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WEYERMAN v. FREEMAN EXPOSITIONS

Cite as 26 Neb. App. 692

Randy Weyerman, appellee, v. Freeman Expositio

employer, and Old Republic Insurance 

insurance carrier, appell

___ N.W.2d ___

Filed December 18, 2018. No. A-18-277.

1. 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 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.

2. ____: ____. Findings of fact made by the compensation court have the 

same force and effect as a jury verdict and will not be set aside unless 

clearly erroneous.

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

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

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.

4. Employer and Employee: Independent Contractor. There is no single 

test for determining whether one performs services for another as an 

employee or as an independent contractor.

5. ____: ____. Ordinarily, when a court is presented with a dispute regarding a party’s status as an employee or an independent contractor, the 

party’s status is a question of fact which must be determined after consideration of all the evidence in the case.

6. Workers’ Compensation. As the trier of fact, the compensation court 

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

given their testimony.

Nebraska Supreme Court Online Library

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

12/18/2018 08:08 AM CST
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7. Workers’ Compensation: Insurance: Liability: Time. When a subsequent injury aggravates a prior injury, the insurer at risk at the time of 

the subsequent injury is liable. But, if the subsequent injury is a recurrence of the prior injury, the insurer at risk at the time of the prior injury 

is liable.

8. Workers’ Compensation: Appeal and Error. A finding in regard to 

causation of an injury is one for determination by the compensation 

court as the finder of fact.

9. Workers’ Compensation: Expert Witnesses: Physicians and 

Surgeons. Resolving conflicts within a health care provider’s opinion 

rests with the compensation court, as the trier of fact.

10. Workers’ Compensation: Words and Phrases. Under Neb. Rev. Stat. 

§ 48-121 (Reissue 2010), a workers’ compensation claimant may receive 

permanent or temporary workers’ compensation benefits for either partial or total disability. Temporary disability ordinarily continues until 

the claimant is restored so far as the permanent character of his or her 

injuries will permit.

11. Workers’ Compensation. Once a worker has reached maximum medical improvement from a disabling injury and the worker’s permanent 

disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

12. ____. Generally, whether a workers’ compensation claimant has reached 

maximum medical improvement is a question of fact.

13. Workers’ Compensation: Appeal and Error. When the record presents 

nothing more than conflicting medical testimony, an appellate court will 

not substitute its judgment for that of the compensation court.

Appeal from the Workers’ Compensation Court: James R.

Coe, Judge. Affirmed.

Abigail A. Wenninghoff and Jocelyn J. Brasher, of Larson, 

Kuper & Wenninghoff, P.C., L.L.O., for appellants.

Jacob M. Steinkemper, of Steinkemper Law, P.C., L.L.O., 

for appellee.

Riedmann, Bishop, and Arterburn, J

Arterburn, Judg

INTRODUCTION

Freeman Expositions, Inc., and its insurance carrier, Old 

Republic Insurance Company (referred to herein individually 
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and collectively as “Freeman Expositions”), appeal from the 

Nebraska Workers’ Compensation Court’s award of benefits 

to Randy Weyerman. In the award, the compensation court 

ordered Freeman Expositions to pay to Weyerman temporary total disability payments. In addition, the court ordered 

Freeman Expositions to “continue to provide and pay for such 

future medical and hospital services and treatment as may be 

reasonably necessary as a result of [Weyerman’s] accident and 

injury.” On appeal, Freeman Expositions assigns numerous 

errors, including that the compensation court erred in finding that it was Weyerman’s employer on the day of his accident; that Weyerman’s injury occurred on September 17, 2015, 

rather than on October 9; that Weyerman had not yet reached 

maximum medical improvement (MMI); and that Weyerman 

is entitled to future medical care. For the reasons set forth 

herein, we affirm the compensation court’s award of benefits 

to Weyerman.

BACKGROUND

Weyerman’s Wor

as Stageha

Since 1994, Weyerman has worked as a stagehand. He 

described his job as “mostly set[ting] up . . . concerts, operas, 

plays, unload[ing] trucks, set[ting] up the gear. We do the lighting, the sound. We do all the categories. We also do carpentry 

and we run spotlights for the shows and we also work as a 

deckhand moving band gear.” In order to facilitate job opportunities, Weyerman is a member of the “International Alliance 

of Theatrical, Stage, and Moving Pictures.” This group is also 

referred to in our record as the “Local 42” or the “union.” 

