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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.

Cite as 291 Neb. 415

Bryant Gardner, appellee, v. International Paper

Destruction & Recycling, appellant.

___ N.W.2d ___

Filed July 17, 2015. No. S-14-815.

1. Workers’ Compensation: Appeal and Error. 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.

2. ____: ____. On appellate review, the factual findings made by the trial 

judge of the Workers’ Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

3. ____: ____. In workers’ compensation cases, an appellate court determines questions of law.

4. Workers’ Compensation. The Nebraska Workers’ Compensation Act 

provides that when an employee suffers personal injury caused by accident or occupational disease, arising out of and in the course of his or 

her employment, such employee shall receive compensation from his or 

her employer if the employee was not willfully negligent at the time of 

receiving such injury.

5. Workers’ Compensation: Proof. In a proceeding to modify a prior 

award, the employer has the burden of establishing a decrease of incapacity and the employee has the burden of establishing an increase.

6. 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” 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.
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7. Workers’ Compensation. Compensation for temporary disability 

ceases as soon as the extent of the claimant’s permanent disability is 

ascertained.

8. ____. Temporary disability benefits 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.

9. ____. When an injured employee has reached maximum medical improvement, any remaining disability is, as a matter of law, 

permanent.

10. ____. Temporary disability benefits are discontinued at the point of 

maximum medical improvement, because a disability cannot be both 

temporary and permanent at the same time.

11. Actions: Appeal and Error. The law-of-the-case doctrine reflects the 

principle that an issue litigated and decided in one stage of a case 

should not be relitigated at a later stage.

12. Workers’ Compensation: Expert Witnesses: Physicians and 

Surgeons. The Workers’ Compensation Court is the sole judge of the 

credibility and weight to be given medical evidence, even when the 

health care professionals do not give live testimony.

13. Workers’ Compensation. Causation of an injury or disability presents 

an issue of fact.

14. ____. Whether a plaintiff in a workers’ compensation case is totally and 

permanently disabled is a question of fact.

15. Judgments: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact, an appellate court considers the 

evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the 

appellate court gives the successful party the benefit of every inference 

reasonably deducible from the evidence.

16. Workers’ Compensation: Proof. A claimant is entitled to an award 

under the Nebraska Workers’ Compensation Act for a work-related 

injury and disability if the claimant shows, by a preponderance of the 

evidence, that the claimant sustained an injury and disability proximately caused by an accident which arose out of and in the course of 

the claimant’s employment, even though a preexisting disability or condition has combined with the present work-related injury to produce the 

disability for which the claimant seeks an award.

17. Workers’ Compensation. A workers’ compensation claimant can 

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

of employment, combines with a preexisting condition to produce 

a disability.

18. Workers’ Compensation: Words and Phrases. Total disability does 

not mean a state of absolute helplessness. It means that because of an 
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injury (1) a worker cannot earn wages in the same kind of work, or 

work of a similar nature, that he or she was trained for or accustomed 

to perform or (2) the worker cannot earn wages for work for any other 

kind of work which a person of his or her mentality and attainments 

could do.

Appeal from the Workers’ Compensation Court: James R. 

Coe, Judge. Affirmed.

Timothy E. Clarke, of Baylor, Evnen, Curtiss, Grimit & 

Witt, L.L.P., for appellant.

Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch 

Law, P.C., L.L.O., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Miller-Lerman, J.

NATURE OF CASE

Bryant Gardner, the appellee, suffered an accident arising out of and in the course of his employment on April 16, 

2009, while he was employed by the appellant, International 

Paper Destruction & Recycling (the employer). The Nebraska 

Workers’ Compensation Court filed an “Award” on September 

23, 2010, awarding temporary benefits to Gardner. The 

employer filed a petition to modify the award on May 6, 

2013, alleging that Gardner had reached maximum medical 

improvement and had experienced a decrease in incapacity. 

In an order filed May 24, the compensation court found that 

Gardner had reached maximum medical improvement. After 

a trial on the employer’s petition to modify, the compensation 

court filed a “Further Award” on August 8, 2014, in which the 

court applied the odd-lot doctrine and determined that, given 

Gardner’s preexisting mental and cognitive deficits, and based 

upon his physical injuries that arose from the accident, Gardner 

was permanently and totally disabled. The employer appeals. 

We affirm.
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.

Cite as 291 Neb. 415

STATEMENT OF FACTS

On April 16, 2009, while employed by the employer as a 

truckdriver, Gardner was operating a semitrailer truck when he 

was involved in an accident in Omaha, Nebraska. Due to the 

accident, Gardner was briefly rendered unconscious and suffered injuries to his head, neck, and lower back. Gardner filed 

a petition in the Workers’ Compensation Court on August 27, 

seeking compensation for his injuries. The employer filed its 

answer on September 3, generally denying the allegations set 

forth in Gardner’s petition and raising an affirmative defense of 

willful negligence.

After a trial was held on June 14, 2010, the compensation 

court filed its “Award” on September 23. The court stated that 

on April 16, 2009, Gardner was operating a semitrailer truck 

and that as he was exiting eastbound L Street to merge onto 

northbound Interstate 680, he failed to negotiate the circular 

entrance ramp and the semitrailer truck rolled. The court found 

that Gardner sustained a “‘closed head injury’” in the accident of April 16 and that Gardner was unconscious for a brief 

period of time after the accident.

