IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

WILLIAMS V. EGS APPLETON

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MICHAEL WILLIAMS, APPELLEE,

V.

EGS APPLETON, APPELLANT.

Filed April 7, 2015. No. A-14-705.

Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge. Affirmed 

in part, and in part reversed.

Timothy E. Clarke, of Baylor, Evnen, Curtis, Grimit & Witt, L.L.P., for appellant.

Joseph C. Dowding and Jeffrey A. Bloom, of Dowding, Dowding, Dowding & Urbom, for 

appellee.

MOORE, Chief Judge, and IRWIN and RIEDMANN, Judges.

MOORE, Chief Judge.

EGS Appleton (EGS) appeals the Workers’ Compensation Court’s award of further 

benefits to Michael Williams. EGS claims the compensation court erred in making a further award 

to Williams because there was insufficient evidence to establish that Williams’ increase in 

incapacity was due solely to his previous workplace injuries. EGS further contends that the 

compensation court erred by awarding future medical benefits and failed to issue a well-reasoned 

opinion. We find that the compensation court clearly erred in finding that Williams’ shoulder 

injury was solely due to his previous workplace injuries and reverse that portion of the award. 

Similarly, because Williams’ shoulder injury was not solely due to a work-related injury, he is not 

entitled to future medical care for that injury. We affirm the remainder of the award.

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FACTUAL BACKGROUND

In 2009, the Workers’ Compensation Court awarded Williams benefits as a result of the 

injuries he suffered from two separate accidents while working for EGS in its Columbus, Nebraska 

plant. Specifically, Williams suffered a lower back injury in 2004 and an injury to his right foot in 

2006. The compensation court concluded Williams suffered a 15 percent permanent loss of earning 

power due to the back injury and a 19 percent permanent loss of earning power from the foot 

injury. However, the court later determined that these two separate injuries could not be combined 

to produce a single loss of earning power. The court awarded Williams 300 weeks of permanent 

partial disability in the amount of $50.92 per week for his back injury, reimbursement of medical 

costs, and future medical care to treat both injuries. Neither party appealed this award.

After he received treatment for his injuries, Williams was able to resume working at EGS. 

When he returned to work, Williams required the use of a cane to walk. Because of this physical 

limitation, Williams was not able to maintain his former position as a set-up operator. To 

accommodate Williams’ limitation, EGS placed Williams in the lab metal department. In this 

position, Williams applied a putty-like substance to holes in parts before they were painted. 

Williams was able to perform the work required in the lab metal department as long as he had help 

from coworkers with lifting the heavier parts. Williams’ position in the lab metal department was 

a full-time position.

In August 2010, Williams’ employment was terminated because EGS moved its Columbus 

plant to Mexico. Thereafter, Williams received unemployment benefits while he attempted to find 

other employment. Williams’ search for subsequent employment has not been successful and he 

has remained unemployed since his termination from EGS. He began receiving Social Security 

disability benefits in February 2011 and was in the process of taking classes with the goal of 

obtaining his GED. Williams struggles with a reading disability which led to him dropping out of 

school after the tenth grade.

On December 12, 2011, Williams filed a petition for modification. Within the petition, 

Williams alleged that he had “suffered a material and substantial increase in his incapacity” due to 

the original injuries. He claimed that he had developed severe depression, increased low back pain, 

and increased right foot pain, all of which were due solely to his original, compensable injuries.

On September 5, 2013, Williams amended his petition for modification to include an 

additional cause of action, seeking additional benefits because of a recent shoulder injury which 

occurred when he slipped and fell on May 19, 2013. He claimed that this fall and injury were solely 

due to his right foot and low back injury. As to both causes of action, Williams sought an award 

of permanent total disability, vocational rehabilitation benefits, payment of outstanding medical 

bills, and future medical care for all three injuries. Williams also sought waiting time penalties and 

reasonable attorney fees.

In its answer, EGS admitted that Williams had been awarded benefits in 2009, but denied 

the remaining allegations. EGS sought to have Williams’ petition for modification dismissed.