Local 42 acts as a “referral hall,” obtaining and assigning jobs 

to its members.

In 2015, Local 42 had a collective bargaining agreement 

with Complete Payroll Services, Inc. (Complete Payroll). 

Pursuant to that agreement, Complete Payroll was considered 

the employer of members of Local 42 when the members 
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worked on Complete Payroll jobs. The president of Complete 

Payroll confirmed that in 2015, the company was the employer 

of union members when they worked on Complete Payroll 

jobs. He explained that Complete Payroll had contracts with 

various vendors who needed stagehands. Complete Payroll 

would provide union members to the vendors. In return, the 

vendors would pay Complete Payroll for the work completed 

by union members. Complete Payroll would then disburse 

paychecks directly to union members. In addition, Complete 

Payroll provided union members with certain employment 

benefits. The collective bargaining agreement between Local 

42 and Complete Payroll provided that Complete Payroll possessed “Management Rights” regarding its workforce:

Subject to the provisions of this Agreement and applicable state and federal law, the Employer retains the sole 

right to manage its business and direct the work force 

including, but without being limited to, the right to establish new tasks, abolish or change existing tasks, increase 

or decrease the number of tasks, change materials, processes, products, equipment and operations. The Employer 

shall have the right to schedule and assign work to be 

performed, establish, maintain and enforce reasonable 

plant rules and regulations, establish attendance policies 

and have the right to hire or rehire employees, promote 

employees, to demote or suspend, discipline or discharge 

for just cause, and to transfer or layoff employees because 

of lack of work.

The agreement also delineated a list of “work rules” for union 

members. These rules addressed such things as the length of 

the workday and the workweek, overtime and “premium” pay, 

and expectations during performances or rehearsals.

Members of Local 42 could also obtain work separate and 

apart from Complete Payroll. In 2015, Local 42 also had a collective bargaining agreement with Freeman Expositions. That 

agreement referred to Freeman Expositions as the “employer” 

when union members were working on Freeman Expositions’ 
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jobs. In fact, the first time a union member would work for 

Freeman Expositions, the member had to fill out “new hire 

paperwork.” Freeman Expositions would assign each union 

member an employee number and keep a record of each 

union member who had done work for the company. Freeman 

Expositions paid union members directly for their work on 

Freeman Expositions’ jobs. In addition, the agreement between 

Local 42 and Freeman Expositions included a description of 

the management rights possessed by Freeman Expositions. This 

description is nearly identical to the description of management 

rights retained by Complete Payroll in its agreement with Local 

42. Robert Lane, the business agent for Local 42, testified that 

Freeman Expositions managed union workers at the jobsites 

and controlled the work that the members completed.

Weyerman’s In

and Treatm

On September 17, 2015, Weyerman was working for Freeman 

Expositions, setting up for a trade show. During the first hour 

of his workday, Weyerman unloaded a truck full of materials, 

including heavy carts and “[c]urtain rod carts.” While he was 

still unloading the materials, Weyerman began to feel pain 

in his back. Despite the pain, Weyerman continued to work, 

rolling out aisle carpets and hanging curtains for individual 

booths. As Weyerman worked, the pain worsened. Weyerman 

described the pain as “sharp” and “pinching.” Weyerman finished his workday and had the next day off of work.

When Weyerman returned to work after his day off and 

began cleaning up after the trade show, he “was hurting horribly.” He got through the workday, but was only able to put 

away folding chairs. He could not do much physical labor. 

Weyerman’s pain did not improve. By 5 days after the accident, 

Weyerman described the pain as “brutal.” He was unable to 

even “get up off the floor.” Weyerman decided that he needed 

to report his injury and see a doctor. Weyerman informed 

Lane that he had hurt his back while working for Freeman 
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Expositions. Lane forwarded Weyerman’s accident report to 

Freeman Expositions. Freeman Expositions then authorized 

Weyerman to see Dr. Arthur West, who became Weyerman’s 

treating physician.

Medical records indicate that when Weyerman first saw 

his treating physician on September 22, 2015, he was diagnosed with a lumbar sprain and prescribed pain medication. 