Gardner saw Dr. Kip Burkman on April 23, 2009. Dr. 

Burkman noted that Gardner’s symptoms included headache, 

depression, anxiety, blurred vision, dizziness, neck pain, numbness and tingling, confusion, poor balance, and memory loss. 

The compensation court determined that Gardner’s medical 

history showed that prior to the accident, Gardner had experienced all of the symptoms that Dr. Burkman listed in his 

report of April 23. The court further determined, based on 

medical reports, a CT scan of Gardner’s head, and an MRI 

of Gardner’s brain, that Gardner did not suffer any physical 

injury to his brain.

Gardner was seen by a neurologist, Dr. Scott Diesing. In 

a report dated November 5, 2009, Dr. Diesing noted that 

an MRI of Gardner’s brain on May 6 was normal and that 

Gardner’s neurological examination demonstrated a shortterm recall impairment and mild deficits on a short test of 

mental status. Dr. Diesing noted that Gardner’s complaints 
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were mostly consistent with the musculoskeletal injury as 

previously diagnosed. Gardner underwent an MRI examination of the cervical spine and the lumbar spine that showed 

a disk protrusion at the C4-5 and C5-6 levels and, additionally, a slight bulge of the lumbar spine at the S1-L5 level. Dr. 

Diesing recommended continued symptomatic care.

Gardner continued to complain of neck and back pain, and 

on November 12, 2009, Dr. Burkman referred him to another 

physician for a cervical epidural injection, which was performed on November 30. In a report of January 11, 2010, Dr. 

Diesing noted that Gardner’s problems with headaches, nausea, 

balance, cognitive deficits, and neck pain were improving until 

the epidural injection on November 30, 2009.

On February 11, 2010, Gardner underwent an MRI examination which, according to Dr. Diesing’s report dated April 

16, showed that Gardner had a cerebrospinal fluid leak (CSF). 

The CSF was caused by a leak in the spinal cord’s protective sac in which spinal fluid leaked out of a hole in the 

dura. Gardner underwent a “blood patch” to correct the CSF, 

as prescribed by Drs. Burkman and Diesing, and Gardner’s 

symptoms improved thereafter. In its award, the compensation 

court determined that “the evidence preponderates in a finding 

that the cause of the CSF was due to the epidural injection on 

November 30, 2009.”

Because of Gardner’s complaints of cervical and low-back 

pain, he was referred to Dr. George Greene, a neurosurgeon, 

and Dr. Eric Phillips, an orthopedic surgeon. In a report dated 

May 21, 2009, Dr. Phillips stated that Gardner was not a surgical candidate and suggested Gardner continue pain management with Dr. Burkman. In an October 8 report, Dr. Greene 

likewise did not believe that Gardner was a surgical candidate 

for neck or back pain.

With respect to Gardner’s cognitive injury, Gardner was 

examined by Dr. Jeffery Snell, a neuropsychologist; Dr. Ty 

Callahan, a psychologist; Dr. Jennifer Linder, a psychologist; Dr. John Donaldson, a psychiatrist; and Dr. Ian Crabb, a 

neurologist. In a report dated November 10, 2009, Dr. Linder 
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stated that Gardner had global impairment in memory and 

severe cognitive deficits related to memory impairment and 

was incapable of managing finances and daily tasks.

In a report dated January 27, 2010, Dr. Callahan stated that 

Gardner suffered from depression and major anxiety disorder 

and that his emotional state leads to magnification of symptoms sufficient to interfere with his recovery. Dr. Callahan 

noted that Gardner had suffered a concussion as a result of 

the April 16, 2009, accident, but that he did not believe any 

of Gardner’s current symptoms were related to any injury 

to his brain. Dr. Callahan stated that Gardner had reached 

maximum medical improvement with respect to his cognitive 

defects within 2 to 3 weeks, or at the most 2 months, after the 

accident. Dr. Callahan noted Gardner’s prior symptoms and 

stated that he had evidence of malingering based on Gardner’s 

test results. Dr. Callahan stated he believed that the cause of 

Gardner’s cognitive deficits, to the extent they existed, was due 

to Gardner’s previously existing narcotic drug use, marijuana 

use, and sleep apnea.

Dr. Snell also examined Gardner. In his report and deposition, Dr. Snell stated that based on a CT scan and the “Glasgow 

coma score,” he would not expect any cognitive impairments. 

Dr. Snell performed various tests on Gardner and suggested 

that based on Gardner’s low test scores, Gardner was not putting forth his full effort on the tests.

Dr. Donaldson examined Gardner, and in a report dated July 

2, 2009, Dr. Donaldson stated that there was no objective evidence of physical damage to Gardner’s brain. Dr. Donaldson 

noted that Gardner had some memory loss, and Dr. Donaldson 

was concerned the cause of the memory loss was Gardner’s 

medications and his sleep apnea. In a July 8 report, Dr. 

Donaldson stated that Gardner’s symptoms were more typical 

of a concussion because, based on the MRI, there was no sign 

of brain laceration or significant hemorrhage.

In a report dated October 13, 2009, Dr. Crabb stated that 

several CT scans showed no traumatic brain injury. Dr. Crabb 

determined that Gardner had suffered a strained cervical spine 
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.