On February 11, 2014, the Workers’ Compensation Court held a hearing on Williams’

petition for modification. At this hearing, Williams testified to the increased pain he had 

experienced since the trial in 2009. Williams stated that the pain in both his back and right foot 

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had increased to the point where doing many everyday activities was impossible for him. He rated 

his pain level at a constant 6.75 or 7 on a scale of 1 to 10. Williams also testified to experiencing 

“jolt[s]” of sharp pain which register as 10 out of 10 on the pain scale. This constant pain has 

become draining on Williams and his wife testified to having noticed that he now becomes irritated 

very easily and is much more withdrawn. Nonetheless, Williams conceded during his testimony 

that he had not received any new or different impairment ratings.

Plagued by constant pain, Williams has become less active and has been unable to exercise 

frequently. Consequently, he has gained a substantial amount of weight. Around the time of his 

back injury in 2004, Williams weighed 250 pounds. At the trial in 2009, Williams weighed 282 

pounds. At the recent modification hearing, Williams informed the court that his current weight 

was approximately 357 pounds. Williams acknowledged that his weight likely contributes to his 

back pain, but claimed that his foot pain has affected the way he walks and limited his ability to 

exercise.

To manage his pain, Williams has been taking medications as prescribed by Dr. Richard 

Bose, who is board certified in the subspecialty of pain medicine. Bose has administered a number 

of injections to Williams’ right foot in an effort to control Williams’ pain. In 2010, Bose became 

concerned that Williams had developed hypogonadism as a result of the medications he was taking. 

Later tests revealed that Williams’ testosterone levels were low, so Dr. Bose prescribed Testim for 

testosterone replacement. While on Testim, Williams developed an enlarged breast, or 

gynecomastia. Williams received further treatment for the breast enlargement from Dr. Robert 

Anderson.

Williams further testified that his constant pain has led to depression. In explaining the 

onset of this depression, Williams admitted that losing his job was “devastating” and that the loss 

of his job affected his outlook on life for a period of time. He stated that he did not realize that it 

was going to be “that much of a problem” finding a new job. Williams has attended therapy for 

depression with Dr. Rhonda Somerhiser, a clinical psychologist. Somerhiser has diagnosed 

Williams with a reading disorder, disorder of written expression, and major depressive order, 

single episode moderate.

Finally, Williams described the sequence of events that led to his shoulder injury on May 

19, 2013. He explained that he was in the garage watching his wife plant flowers in the backyard 

when he observed her leave a tool in the yard after she finished. Williams decided to help by 

retrieving the tool. He went through the garage to the side of his house and began to walk down a 

little grassy slope to the backyard. While on the slope, his cane slipped and Williams landed on 

his left shoulder. The next morning Williams went to Urgent Care in Columbus and was eventually 

referred to Dr. Edward Fehringer, an orthopedic surgeon. In June 2013, Fehringer performed 

surgery on Williams to repair a dislocated long head of the biceps tendon and tearing of the 

superior border of the subscapularis and the anterior aspect of the supraspinatus. At the time of the 

hearing, Williams testified that he still had limited use of his shoulder.

On June 13, 2013, Fehringer sent a letter to Williams’ attorney in which he opined as to 

the cause of Williams’ slip and fall and resulting shoulder injury. Fehringer specifically wrote:

More than likely, the slip and fall that resulted in an injury to [Williams’] left 

shoulder, not his right, was contributed to by his prior right foot and low back injury. Due 

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to the need for utilization of a cane and his generalized deconditioning, this certainly could 

have contributed to the fall. The Urgent Care notes from 5-20-13 confirm that this occurred 

while descending a grassy slope. Dr. Lemke’s notes of 5-21-13 suggest a spontaneous 

origin. [Williams] had related the traumatic episode to me of the grassy slope.