The treating physician’s records indicate that 3 days later, on 

September 25, during a followup appointment, Weyerman told 

him that his pain had decreased and that his symptoms were 

improving. As a result of Weyerman’s report, his treating physician told Weyerman that he could return to “modified work/

activity.” The records further reflect that almost 1 week later, 

on October 2, Weyerman informed his treating physician that 

his symptoms had resolved and that he had been performing 

his regular work duties. The treating physician then released 

Weyerman from his care.

According to Weyerman and Lane, during the latter part 

of September 2015, Weyerman did return to work as a stagehand. However, Lane indicated that although Weyerman was 

working, he continued to complain that his back was hurting. 

Weyerman indicated to Lane that he really needed to work 

due to his financial situation, so Lane permitted Weyerman to 

do less physical jobs, including running a spotlight, handling 

lighting gear, and setting up for a ballet performance.

On October 9, 2015, a few days after Weyerman was released 

from his treating physician’s care, Weyerman was working for 

Complete Payroll to set up for a concert. He was assigned to 

push boxes from a truck to the inside of the venue. Within 2 

hours of beginning this work, Weyerman reported that he could 

not continue because of his back pain. He “couldn’t even get 

up off [a] chair at that point.” Weyerman reported his injury 

and sought medical treatment. October 9 is the last day that 

Weyerman worked as a stagehand.

On October 12, 2015, Weyerman was seen by a physician’s 

assistant at a health clinic. The notes from this visit indicate 
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that Weyerman reported that he injured his back 7 days prior to 

the visit, but he was “not sure” how he sustained the injury. A 

week later, on October 19, Weyerman saw his treating physician again. Weyerman reported that he was again experiencing back pain and was unable to perform his work duties. 

Ultimately, the treating physician prescribed pain medication 

for Weyerman and ordered a magnetic resonance imaging of 

his lower back. The treating physician indicated that Weyerman 

was not currently able to work.

The results of the magnetic resonance imaging revealed 

that Weyerman had multiple “disc bulge[s]” which were collectively referred to as “[m]ild to moderate multilevel lumbar 

spondylosis.” On November 2, 2015, the treating physician 

released Weyerman to return to work with some restrictions; 

however, Weyerman did not return to work. In addition, the 

treating physician referred Weyerman to a spine and pain center and to a physical therapist.

Weyerman began seeing Dr. Liane Donovan at the spine 

and pain center on November 17, 2015. During Weyerman’s 

treatment with Donovan, he received multiple epidural steroid injections and attended more than 20 physical therapy 

sessions. Weyerman reported that neither of these treatment 

options afforded him significant, long-term relief. In February 

2016, Weyerman saw a surgeon, who was of the opinion 

that Weyerman had no “surgical options at this point.” The 

surgeon noted that he was “unable to identify the source of 

[Weyerman’s] symptoms[,] but he may have an annular tear in 

the lumbar spine.”

On June 21, 2016, Donovan indicated her belief that 

Weyerman had reached MMI because he had “not responded 

to medication, injection therapy, [physical therapy,] and is not 

a surgical candidate.” Donovan ordered a functional capacity 

evaluation (FCE) for Weyerman. Weyerman participated in the 

FCE on July 8, 2016. However, the results of the FCE were 

deemed “invalid” because the evaluator did not believe that 

Weyerman was accurately representing his abilities. Based on 
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the invalid results of this FCE, Donovan released Weyerman 

from her care and indicated that he was capable of returning 

to work without any restrictions. Weyerman did not return to 

work as a stagehand.

Compensation Cou

Proceedi

Weyerman filed a petition in the compensation court alleging that he was injured on September 17, 2015, in the course 

of his employment with Freeman Expositions. He also alleged 

that he was injured on October 9, in the course of his employment with Complete Payroll.

A hearing was held on Weyerman’s petition in January 

2018. At the hearing, the parties presented evidence, including Weyerman’s employment records; the collective bargaining agreements Local 42 had with Freeman Expositions and 

with Complete Payroll; Weyerman’s medical records from 

his treating physician and Donovan; and depositions from 

Weyerman and officials from Local 42, Complete Payroll, and 

Freeman Expositions.