Cite as 291 Neb. 415

and a low-back strain, that no surgery was indicated, and that 

Gardner was at maximum medical improvement with no permanent impairment or restrictions. The compensation court’s 

original award mentioned that Dr. Crabb stated that the epidural injection on November 30 was more likely than not the 

cause of the CSF.

In a report dated June 1, 2010, Dr. Burkman stated that from 

a brain injury standpoint, Gardner was at maximum medical 

improvement, but he was still doing active physical therapy, 

and that therefore, Gardner was not at maximum medical 

improvement from a physical therapy standpoint.

Based on the evidence, the compensation court set forth its 

findings in its September 23, 2010, award and stated that

the evidence preponderates in a finding that [Gardner] 

was injured in the course and scope of his employment 

on April 16, 2009, when he was involved in a motor vehicle accident. The evidence preponderates in a finding that 

[Gardner] suffered a concussion in that accident and as a 

result had some temporary cognitive deficits that resolved 

and resulted in no permanent impairment from a cognitive and depression standpoint as a result of the accident 

and injury of April 16, 2009. The evidence preponderates 

in a finding that [Gardner’s] preexisting conditions were 

the same from a cognitive standpoint prior to the accident as subsequent to the accident and the exacerbation 

of the symptoms from the accident of April 16, 2009, 

was a temporary condition. The evidence preponderates 

in a finding that the cause of the cognitive deficits was 

due to the preexisting depression and anxiety from which 

[Gardner] suffered, the sleep apnea from which [Gardner] 

suffered and the narcotic and other medications [Gardner] 

was prescribed prior to the accident.

The Court finds that the evidence preponderates in a 

finding that [Gardner] sustained an injury to the cervical and lumbar spine and that as a result [Gardner] is 

still undergoing physical therapy rehabilitation and is 

not at maximum medical improvement from the injuries 
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.

Cite as 291 Neb. 415

to the cervical and lumbar spine. [Gardner] is at maximum medical improvement regarding any concussion 

or cognitive aggravation he sustained as a result of the 

accident of April 16, 2009.

The Court finds that [Gardner] is not at maximum 

medical improvement, likewise, due to the continuing 

treatment for the CSF as stated by Dr. Diesing in his 

report of May 26, 2010.

The compensation court then rejected the employer’s affirmative defense of willful negligence.

The compensation court noted the parties stipulated that 

Gardner’s average weekly wage for purposes of temporary 

total disability was $605.51 per week and that Gardner’s average weekly wage for purposes of permanent impairment was 

$641.60 per week. The court ordered:

The [employer] shall pay to and on behalf of [Gardner] 

benefits of $403.67 per week from and including April 

16, 2009, to and including July 6, 2009, and thereafter 

and in addition thereto benefits of $282.57 for a 70 percent temporary partial loss of earning capacity from and 

including July 7, 2009, to and including November 30, 

2009, and thereafter and in addition thereto the sum of 

$403.67 per week from and including December 1, 2009, 

to and including the date of this hearing on June 14, 2010, 

and a like amount each week for so long as [Gardner] 

remains temporarily totally disabled.

The court further ordered that the employer pay certain outstanding medical expenses, that the employer is entitled to a 

credit for previous payment of medical expenses and indemnity benefits, and that the employer pay certain future medical expenses.

On October 7, 2010, the employer filed an “Application 

for Review” of the award with the review panel, claiming 

17 errors made by the compensation court. Gardner did not 

appeal or cross-appeal the award. On November 10, 2011, the 

review panel filed its order in which it affirmed the award of 

the compensation court. The review panel stated that “there is 
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Cite as 291 Neb. 415

ample evidence in the record to support the Court’s findings,” 

and it determined that the employer’s assigned errors were 

without merit.

On January 26, 2012, Dr. Phillips performed an MRI examination on Gardner’s spine and he compared that MRI to the 

original MRI of May 6, 2009. Based on the January 2012 MRI, 

Dr. Phillips recommended surgery. On July 27, Gardner underwent surgery performed by Dr. Phillips for an anterior cervical 

diskectomy and a three-level fusion from the C-4 level to the 

C-7 level.

On May 6, 2013, the employer filed its petition to modify 

the award, alleging that Gardner had reached maximum medical improvement and had experienced a decrease in incapacity. In his answer filed May 21, Gardner generally denied 

the employer’s petition to modify. Gardner stated that he had 

not reached maximum medical improvement, had not experienced a decrease in incapacity, “and may have experienced an 

increase in incapacity due solely to his original injury.”

On May 13, 2013, the employer filed a motion to compel 

requesting the court to order Gardner to appear for a functional capacity evaluation at the location recommended by 

Dr. Phillips. On May 24, the compensation court filed an 

order recognizing that there was a dispute between the parties 

regarding who should provide a functional capacity evaluation 

to Gardner “now that [Gardner] has reached maximum medical 

improvement.” The court ordered that Gardner should receive 

the functional capacity evaluation pursuant to Dr. Phillips’ 

recommendation.

Gardner completed a functional capacity evaluation on 

July 15, 2013. The functional capacity evaluation found that 

Gardner could work at a “medium physical demand” level 

with lifting restrictions of 30 pounds shoulder level, 25 pounds 

overhead, and a two-hand carry of 40 pounds.