EGS submitted evidence which contradicted Williams’ testimony as to his claims of an 

increase in pain as well as the cause of his shoulder injury. Dr. Jim Andrikopoulos, a board certified 

neuropsychologist, testified at the hearing to the results of the independent medical evaluation he 

conducted on Williams in September 2012. During his evaluation of Williams, Andrikopoulos 

performed three types of tests. First, he performed cognitive tests which measured Williams’

attention, concentration, ability to think quickly, language, ability to find words, comprehension, 

spatial abilities, fine motor dexterity, and grip strength. According to Andrikopoulos, Williams 

had a number of borderline defective scores on these cognitive tests. These scores suggested that 

Williams was malingering and had excessive complaints of pain. Second, Andrikopoulos 

conducted personality tests on Williams. These tests also measured malingering. Again, 

Andrikopoulos determined that Williams’ subjective complaints of pain were excessive. Finally, 

Andrikopoulos conducted a patient interview of Williams as the third part of his testing. During 

this interview, Williams answered every question on the brief pain inventory questionnaire 

regarding his level of pain as being 10 out of 10. Andrikopoulos reported that this level of pain 

would signify that Williams was an invalid, something which Andrikopoulos found unbelievable. 

Additionally, Andrikopoulos was concerned that Williams reported his depression began in 2011 

when his injuries occurred in 2010. He found Williams’ account to be unusual because depression 

symptoms should be temporally related to the time of injury. Ultimately, based on his testing, 

Andrikopoulos concluded that Williams was not totally disabled and that Williams’ psychological 

concerns were exaggerated and not related to his work injuries.

EGS also presented a report and two medical questionnaires from Dr. Joel Cotton. Cotton 

conducted an independent neurological examination of Williams on January 18, 2011. Williams 

weighed 318 pounds at the time of that examination. From his examination, Cotton concluded that 

Williams was exaggerating his symptoms of pain and determined that Williams was not totally 

disabled. In 2013, following Williams’ shoulder injury, EGS obtained an additional opinion from 

Cotton. To reach this opinion, Dr. Cotton reviewed his previous examination of Williams and 

Williams’ medical records, including Fehringer’s letter which contained the causation opinion. 

Cotton concluded that there would be “no reason for [Williams] to slip and fall because of either 

the 2004 or 2006 injury”. He further stated that Williams’ obesity and physical deconditioning 

would have been significant factors for his injury.

On June 7, 2014, the compensation court issued an award. The court denied Williams’

requests for additional indemnity benefits for his back and foot injuries because it found no 

material and substantial change in incapacity that was due solely to the workplace accidents. 

Similarly, the court denied additional indemnity benefits for Williams’ depression because it found 

the depression was not solely due to the original injuries.

On the other hand, the court did award indemnity benefits for the shoulder injury Williams 

suffered as a result of his May 19, 2013 slip and fall. In reaching its decision, the court concluded 

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that Williams’ fall was due solely to his original foot injury in 2006. The court reasoned that 

Williams would not have had the cane which slipped if he had not injured his foot. Further, the 

court acknowledged the fact that Williams was obese, but found no evidence which addressed 

what effect the obesity had on Williams’ slip and fall. Williams was awarded temporary total 

benefits of $464.96 per week for the shoulder injury until he reaches maximum medical 

improvement. In addition to awarding Williams indemnity benefits for the shoulder injury, the 

court also ordered EGS to pay Williams’ future medical expenses related to his shoulder injury, 

hypogonadism, gynecomastia, continued foot and back pain, and depression related to the foot and 

back pain.

EGS appeals from the award.

ASSIGNMENTS OF ERROR

Summarized and condensed, EGS asserts that the Workers’ Compensation Court erred by 

(1) concluding that Williams’ May 19, 2013 slip and fall was solely due to Williams’ right foot 

injury; (2) awarding future medical benefits when there was evidence that Williams was 

malingering; and (3) failing to provide a well-reasoned opinion in compliance with Rule 11.

STANDARD OF REVIEW

A judgment, order, or award of the Workers’ Compensation Court may be modified, 

reversed, or set aside only upon the grounds that (1) the compensation court acted without or in 

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

sufficient competent evidence in the record to warrant the making of the order, judgment, or award; 

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

v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014). In determining whether to affirm, 

modify, reverse, or set aside a judgment of the Workers’ Compensation Court, the findings of fact 

of the trial judge will not be disturbed on appeal unless clearly wrong. Id.