In addition to this evidence, Weyerman offered the results 

of an independent medical examination conducted on June 

30, 2017. Dr. Matthew West, the independent medical examiner, opined that Weyerman had not yet reached MMI. He 

believed that there were still treatments available that had 

not been tried and that such treatments may help minimize 

Weyerman’s symptoms and improve his overall function. He 

stated that it was “reasonable to anticipate future medical 

care that is related to the work injur[y],” including a referral 

to a pain clinic for medication management and chiropractic 

care. Essentially, he believed that Weyerman’s condition could 

improve with continued care.

Weyerman also offered into evidence the results of a second 

FCE which had been conducted on September 20, 2016. There 

were no concerns with the validity of this FCE, because it was 

noted that Weyerman had given “Excellent Effort” during the 
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evaluation. The results revealed that Weyerman is capable of 

working at the sedentary-light physical demand level for 8 

hours per day.

Also admitted into evidence were multiple letters authored 

by Donovan, which were all in response to inquiries from the 

parties. The first letter, dated February 29, 2016, was sent in 

response to an inquiry of counsel for Freeman Expositions. It 

stated, in part:

It is my opinion that . . . Weyerman has not reached 

[MMI] pending completing of the physical therapy previously ordered. [MMI] will be attained six (6) weeks after 

completion of the course of physical therapy. Based on his 

response to that therapy we will make determination[s] 

regarding permanent impairment and permanent restrictions at that time.

The second letter authored by Donovan is dated a little more 

than 8 months later, November 16, 2016. In that letter, Donovan 

answers specific inquiries presented to her by Weyerman’s 

counsel. Specifically, Donovan indicates that the work accident on September 17, 2015, “significantly contributed to . . . 

Weyerman’s injury.” She also opines that Weyerman reached 

MMI on July 19, 2016, and that, based upon the invalid results 

of the first FCE, Weyerman has not sustained any permanent 

impairment. Her review of the results of the second FCE 

did not change her opinion about any permanent impairment. 

Finally, Donovan indicated her belief that future medical care 

due to Weyerman’s work injury is not expected.

Almost 1 year later, on September 7, 2017, Donovan 

authored a third letter. This letter is in response to questions 

posed by counsel for Complete Payroll. In this letter, Donovan 

opines that when Weyerman reported back pain on October 9, 

2015, while working for Complete Payroll, that the pain constituted “a recurrence of his underlying lumbar complaints rather 

than a new and distinct injury.”

Donovan’s fourth letter, dated October 18, 2017, contradicts 

the September 7 letter. In the fourth letter, Donovan indicates 
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that after authoring the September 7 letter, she was presented 

with evidence that Weyerman had returned to work without 

restrictions prior to the October 9, 2015, accident. Based on 

this evidence, Donovan indicated that she was now “unable, 

based on a reasonable degree of medical certainty, to opine 

as to whether . . . Weyerman’s injuries and symptoms were 

caused solely by his September 17, 2015 or his October 9, 

2015 accidents.”

Donovan’s last letter was dated January 15, 2018. In this 

letter she states:

After reviewing new information regarding . . . Weyerman’s 

records, including the deposition of . . . Lane, the business agent for the local union, as well as [Weyerman’s] 

wage records, ongoing pain complaints, and work modifications, it is my opinion to a reasonable degree of medical 

certainty that . . . Weyerman’s low back pain complaints 

in October were a recurrence of his underlying lumbar 

complaints rather than a new and distinct injury.

Awa

Following the January 2018 hearing, the compensation 

court issued a detailed award. In the award, the court found 

that Weyerman suffered an injury to his back while working 

for Freeman Expositions on September 17, 2015. The court 

further found that Weyerman suffered a recurrence of this 

injury while working on October 9. The court then specifically 

found that Freeman Expositions was liable for Weyerman’s 

work-related injuries, because it was Weyerman’s employer on 

September 17.

The court found that Weyerman had not yet reached MMI. 

As a result, it awarded Weyerman continuing temporary total 

disability payments in the amount of $376.71 per week. The 

compensation court also ordered Freeman Expositions to “pay 

for such future medical and hospital services and treatment as 

may be reasonably necessary as a result of” Weyerman’s accident and the resulting injury.
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Freeman Expositions appeals from the compensation 

court’s award.

ASSIGNMENTS OF ERROR

On appeal, Freeman Expositions assigns five errors. 