On September 11, 2013, Dr. Phillips responded to a letter 

from the employer’s counsel in which Dr. Phillips stated that 

Gardner had reached maximum medical improvement with 

regard to his work-related injury.
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.

Cite as 291 Neb. 415

On September 25, 2013, the compensation court filed an 

order appointing vocational rehabilitation counselor, Patricia 

Reilly, to perform an evaluation for vocation rehabilitation 

services for Gardner in addition to performing a loss of earning capacity evaluation. On October 18, the employer filed 

a motion in limine to exclude an October 10 report of Dr. 

Jay Rich, a psychiatrist, from being considered in Gardner’s 

loss of earning capacity evaluation. In the October 10 report, 

Dr. Rich was asked, “Do you believe the truck accident was 

a (not the one and only) proximate cause of . . . Gardner’s 

depression and post-traumatic stress disorder?” (Emphasis 

in original.) Dr. Rich answered, “[Gardner] had no history 

of depression or post traumatic stress prior to the accident.” 

In its motion in limine, the employer argued that because 

the compensation court had determined in its initial award 

that Gardner had reached maximum medical improvement 

with respect to his mental health, any ongoing problems are 

related to his preexisting condition and not related to the compensable injury. The employer thus argued Dr. Rich’s report 

should not be considered in Gardner’s loss of earning capacity evaluation.

In an order filed October 31, 2013, the compensation court 

granted Gardner leave to provide a further report from Dr. Rich 

to the vocational rehabilitation counselor, Reilly, “concerning 

any further opinions that Dr. Rich may have upon [Gardner’s] 

mental condition and/or restrictions, if any.” The court also 

granted leave to the employer to take further discovery depositions and to rebut the opinion of Dr. Rich with an updated 

report of the psychiatrist of the employer’s choice. The order 

also stated the parties stipulated that the employer

shall pay to [Gardner] indemnity at the rate of a 45 

percent loss of earning capacity to the time of final 

resolution and that the finding of the 45 percent loss 

of earning capacity shall be considered an agreement 

by the parties with approval by the Nebraska Workers’ 

Compensation Court.
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GARDNER v. INTERNATIONAL PAPER DESTR. & RECYCL.

Cite as 291 Neb. 415

Dr. Rich treated Gardner four times between August 29 and 

October 30, 2013. In his August 29 report, Dr. Rich stated that 

Gardner was depressed and suffered from posttraumatic stress 

disorder and he noted that Gardner had “no psychiatric treatment history.” In a December 16 report addressed to Gardner’s 

attorney, Dr. Rich stated that “Gardner’s pre-existing cognitive 

defects and depression were aggravated by the rollover.” He 

further stated that he believed Gardner’s “defects are permanent” and that “Gardner’s current symptoms restrict him from 

return[ing] to work at this time.”

In a “Clarification Report” dated February 13, 2014, Dr. 

Rich stated that (1) Gardner suffered preexisting mental and 

cognitive deficits, including depression, anxiety, sleep apnea, 

and effects of narcotics and other medications; (2) the April 

16, 2009, accident caused only a temporary exacerbation of 

the cognitive preexisting conditions; (3) following the temporary exacerbation, Gardner’s cognitive state returned to the 

preexisting conditions he was suffering prior to the accident; 

(4) the preexisting cognitive conditions, along with the pain 

caused by the accident, limited Gardner’s ability to return to 

full-time work; (5) Gardner’s preexisting cognitive conditions 

were dynamic and naturally progressive mental states that were 

left untreated and that they “naturally progressed and expectedly intensified”; and (6) Gardner’s preexisting cognitive conditions were permanent and “were naturally progressing due 

to . . . Gardner’s lack of treatment — not due to the April 16, 

2009 rollover.”

In Reilly’s first loss of earning capacity analysis dated 

October 3, 2013, Reilly determined that Gardner sustained 

a loss of earning power of approximately 45 percent. The 

scope of Reilly’s first analysis included only Gardner’s physical restrictions; it did not include his preexisting cognitive deficits.

In Reilly’s addendum to the loss of earning power analysis 

dated January 10, 2014, Reilly considered Gardner’s preexisting cognitive deficits by relying upon the reports of Dr. Rich. 

Reilly stated that “[w]ith consideration given to the opinions 
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of Dr. Jay Rich . . . Gardner would be considered to fit the 

definition of ‘odd-lot doctrine’ and therefore would not be able 

to maintain regular full-time employment and would be considered permanently and totally disabled.”

In Reilly’s second addendum to the loss of earning power 

analysis dated April 25, 2014, Reilly provided two alternative 

loss of earning capacity opinions that were based on two hypothetical scenarios presented by the parties’ attorneys. Based 

on the scenario set forth by the employer, which posited that 

Gardner had no neurocognitive or psychological impairment, 

Reilly determined that “Gardner would not sustain a loss of 

earning power as a result of the rollover accident.” In contrast, 

based on the scenario set forth by Gardner, which posited 

that Gardner had preexisting cognitive and mental conditions 

that were progressing due to lack of treatment, Reilly determined that because of the combined effect of the preexisting 

cognitive issues along with the orthopedic injury, “Gardner 

would be considered to fit the definition of ‘odd-lot doctrine’ 

and therefore would not be able to maintain regular fulltime employment and would be considered permanently and 

totally disabled.”