In testing the sufficiency of the evidence to support the findings of fact in a workers’

compensation case, every controverted fact must be resolved in favor of the successful party and 

the successful party will have the benefit of every inference that is reasonably deducible from the 

evidence. Id.

ANALYSIS

Award of Benefits for Williams’ 2013 Shoulder Injury.

Neb. Rev. Stat. § 48-141 (Reissue 2010) provides that a party may apply for a modified 

award “on the ground of increase or decrease of incapacity due solely to the injury.” In order to 

obtain a modification of an award, an applicant must prove, by a preponderance of evidence, that 

the increase or decrease in incapacity was due solely to the injury resulting from the original 

accident. Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013). The applicant must prove 

there exists a material and substantial change for the better or worse in the condition--a change in 

circumstances that justifies a modification, distinct and different from the condition for which the 

adjudication has been previously made. Id. There is no requirement that an employee reach MMI 

prior to modification of the award. Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488, 825 

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N.W.2d 820 (2013). A finding that an applicant’s incapacity has increased under the terms of 

§ 48-141 is a finding of fact. See Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 

(1998); Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d. 597 (1991).

In the award, the Workers’ Compensation Court determined that Williams’ fall and 

shoulder injury were solely due to his right foot injury in 2006. In finding in Williams’ favor, the 

court relied upon Hohnstein v. W.C. Frank, supra. In Hohnstein, the worker was determined to 

have suffered compensable knee injuries from an accident that occurred on May 10, 1983, as well 

as a subsequent fall in 1986 that directly related to the 1983 injury. In February 1989, the worker 

was awarded permanent partial disability for her injuries. On June 21, 1989, the worker suffered 

additional injury when her right knee “‘gave out’” while she was walking in a parking lot, causing 

her to fall. Id. at 978, 468 N.W.2d at 601. The worker filed an application for additional benefits 

under § 48-141 on the grounds of increased incapacity.

At trial, the worker testified that she had not suffered any injury or accident that affected 

her right knee between the original award and the June 21, 1989, fall. The worker’s doctor also 

testified that he was not aware of any new injuries after the entry of the award in February 1989 

that would have caused the problems the worker later experienced. The doctor specifically stated 

that “one would assume [the worker’s knee problems] were causally related” to the 1983 accident. 

Id. at 983, 468 N.W.2d at 604. Additional evidence presented at trial demonstrated that the 

worker’s knee problems were complicated by morbid obesity. The compensation court awarded 

the worker additional benefits, and the employer appealed.

The Nebraska Supreme Court affirmed the compensation court’s award of further benefits. 

In its opinion, the court stated that the question it was required to consider was “whether [the 

worker’s] medical expert evidence sufficiently demonstrated the causal connection between the 

1983 accident . . . and her increased incapacity suffered after February 1, 1989.” Id. at 981-82, 468 

N.W.2d at 603. The court then reaffirmed the standard that expert medical testimony must be based 

on a reasonable degree of medical certainty or a reasonable probability. However, the court stated 

that a medical expert’s testimony does not need to be “couched in the magic words ‘reasonable 

degree of medical certainty or a reasonable probability’”. Id. at 982, 468 N.W.2d at 603. The court 

went on to explain,

“In the area of certain disabilities it is impossible for a reputable doctor to testify 

with absolute certainty that one cause and one cause alone is the reason for the disability. 

Medical diagnosis is not that exact a science. Even though in most instances a certain result 

may follow, to be accurate the medical expert hedges by the use of the words ‘probably 

due’.”

237 Neb. at 982, 468 N.W.2d at 603. In concluding this portion of its analysis, the court announced, 

“In the final analysis, for medical testimony to be the basis for an award, it must be sufficiently 

definite and certain that a conclusion can be drawn that there was a causal connection between the 

accident and the disability”. Id. The court held that the worker’s medical expert evidence was 

sufficiently definite and certain that a conclusion could be drawn between the 1983 accident and 

the knee problems the worker experienced at the time of the modification action.

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In addressing the worker’s obesity, the Nebraska Supreme Court indicated that it was 

“beyond the ken of laypersons” to discern what effect the obesity had on the internal workings of 

the worker’s knee. Id. at 981, 468 N.W.2d at 603. The court stated that the cause of the worker’s 

knee problems after the entry of the original award as those problems related to the accident in 

1983 presented a scientific question upon which it was necessary to obtain medical expert 

evidence.