Freeman Expositions argues, restated and reordered, that the 

compensation court erred first in determining that it was 

Weyerman’s employer on September 17, 2015. Second, 

Freeman Expositions argues that the court erred in determining that Complete Payroll was not Weyerman’s employer on 

October 9. Third, Freeman Expositions argues that the compensation court erred in finding that Weyerman did not suffer 

a new injury on October 9, but instead suffered a recurrence of 

his September 17 injury. Fourth, Freeman Expositions argues 

that the court erred in finding that Weyerman had not yet 

reached MMI and was, as a result, entitled to continuing temporary total disability payments. Finally, Freeman Expositions 

asserts that the court erred in ordering it to pay for Weyerman’s 

future medical care.

STANDARD OF REVIEW

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

an appellate court may modify, reverse, or set aside a 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. 

Hintz v. Farmers Co-op Assn., 297 Neb. 903, 902 N.W.2d 

131 (2017).

[2,3] Findings of fact made by the compensation court 

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

be set aside unless clearly erroneous. Id. When testing the 

sufficiency of the evidence to support findings of fact made 

by the compensation court trial judge, the evidence must be 
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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. Id.

ANALYSIS

Weyerman’s Employer

September 17, 201

Freeman Expositions asserts that the compensation court 

erred in finding that it was Weyerman’s employer on September 

17, 2015, when he injured his back. Freeman Expositions argues 

that Weyerman has never been its employee. Instead, it argues 

that Weyerman is either an employee of Complete Payroll or 

an independent contractor. Upon our review, we conclude that 

there is sufficient, competent evidence in the record to support 

the compensation court’s finding that Freeman Expositions 

was Weyerman’s employer on September 17.

[4,5] There is no single test for determining whether one 

performs services for another as an employee or as an independent contractor, and the following factors must be considered: 

(1) the extent of control which, by the agreement, the employer 

may exercise over the details of the work; (2) whether the 

one employed is engaged in a distinct occupation or business; 

(3) the kind of occupation, with reference to whether, in the 

locality, the work is usually done under the direction of the 

employer or by a specialist without supervision; (4) the skill 

required in the particular occupation; (5) whether the employer 

or the one employed supplies the instrumentalities, tools, and 

the place of work for the person doing the work; (6) the length 

of time for which the one employed is engaged; (7) the method 

of payment, whether by the time or by the job; (8) whether 

the work is part of the regular business of the employer; (9) 

whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 

(2013). Ordinarily, when a court is presented with a dispute 

regarding a party’s status as an employee or an independent 
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contractor, the party’s status is a question of fact which must 

be determined after consideration of all the evidence in the 

case. Id.

In the compensation court’s analysis of whether Weyerman 

was an employee of Freeman Expositions, it focused first on the 

collective bargaining agreement entered into by Local 42 and 

Freeman Expositions. The court noted that in the agreement, 

Freeman Expositions is clearly referred to as the “employer.” 

In addition, the compensation court found that pursuant to the 

terms of the agreement, Freeman Expositions retained a great 

deal of control over the work completed by union members. In 

fact, as we discussed in the background section of this opinion, the collective bargaining agreement includes the following provision regarding Freeman Expositions’ “Management 

Rights”:

Subject to the provisions of this Agreement and applicable state and federal law, the Employer retains the 

sole right to manage its business and direct the working 

force including, but without being limited to, the right 

to establish new tasks, abolish or change existing tasks, 

increase or decrease the number of tasks, change materials, processes, products, equipment and operations. The 

Employer shall have the right to schedule and assign work 

to be performed, . . . establish, maintain and enforce reasonable plant rules and regulations, establish attendance 

policies and have the right to hire or rehire employees, 

promote employees, to demote or suspend, discipline or 

discharge for just cause, and to transfer or layoff employees because of lack of work.

Also during the course of its analysis about Weyerman’s 

employment status, the compensation court discussed the deposition testimony of James Brackett, the director of operations 

for Freeman Expositions. In his testimony, Brackett indicated 

that Freeman Expositions supplies all of the work supplies, 

including tables, chairs, pipes, and drapes that union members 

use to set up the trade shows that they manage. Brackett also 
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indicated during his testimony that a large part of Freeman 

Expositions’ business involves coordinating trade shows.