On April 28, 2014, a trial was held on the employer’s petition to modify. At the trial, the employer objected to, inter alia, 

Gardner’s offer of the report of Dr. Rich, described above, and 

a separate report of Dr. Jan Golnick. In a report dated March 

25, 2013, Dr. Golnick stated that Gardner suffered chronic 

headaches following the April 16, 2009, accident and that 

since the accident, Gardner has experienced dizziness, cognitive and memory problems, and regular episodes of confusion. 

Dr. Golnick reported that Gardner had experienced depression and moderate to severe anxiety. The only past medical 

history reported by Dr. Golnick was as follows: sinus and 

nasal surgery in 2005; anterior cervical fusion, C4-C7 level, 

by Dr. Phillips on July 12, 2012; hypertension; and sleep 

apnea. Dr. Golnick stated he would like to schedule a followup 

appointment with Gardner due to the complexity of his case 

and “due to the fact that I [Dr. Golnick] need to learn more 
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about him from his medical records before making more definite recommendations.”

In objecting to the reports at trial, the employer’s attorney 

argued that the reports of Drs. Rich and Golnick

are all dealing with issues related to depression, the traumatic brain injury, the effect of that. And we believe that 

that information is not relevant to the proceeding today 

because the Court has already issued a decision regarding the depression and the traumatic brain injury and said 

that that healed without impairment or restriction. And 

this is essentially an attempt to modify, when that’s not 

appropriate, because the law of the case says that that’s 

already been decided. It’s essentially a relevance objection, Your Honor.

In response, Gardner’s attorney asserted that

when you do a loss of earning capacity, you do the loss 

of earning capacity with respect to the injury that . . . was 

precipitated as a result of the work injury, and then you 

take the person as whole. What does that person bring to 

the table at the time that she was injured?

Gardner’s attorney further stated that

it is our position, when we’re doing the loss of earning capacity, that the Court must consider, not only the 

injuries that [Gardner] sustained at the time of the work 

injury, but his — what he brought to the table at the time 

that he was injured. What were his preexisting conditions 

that could affect his ability to earn a living?

The court overruled the employer’s objection and received the 

reports of Drs. Rich and Golnick.

On August 8, 2014, the compensation court filed its “Further 

Award” from which this appeal is taken. In sum, the compensation court applied the odd-lot doctrine, which generally 

provides that while a worker is not altogether incapacitated 

for work, the worker is so handicapped that the worker will 

not be employed regularly in any well-known branch of the 

labor market, and the compensation court determined that 

Gardner was permanently and totally disabled. See Schlup v. 
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Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992). 

Specifically, in the further award, the court determined that 

the necessity for the diskectomy and the three-level cervical fusion performed by Dr. Phillips was a result of the April 

16, 2009, accident. Based upon the medical evidence and the 

loss of earning capacity reports from Reilly, the court further 

determined that Gardner was permanently and totally disabled. 

The court recognized that in its initial award, it had stated 

that Gardner’s preexisting cognitive deficits were temporarily aggravated by the accident and that they “resolved to their 

prior state and resulted in no permanent impairment as a result 

of the work related accident of April 16, 2009.” The court further stated:

Having found that [Gardner’s] preexisting emotional 

condition returned to its pre-accident state, [Gardner’s] 

emotional condition prior to the accident did not resolve. 

The Court finds that as a result of the [CSF] and the permanent impairment from the three-level cervical fusion 

with continuing pain combined with [Gardner’s] prior 

emotional and mental state involving learning disability, 

depression, anxiety and cognitive impairment all developed to make [Gardner] permanently and totally disabled 

pursuant to the loss of earning capacity analysis of the 

vocational rehabilitation expert . . . Reilly.

The court also noted that “[s]everal of [Gardner’s] physicians 

have found that [Gardner] will be in need of future medical care 

such as Dr. Rich stated for pain management and [Gardner’s] 

depression, anxiety, and cognitive difficulties.”

In the further award, as modified by an order nunc pro tunc 

filed August 15, 2014, the court ordered that the employer

shall pay to and on behalf of [Gardner] the sums for 

temporary total disability and temporary partial disability for those periods of time and amounts as set forth 

in the Award of September 23, 2010, and the Order of 

October 31, 2013 to and including the date of the filing 

of this Further Order and thereafter in addition thereto 

the [employer] shall pay to and on behalf of [Gardner] 
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the sum of [$427.73] per week for so long as [Gardner] 

remains permanently and totally disabled.

The court further ordered that the employer pay Gardner certain outstanding medical expenses and that the employer is 

entitled to a credit for previous payments of medical expenses 

and indemnity. The court also stated that the employer “should 

continue to provide and pay for such reasonable and necessary 

medical expenses as may be necessary as a result of the accident and injury of April 16, 2009.”

The employer appeals.

ASSIGNMENTS OF ERROR

The employer generally assigns, restated, that the compensation court erred when it found that Gardner was permanently 

and totally disabled and entered the further award accordingly. In particular, the employer contends that because the 

original award found that Gardner’s mental health issues had 

reached maximum medical improvement, no further awards 

or evidence regarding mental health issues were appropriate. 

Thus, the employer claims that the compensation court erred 

when it considered Gardner’s mental and cognitive deficits, 

admitted reports of Drs. Rich and Golnick, and awarded 

future medical care including treatment for Gardner’s mental health.