The parties disagree on the applicability of Hohnstein to the present matter. EGS points out 

that the employer in Hohnstein failed to introduce any of its own medical evidence to contradict 

the worker’s medical evidence. EGS further argues that it presented sufficient evidence to establish 

that Williams’ shoulder injury was not causally related to his foot injury. Conversely, Williams 

contends that this case is analogous to Hohnstein because the obesity in both cases preceded the 

falls. Additionally, Williams likens his fall to that in Hohnstein; both parties were walking when 

they suddenly fell and neither fall was related to an environmental condition.

As an initial matter, we agree with EGS that the present case differs in certain respects 

from Hohnstein. From our reading of Hohnstein, it does not appear the employer in that case 

adduced any medical evidence as to the cause of the worker’s fall or the effect of the worker’s 

obesity on the fall. In this case, however, EGS presented an opinion from Cotton in the form of 

answers to a medical questionnaire. Cotton attributed Williams’ fall and resulting shoulder injury 

to Williams walking down a grassy slope as well as his preexisting obesity and physical 

deconditioning. He agreed that Williams’ pain may have played a minor role in the slip and fall 

incident. The existence of the employer’s medical evidence in this case certainly causes the 

question of causation to differ from the causation question in Hohnstein.

Additionally, Fehringer’s causation opinion in this case, upon which the compensation 

court relied, differs from the doctor’s causation opinion in Hohnstein. To recall, in Hohnstein, the 

worker’s doctor testified that he was not aware of the worker suffering any injuries to her knee 

after the 1989 award. The doctor further testified that it could be assumed that the worker’s knee 

problems were causally related to the 1983 accident. In this case, Fehringer’s opinion does not go 

so far as to say that Williams’ shoulder injury was causally related to his earlier injuries. He stated 

in his letter that “[m]ore than likely, the slip and fall that resulted in an injury to [Williams’] left 

shoulder . . . was contributed to by his prior right foot and low back injury” (emphasis added). 

EGS asserts that Fehringer’s opinion is not sufficient to support the award because it mentions 

other concurrent causes for the fall and shoulder injury, namely, Williams’ “generalized 

deconditioning”.

Williams argues that when the entire record is reviewed there is sufficient evidence to 

establish that his shoulder injury was solely the result of his right foot injury in 2006. He asserts 

that his testimony regarding the 2013 fall proved that his cane suddenly slipped, causing him to 

lose his balance and fall. Williams further states that he would not have had this cane if he had not 

injured his foot in 2006. He cites a physical therapist’s medical report from 2010 in which the 

therapist concluded that Williams would need to use a straight cane for walking to help him with 

weight bearing. The therapist anticipated that Williams would need this cane for an indefinite 

period of time.

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Addressing the question of his obesity, Williams argues that Cotton’s opinion from the 

medical questionnaire should not be accepted. Williams notes that Cotton last physically observed 

him in 2011. Therefore, Williams contends that Cotton would not be able to know how he walks, 

how his weight affects his ability to walk, or how he uses the cane. Williams also asserts that 

Cotton’s report did not specifically state whether the obesity had an effect on the cane slipping.

In determining whether the evidence was sufficient to establish that Williams’ fall and 

resulting shoulder injury was caused by his prior foot injury, our decision in Hubbart v. Hormel 

Foods Corp., 15 Neb. App. 129, 723 N.W.2d 350 (2006), is instructive. In Hubbart, we reviewed 

a modification award in which the compensation court found that a worker’s depression was 

compensable because her previous injuries were a “significant, contributing cause” of the 

depression she later developed. Id. at 138, 723 N.W.2d at 356. In reaching that conclusion, the trial 

court relied upon medical reports which indicated that the worker’s depression was due in part to 

her injuries, but was also the result of other situational factors including unemployment, drug use, 

and a recent criminal arrest and conviction. We reversed the award, finding that the compensation 

court utilized the incorrect standard for modification of an award; that being that the previous 

injuries were a significant, contributing cause of the later depression. In reversing the award and 

remanding for further proceedings, we reaffirmed that an applicant for a modification of an award 

must prove that the increase in incapacity was due solely to the injury resulting from the original 

accident.