In addition, the record reflects that Freeman Expositions 

pays union members directly for their work. Freeman 

Expositions also requires each union member to fill out 

new employee paperwork prior to beginning work for it and 

assigns each union member a unique employee number. Lane 

confirmed that Freeman Expositions manages union members who are working on Freeman Expositions’ jobsites and 

controls the work that members complete. Both Lane and 

Weyerman testified that they considered Freeman Expositions 

to be the employer when union members worked on Freeman 

Expositions’ jobsites.

We recognize that there is conflicting evidence in the 

record regarding Freeman Expositions’ status as Weyerman’s 

employer. The majority of this conflicting evidence comes 

from the deposition testimony of Brackett. Brackett testified 

that Freeman Expositions does not consider union members 

to be its employees. Instead, it considers union members to be 

employees of Local 42. Brackett also testified that the union 

maintained control over which workers were assigned to which 

task and supervised workers who were completing specific 

tasks. However, Brackett also indicated that the instructions 

for what tasks needed to be completed came directly from 

Freeman Expositions’ employees.

[6] Because the compensation court explicitly found Freeman 

Expositions to be Weyerman’s employer on September 17, 

2015, it clearly found the evidence of Freeman Expositions’ 

status as the employer to be more credible than Brackett’s 

testimony to the contrary. And, as the trier of fact, the compensation court is the sole judge of the credibility of the 

witnesses and the weight to be given their testimony. See 

Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 

405 (2003). Given all of the evidence presented regarding 

Weyerman’s employment status and given the compensation court’s determination of credibility, we cannot say that 
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the court erred in concluding that Freeman Expositions was 

Weyerman’s employer on September 17. There was evidence 

that Freeman Expositions referred to itself as the “Employer” 

of union members in the collective bargaining agreement it 

signed with Local 42. Freeman Expositions required union 

members to fill out employment paperwork and chose to pay 

union members directly. In addition, there was evidence that 

Freeman Expositions supplied the necessary tools for union 

members to set up trade shows and also controlled the work of 

union members as they completed such work.

Weyerman’s Employer

October 9, 20

Freeman Expositions also challenges the compensation court’s determination that Complete Payroll was not 

Weyerman’s employer on October 9, 2015, and the court’s 

decision to dismiss Complete Payroll from the case. Upon our 

review, we agree with Freeman Expositions that the compensation court incorrectly determined that Complete Payroll was 

not Weyerman’s employer on October 9. However, we also 

determine that the court’s error is harmless.

In the award, the compensation court specifically found that 

“Complete Payroll Services was not [Weyerman’s] employer 

on October 9, 2015, but, rather, an accounting service.” This 

finding is not supported by the evidence presented at the hearing. At the hearing, the president of Complete Payroll specifically testified that in 2015, union members were considered the 

employees of Complete Payroll when members were working 

on Complete Payroll projects. Everyone who testified agreed 

that when Weyerman was working on October 9, he was working a Complete Payroll job, setting up for a concert. In fact, 

the president of Complete Payroll testified that Weyerman 

was a Complete Payroll employee on October 9. We further 

note that Complete Payroll has admitted in its brief on appeal 

that it was Weyerman’s employer on October 9. Based on the 

evidence admitted at trial, the compensation court erred in 
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finding that Complete Payroll was not Weyerman’s employer 

on October 9.

However, the court’s finding that Complete Payroll was not 

Weyerman’s employer on October 9, 2015, constitutes harmless error. As we discuss in detail in the next section, the compensation court found that Weyerman’s October 9 injury was 

a recurrence of the September 17 injury and that, as a result, 

Freeman Expositions was liable for the injury. We affirm the 

compensation court’s finding. Because we affirm this finding, 

the identity of Weyerman’s employer on October 9 is irrelevant 

to his workers’ compensation claim. Furthermore, because 

Complete Payroll was not Weyerman’s employer on the date 

of his injury, the compensation court did not err in dismissing 

Complete Payroll from the case.

Injury on October 9, 

Was Recurrenc

September 17 In

Freeman Expositions asserts that the compensation court 

erred in determining that Weyerman’s back pain on October 

9, 2015, was a recurrence of the September 17 back injury, 

rather than a new and distinct injury. Freeman Expositions’ 

argument appears to be based on its contention that if the 

October 9 injury was a new and distinct injury, then Complete 

Payroll, as Weyerman’s employer on that day, would be 

liable to Weyerman instead of Freeman Expositions. Upon 

our review, we conclude that there is sufficient, competent 

evidence in the record to support the compensation court’s 

finding that the October 9 injury was a recurrence of the 

September 17 injury.