STANDARDS OF REVIEW

[1] 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. See Neb. Rev. Stat. § 48-185 (Cum. 

Supp. 2014).

[2,3] On appellate review, the factual findings made by 

the trial judge of the Workers’ Compensation Court have the 
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effect of a jury verdict and will not be disturbed unless clearly 

wrong. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 

(2015). In workers’ compensation cases, we determine questions of law. Id.

ANALYSIS

The employer generally claims that the compensation court 

erred when it found that Gardner was permanently and totally 

disabled. The employer asserts that in its original award, the 

compensation court found that Gardner had reached maximum medical improvement with respect to his head and 

mental injuries resulting from the April 16, 2009, accident 

and that this finding was the “law of the case,” thus precluding consideration of subsequent mental health issues in the 

proceedings resulting in the further award. Specifically, the 

employer claims the compensation court erred when it considered Gardner’s preexisting mental health issues and admitted 

medical reports which discussed Gardner’s subsequent mental 

condition. We find no merit to these arguments and determine 

that the compensation court did not err when it found that 

Gardner was permanently and totally disabled.

Applicable Law.

[4] The Nebraska Workers’ Compensation Act provides that 

when an employee suffers personal injury caused by accident 

or occupational disease, arising out of and in the course of his 

or her employment, such employee shall receive compensation 

from his or her employer if the employee was not willfully 

negligent at the time of receiving such injury. Neb. Rev. Stat. 

§ 48-101 (Reissue 2010).

With respect to the modification of awards in workers’ 

compensation cases, Neb. Rev. Stat. § 48-141 (Reissue 2010) 

provides:

All amounts paid by an employer or by an insurance 

company carrying such risk, as the case may be, and 

received by the employee or his or her dependents by 

lump-sum payments pursuant to section 48-139 shall be 

final and not subject to readjustment if the lump-sum 
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settlement is in conformity with the Nebraska Workers’ 

Compensation Act, unless the settlement is procured by 

fraud, but the amount of any agreement or award payable 

periodically may be modified as follows: (1) At any time 

by agreement of the parties with approval of the Nebraska 

Workers’ Compensation Court; or (2) if the parties cannot agree, then at any time after six months from the date 

of the agreement or award, an application may be made 

by either party on the ground of increase or decrease of 

incapacity due solely to the injury . . . .

It is well recognized with respect to modification of awards 

that “[a]t the administrative level, awards can be reopened by 

the compensation board for modification to meet changes in 

claimant’s condition, such as increase, decrease, or termination 

of disability.” 13 Arthur Larson & Lex K. Larson, Larson’s 

Workers’ Compensation Law, ch. 131 at 131-1 (2015). It has 

been further stated:

In all states, some kind of provision is made for 

reopening and modifying awards. This provision is a 

recognition of the obvious fact that, no matter how 

competent a commission’s diagnosis of claimant’s condition and earning prospects at the time of hearing 

may be, that condition may later change markedly for 

the worse, or may improve, or may even clear up altogether. Under the typical award in the form of periodic 

payments during a specified maximum period or during disability, the objectives of the legislation are best 

accomplished if the commission can increase, decrease, 

revive, or terminate payments to correspond to a claimant’s changed condition.

Id., § 131.01 at 131-3.

[5] In a proceeding to modify a prior award, the employer 

has the burden of establishing a decrease of incapacity and 

the employee has the burden of establishing an increase. 

Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d 

845 (2013). We have stated that the employee has the burden 

of proving that his injury caused permanent impairment as a 
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predicate to an award for permanent disability, i.e., loss of 

earning capacity. See id. See, also, Green v. Drivers Mgmt., 

Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

[6-9] 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). Compensation for temporary disability ceases as soon as the extent of the claimant’s 

permanent disability is ascertained. Id. In other words, temporary disability benefits 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. Visoso v. Cargill Meat Solutions, 

supra; Rodriguez v. Hirschbach Motor Lines, supra. Simply 

stated, when an injured employee has reached maximum medical improvement, any remaining disability is, as a matter of 

law, permanent. Id.

[10] We have stated that temporary disability benefits are 

discontinued at the point of maximum medical improvement, 

because a disability cannot be both temporary and permanent 

at the same time. Visoso v. Cargill Meat Solutions, supra. 

Temporary payments do not continue after maximum medical improvement has been reached by the employee, as to all 

injuries. See Rodriguez v. Hirschbach Motor Lines, supra. 

And once the employer establishes that the employee has 

reached maximum medical improvement, the employer has 

satisfied its burden of proof that the employee’s temporary 

disability payments should cease. See Visoso v. Cargill Meat 

Solutions, supra.

After determining that temporary disability payments should 

cease, the next question is what, if any, permanent disability 

payments the employer should pay to the employee. See id. 

Permanent disability is an essential element of an employee’s 

claim in workers’ compensation, and therefore, the burden 
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rests with the employee to prove the elements of his or her 

compensation claim. Id. See, also, Green v. Drivers Mgmt., 

Inc., supra. After reaching maximum medical improvement, 

the employee has the burden of proving that his or her injury 

caused permanent impairment and that this permanent impairment resulted in a loss of earning capacity. See Visoso v. 

Cargill Meat Solutions, supra.

Employer’s Petition to Modify 

and Further Award.