In this case, the compensation court clearly stated that Williams’ shoulder injury resulted 

solely from his right foot injury. Thus, unlike the award in Hubbart, the court employed the correct 

standard in reaching its conclusion. However, similar to Hubbart, the court made its determination 

by relying upon a medical opinion which concluded that Williams’ previous work injuries only 

“contributed to” his shoulder injury. We recognize there is no requirement that certain magic words 

be included in a medical opinion; nonetheless, a medical opinion which only states that previous 

injuries more than likely contributed to an increase in incapacity cannot be permitted under a 

standard which requires the increase or decrease in incapacity to be solely due to the injury 

resulting from the original accident. Therefore, because Williams cannot establish that his increase 

in incapacity was solely due to his original injuries, the compensation court’s award must be 

reversed.

Future Medical Benefits.

EGS also contends that the compensation court erred when it awarded Williams future 

medical benefits. The argument related to this assignment of error reveals that EGS’ sole 

contention is that Andrikopoulos’ opinion is more credible than Williams’ testimony as to 

Williams’ chronic pain and depression.

This argument requires little discussion to resolve. As the trier of fact, the compensation 

court is the sole judge of the credibility of witnesses and the weight to be given to their testimony. 

Kim v. Gen-X Clothing, Inc., 287 Neb. 927, 845 N.W.2d 265 (2014). EGS concedes as much; 

however, EGS argues that there was not sufficient evidence in the record for the court to find 

Williams’ testimony to be credible. We disagree. The compensation court heard live testimony 

from both Williams and Andrikopoulos and determined that Williams should be awarded future 

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medical benefits. In making this finding, the court clearly found Williams’ testimony as to his pain 

to be more credible than Andrikopoulos’ testimony and written report. This assignment of error is 

without merit.

However, we do take a moment to clarify that Williams is not entitled to future medical 

benefits for his shoulder injury. Because we have found that Williams cannot establish that his 

shoulder injury was solely due to his previous work-related injuries, it follows that he cannot 

receive future medical benefits for that injury. See Foote v. O’Neill Packing, 262 Neb. 467, 632 

N.W.2d 313 (2001) (before an order for future medical benefits may be entered, there should be a 

stipulation of the parties or evidence in the record to support a determination that future medical 

treatment will be reasonably necessary to relieve the injured worker from the effects of the 

work-related injury or occupational disease).

Well-Reasoned Opinion under Rule 11.

Finally, EGS asserts that the compensation court failed to comply with rule 11(A) because 

it did not provide a well-reasoned opinion. EGS asserts that the compensation court was required 

to discuss Andrikopoulos’ testimony and written independent medical evaluation in its award but 

failed to do so.

Rule 11(A) requires the Workers’ Compensation Court to write decisions that “provide the 

basis for a meaningful appellate review.” Jurgens v. Irwin Indus. Tool Co., 20 Neb. App. 488, 825 

N.W.2d 820 (2013). In particular, the second sentence of rule 11(A) specifies that the workers’

compensation judge is required to “specify the evidence upon which the judge relies.” See Jurgens 

v. Irwin Indus. Tool Co., supra.

The compensation court specifically detailed the evidence it considered as to each of 

Williams’ conditions before it determined that Williams’ was entitled to future medical care. 

Although the court did not separately address Andrikopoulos’ opinion, rule 11(A) does not require 

a workers’ compensation judge to discuss the opinions or evidence upon which he or she does not 

rely. The award in this case provides a basis for meaningful appellate review and was, therefore, 

in compliance with rule 11(A). This assigned error is without merit.

CONCLUSION

Williams failed to establish that his shoulder injury was solely due to his prior workplace 

injuries. For that reason, we reverse the compensation court’s award of benefits and future medical 

expenses for that injury. However, we find the remainder of the court’s award was supported by 

competent evidence and affirm those portions of the award.

AFFIRMED IN PART, AND IN PART REVERSED.

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