[7,8] When a subsequent injury aggravates a prior injury, 

the insurer at risk at the time of the subsequent injury is 

liable. Miller v. Commercial Contractors Equip., 14 Neb. App. 

606, 711 N.W.2d 893 (2006). But, if the subsequent injury is a 

recurrence of the prior injury, the insurer at risk at the time of 

the prior injury is liable. Id. A finding in regard to causation 
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of an injury is one for determination by the compensation 

court as the finder of fact. Id.

In its award, the compensation court specifically found 

that Weyerman’s accident on September 17, 2015, was the 

cause of his back injury and that Weyerman’s back pain on 

October 9 was a recurrence of the original injury suffered 

on September 17. In making this finding, the court cited to 

evidence in the record which indicated that Weyerman did 

not ever fully recover from the back injury he suffered on 

September 17. Such evidence included Weyerman’s testimony that he never improved after the September 17 injury 

and Lane’s testimony that even though Weyerman returned 

to work as a stagehand after September 17, he continued to 

complain about back pain and continued to only be able to 

complete tasks that were considered light duty. Lane testified 

that Weyerman told him that he needed to work, despite his 

back pain, due to financial reasons and that Local 42 accommodated Weyerman’s request.

There was conflicting evidence presented which suggested 

that Weyerman had fully recovered from the September 17, 

2015, injury. This evidence included medical records from his 

treating physician, which indicated that Weyerman reported 

that about 1 week after the September 17 injury, his symptoms were improving, and that 2 weeks after the injury, his 

symptoms had completely resolved and he was completing his regular duties at work. As a result of Weyerman’s 

reports, the treating physician believed that Weyerman had 

reached MMI by October 2. The treating physician released 

Weyerman to return to work. In addition, in medical records 

from a health clinic where Weyerman was seen after experiencing increased back pain on October 9, it is indicated 

that Weyerman reported that he injured his back 7 days 

prior to his appointment and that he was “not sure” how he 

injured himself.

In the award, the compensation court specifically found that 

Weyerman’s testimony regarding the continuing pain caused 
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Cite as 26 Neb. App. 692

by the September 17, 2015, injury was credible. The court 

indicated that it did not believe that Weyerman was fully 

healed by October 2 and ready to return to work. As we stated 

above, as the trier of fact, the compensation court is the sole 

judge of the credibility of the witnesses and the weight to be 

given their testimony. Swanson v. Park Place Automotive, 267 

Neb. 133, 672 N.W.2d 405 (2003).

[9] We also note that Donovan provided multiple opinions 

regarding whether the October 9, 2015, injury was a recurrence of the September 17 injury or a new injury. However, 

the compensation court ultimately adopted “Donovan’s medical 

opinion that the accident of September 17, 2015, was the cause 

of [Weyerman’s] complaints and the Court finds anything after 

that date was recurrent to September 17, 2015.” Resolving 

conflicts within a health care provider’s opinion rests with the 

compensation court, as the trier of fact. Damme v. Pike Enters., 

289 Neb. 620, 856 N.W.2d 422 (2014).

Given the compensation court’s determinations about credibility and given that there was competent evidence to support the court’s decision that the October 9, 2015, injury was 

a recurrence of the September 17 injury, we must affirm the 

decision of the compensation court.

Freeman Expositions also asserts that the compensation 

court erred in determining that Weyerman has not yet reached 

MMI and that, as a result, he is entitled to continuing temporary disability payments. Specifically, Freeman Expositions 

argues that there was no medical opinion to support the compensation court’s finding regarding MMI and that the majority 

of the evidence, including Weyerman’s own testimony, supports a determination that Weyerman has reached MMI. Upon 

our review, we conclude that there is sufficient, competent 

evidence in the record to support the compensation court’s 

finding that Weyerman had not reached MMI by the time of 

the hearing.
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[10] Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a workers’ compensation claimant may receive permanent or temporary workers’ compensation benefits for either partial or total 

disability. “Temporary” and “permanent” refer to the duration 

of disability, while “total” and “partial” refer to the degree 

or extent of the diminished employability or loss of earning 

capacity. Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 

707 N.W.2d 232 (2005). Temporary disability ordinarily continues until the claimant is restored so far as the permanent 

character of his or her injuries will permit. Id. Compensation 

for temporary disability ceases as soon as the extent of the 

claimant’s permanent disability is ascertained. Id. In other 

words, temporary disability should be paid only to the time 

when it becomes apparent that the employee will get no better 

or no worse because of the injury. Id.