In this case, the compensation court awarded temporary 

benefits to Gardner in the original award filed September 23, 

2010. On May 6, 2013, the employer filed a petition to modify 

the original award, alleging that Gardner had reached maximum medical improvement as to all of his injuries and had 

experienced a decrease in his incapacity. In his answer filed 

May 21, Gardner alleged that he had not reached maximum 

medical improvement, that he had not experienced a decrease 

in incapacity, and that he “may have experienced an increase 

in incapacity due solely to his original injury.” Gardner suggests that a petition to modify may not have been appropriate. 

However, because the original award did not set forth terms to 

convert from temporary to permanent benefits and the parties 

did not agree to convert, we reject this suggestion. Compare, 

Weber v. Gas ’N Shop, 280 Neb. 296, 786 N.W.2d 671 (2010); 

Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 

598 (2007).

With respect to when Gardner reached maximum medical improvement, the record shows that on May 24, 2013, 

the compensation court filed an order in which it stated that 

Gardner “has reached maximum medical improvement” and 

that he should receive a functional capacity evaluation pursuant to Dr. Phillips’ recommendation. Furthermore, in an 

August 20 letter, the employer’s counsel asked Dr. Phillips 

whether Gardner had reached maximum medical improvement, and in a September 11 response, Dr. Phillips stated that 

Gardner had reached maximum medical improvement. We 
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note for completeness that in an order filed on October 31, the 

compensation court recognized, inter alia, that the parties had 

stipulated that the employer

shall pay to [Gardner] indemnity at the rate of a 45 

percent loss of earning capacity to the time of final 

resolution and that the finding of the 45 percent loss 

of earning capacity shall be considered an agreement 

by the parties with approval by the Nebraska Workers’ 

Compensation Court.

Because it was established that Gardner had reached maximum medical improvement, Gardner had the burden of proving that his injury caused permanent impairment and that this 

permanent impairment resulted in a loss of earning capacity. See Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 

N.W.2d 845 (2013). After trial, the compensation court filed 

its further award on August 8, 2014, in which the court determined that Gardner’s injury had caused permanent impairment 

and that his permanent impairment resulted in a 100-percent 

loss of earning capacity. The compensation court thus awarded 

Gardner permanent total disability benefits.

Employer’s Contentions.

The employer claims that the compensation court erred 

in its further award, because the court considered Gardner’s 

preexisting mental and cognitive conditions and admitted and 

relied upon the reports of Drs. Rich and Golnick, which 

reports discussed Gardner’s mental and cognitive conditions. 

The employer asserts that such consideration violates the lawof-the-case doctrine. The employer acknowledges that in the 

original award, the court had determined that Gardner had 

preexisting mental health problems that were temporarily exacerbated by the April 16, 2009, accident, but the employer 

focuses on the ruling to the effect that the head and mental 

injuries resulting from the accident had reached maximum 

medical improvement. In the current proceeding, the employer 

argues that given the finding of maximum medical improvement of mental health issues in the original award, the court 
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improperly considered Gardner’s mental and cognitive conditions and the medical reports that discuss such conditions in 

determining the extent of Gardner’s disability in the further 

award. In response, Gardner notes that in the original award, 

the Workers’ Compensation Court found that Gardner had a 

preexisting mental condition and that Gardner’s mental and 

emotional deficits had returned to the baseline preexisting 

level. Gardner contends that the enduring fact for law-ofthe-case purposes is that Gardner has a preexisting mental 

health condition.

[11] We have stated that the law-of-the-case doctrine reflects 

the principle that an issue litigated and decided in one stage 

of a case should not be relitigated at a later stage. In re 2007 

Appropriations of Niobrara River Waters, 283 Neb. 629, 820 

N.W.2d 44 (2012). With respect to the law-of-the-case doctrine in workers’ compensation cases, it has been stated:

[In a] [c]hange-of-condition reopening proceeding, the 

issue before the [compensation court] is sharply restricted 

to the question of extent of improvement or worsening of 

the injury on which the original award was based. If the 

original award held that there was no connection between 

the accident and claimant’s permanent disability, there is 

nothing to reopen, and claimant cannot retry the issue of 

work-connection through the device of a reopening petition. Conversely, when the employee reopens to show 

increased disability, the insurance carrier cannot raise the 

basic issue of liability. In short, no matter who brings 

the reopening proceeding, neither party can raise original 

issues such as work-connection, employee or employer 

status, occurrence of a compensable accident, and degree 

of disability at the time of the first award.

13 Arthur Larson & Lex K. Larson, Larson’s Workers’ 

Compensation Law § 131.03[2][b] at 131-35 (2015). The 

authority just quoted illustrates the types of determinations in 

a workers’ compensation case that are subject to the law-ofthe-case doctrine. We have effectively applied the concept of 

law of the case in workers’ compensation cases. E.g., Starks 
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v. Cornhusker Packing Co., 254 Neb. 30, 37-38, 573 N.W.2d 

757, 763 (1998) (stating in modification proceeding that modification of original award could not be applied retroactively 

to date of original award because “a modification award, 

retroactively applied to the date of the original award, would 

effectively afford the parties involved an opportunity to relitigate the award. Such action is prohibited by the principle of 

res judicata”).

