was to be determined after undergoing vocational rehabilitation.” Brief for 

appellant at 47.

The evidence shows Stricklett prepared a loss of earning 

capacity analysis in February 2016. In it, Stricklett stated that 

if consideration is given to the opinion of Thommi, Moyers is 

unable to lift, stand, or walk and therefore he is completely 

unemployable and his loss of earning capacity would be 100 

percent. However, Stricklett stated, in his analysis, if consideration is given to the opinion of Gammel, Moyers’ loss of earning capacity would be 0 percent, because Gammel’s opinion 

was that Moyers’ condition was not work-related. In the July 

22, 2016, order, the court explicitly disagreed with Gammel’s 

causation opinion and delayed a determination of loss of earning capacity until such time as Moyers underwent vocational 

rehabilitation services.

As previously discussed, the court allowed the case to proceed for a determination of loss of earning capacity, without 

the preparation and completion of a vocational rehabilitation 

plan. The court considered Stricklett’s opinion that Moyers 

was unable to participate in a vocational rehabilitation plan 

due to his ongoing medical issues. The court found Moyers 

was an “odd lot employee, i.e. someone who [is] not altogether 

incapacitated for work [but] is so handicapped that he will not 

be employed regularly in any well-known branch of the labor 

market.” The December 2, 2016, order noted that the court 

observed Moyers’ “difficulty breathing firsthand and was convinced of the veracity of his complaints.”

[21] The court noted that when evaluating a loss of earning 

capacity, it must consider the ability to procure employment 

generally, the ability to earn wages in one’s employment, the 

ability to perform tasks of the work in which one is engaged, 

and the ability to hold a job obtained. The record shows that 

the court considered each of these factors, as well as the 

evidence of Moyers’ educational background, work history, 

medical conditions, and vocational options, and concluded 
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that he was permanently and totally disabled. The Nebraska 

Supreme Court has stated that although medical restrictions 

or impairment ratings are relevant to a claimant’s disability, 

the trial judge is not limited to expert testimony to determine the degree of disability, but instead may rely on the 

testimony of the claimant. Tchikobava v. Albatross Express, 

293 Neb. 223, 876 N.W.2d 610 (2016). Upon our review, we 

find the court considered the appropriate factors and was not 

clearly wrong in determining that Moyers was permanently 

and totally disabled.

VII. CONCLUSION

We affirm the decision of the Nebraska Workers’ 

Compensation Court finding that Moyers is permanently and 

totally disabled as a result of an occupational disease and that 

he is entitled to benefits.

Affirmed.