[11,12] The term “maximum medical improvement” has 

been used to describe the point of transition from temporary 

to permanent disability. See id. Once a worker has reached 

MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been 

determined, an award of permanent disability is appropriate. 

Id. Generally, whether a workers’ compensation claimant has 

reached MMI is a question of fact. Id.

Contrary to Freeman Expositions’ assertions on appeal, there 

is medical evidence to support the compensation court’s finding that Weyerman has not yet reached MMI. The independent 

medical examiner conducted an evaluation of Weyerman in 

June 2017, about 6 months prior to the hearing. After the evaluation, he authored a report which reflected his opinion that 

Weyerman had not yet reached MMI. The independent medical 

examiner believed that there were still treatments available to 

try which may help minimize Weyerman’s pain and improve 

his overall function. Such treatments included referrals to a 

pain management clinic and to a chiropractor. There is nothing 

in our record to indicate that Weyerman was able to try these 

treatments prior to the hearing date.
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We recognize that Donovan provided conflicting medical 

opinions about MMI. Donovan opined that Weyerman had 

reached MMI in June 2016, 1 year prior to Weyerman’s evaluation with the independent medical examiner. Donovan based 

her medical opinion on Weyerman’s failure to improve after 

receiving pain medication, injection therapy, and physical therapy. In addition, Donovan noted that Weyerman was not a good 

candidate for surgery.

[13] However, as we stated above, the compensation court 

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

medical opinions, even when the health care providers do not 

give live testimony. Damme v. Pike Enters., 289 Neb. 620, 856 

N.W.2d 422 (2014). When the record presents nothing more 

than conflicting medical testimony, an appellate court will not 

substitute its judgment for that of the compensation court. Id.

Because the compensation court determined that Weyerman 

had not yet reached MMI, it clearly found the independent 

medical examiner’s medical opinion to be more credible than 

Donovan’s opinion. And, because the compensation court is 

the sole judge of the credibility of medical opinions and there 

was sufficient, competent evidence to support the compensation court’s finding, we cannot find clear error in the court’s 

determination that Weyerman had not reached MMI at the time 

of the hearing.

Future Medical C

Freeman Expositions asserts that the compensation court 

erred in awarding Weyerman future medical expenses. 

Specifically, Freeman Expositions argues that none of the medical providers who examined Weyerman recommended future 

medical care. Upon our review, we conclude that there is sufficient, competent evidence in the record to support the compensation court’s award of future medical expenses.

In the award, the compensation court stated:

The medical evidence from the physicians in this case 

are that [Weyerman] will require future medical and 
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hospital services and that [Freeman Expositions] should 

continue to provide and pay for such future medical and 

hospital services and treatment as may be reasonably 

necessary as a result of the said accident and injury of 

September 17, 2015.

The report authored by the independent medical examiner 

supports the compensation court’s award of future medical 

expenses. He opined that Weyerman had not reached MMI yet 

because there were still treatments available to try which may 

help to improve Weyerman’s pain and overall functioning. In 

addition, he opined that it is “reasonable to anticipate future 

medical care that is related to the work injur[y].” Such medical care was to include medication management through a pain 

clinic and chiropractic care. Essentially, he expressed optimism 

that, with additional medical treatment, Weyerman’s condition 

would improve.

Given the independent medical examiner’s opinion that 

Weyerman’s condition could improve with further medical 

treatment, the compensation court did not err in ordering 

Freeman Expositions to pay for any future medical treatment 

related to Weyerman’s back injury.

CONCLUSION

We affirm the award entered by the compensation court 

which found that Weyerman had not yet reached MMI and 

which ordered Freeman Expositions, as Weyerman’s employer 

on September 17, 2015, to pay to Weyerman temporary total 

disability payments and future medical expenses.

Affirmed