In the present case, in the original award, the compensation 

court found that Gardner had preexisting mental and cognitive deficits prior to the April 16, 2009, accident, including 

depression, anxiety, confusion, and memory loss. The court 

determined that these preexisting mental and cognitive deficits 

were temporarily aggravated by the injury to the head in the 

accident, but that after the aggravation subsided, Gardner’s 

mental and cognitive deficits returned to their prior baseline 

condition. The court stated that “[t]he evidence preponderates in a finding that [Gardner’s] preexisting conditions were 

the same from a cognitive standpoint prior to the accident as 

subsequent to the accident and that the exacerbation of the 

symptoms from the accident of April 16, 2009, was a temporary condition.”

The fact that Gardner had preexisting mental and cognitive 

deficits that remained after being temporarily exacerbated by 

the accident, as found in the original award, became a fact 

decided in this case from which no appeal was taken. Given 

the fact that Gardner had been determined to have a preexisting mental health condition, under the law-of-the-case doctrine, 

the compensation court could and did properly consider the 

significance of the preexisting condition in rendering its further award. In this regard, the compensation court stated in the 

further award:

The Award of September 23, 2010 acknowledged 

[Gardner’s] preexisting cognitive, depression and anxiety 

deficits and found that the accident of April 16, 2009 

resulted in a temporary aggravation that resolved to their 

prior state and resulted in no permanent impairment as 
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a result of the work related accident of April 16, 2009. 

Having found that [Gardner’s] preexisting emotional condition returned to its pre-accident state, [Gardner’s] emotional condition prior to the accident did not resolve.

[12] As a further argument regarding Gardner’s mental 

health issue, the employer contends that the reports of Drs. 

Rich and Golnick should not have been considered. We do 

not agree. The reports of Drs. Rich and Golnick were relevant 

to the issue of Gardner’s mental health condition as it related 

to his disability at the time of consideration of the petition 

to modify. In this case, the Workers’ Compensation Court 

did not make a separate award for mental illness. Compare 

Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 

(2009). Nevertheless, mental health evidence was relevant to 

the issue of permanent disability. In Dr. Rich’s reports, he 

noted that Gardner suffered from depression, anxiety, and posttraumatic stress disorder, which limited his ability to work. 

In Dr. Golnick’s report, he noted that Gardner experienced 

depression, dizziness, cognitive and memory problems, regular episodes of confusion, and moderate to severe anxiety. 

These symptoms, as well as Gardner’s reported “difficulty 

with word finding,” bore on Gardner’s employability. The 

Workers’ Compensation Court is the sole judge of the credibility and weight to be given medical evidence, even when 

the health care professionals do not give live testimony. See 

Damme v. Pike Enters., 289 Neb. 620, 856 N.W.2d 422 (2014). 

The compensation court did not err when it admitted and considered the reports of Drs. Rich and Golnick.

[13-15] The employer claims generally that the compensation court erred when it found Gardner was permanently and 

totally disabled. We find no merit to this assignment of error. 

Causation of an injury or disability presents an issue of fact. 

Damme v. Pike Enters., supra. Whether a plaintiff in a workers’ compensation case is totally and permanently disabled 

is a question of fact. See, Armstrong v. State, 290 Neb. 205, 

859 N.W.2d 541 (2015); Money v. Tyrrell Flowers, 275 Neb. 

602, 748 N.W.2d 49 (2008). In testing the sufficiency of the 
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evidence to support the findings of fact, an appellate court 

considers the evidence in the light most favorable to the successful party, every controverted fact must be resolved in favor 

of the successful party, and we give the successful party the 

benefit of every inference reasonably deducible from the evidence. See Money v. Tyrrell Flowers, supra.

[16,17] With respect to preexisting conditions, we have 

stated that a claimant is entitled to an award under the Nebraska 

Workers’ Compensation Act for a work-related injury and 

disability if the claimant shows, by a preponderance of the 

evidence, that the claimant sustained an injury and disability 

proximately caused by an accident which arose out of and in 

the course of the claimant’s employment, even though a preexisting disability or condition has combined with the present 

work-related injury to produce the disability for which the 

claimant seeks an award. Schlup v. Auburn Needleworks, 239 

Neb. 854, 479 N.W.2d 440 (1992). See, also, Damme v. Pike 

Enters., supra. A workers’ compensation claimant can recover 

benefits when an injury, arising out of and in the course of 

employment, combines with a preexisting condition to produce 

a disability. See Damme v. Pike Enters., supra.

Although a South Carolina Court of Appeals’ case involved 

issues regarding a separate award for mental illness, we agree 

with the observation of that court, which stated that “[a mental 

health] symptom which is present and causally connected, but 

found not to impact upon the claimant’s condition at the time 

of the original award, may later manifest itself in full bloom 

and thereby worsen his or her condition.” Estridge v. Joslyn 

Clark Controls, Inc., 325 S.C. 532, 540, 482 S.E.2d 577, 581 

(S.C. App. 1997). Thus, the worsening of a claimant’s mental 

health over time remains a possibility.

In the present case, the Workers’ Compensation Court 

relied on the odd-lot doctrine. In Schlup, we considered the 

odd-lot doctrine and agreed with the Workers’ Compensation 

Court that the claimant was permanently and totally disabled 

under the odd-lot doctrine. We quoted Professor Larson and 

stated that “‘[u]nder the odd-lot doctrine, which is accepted 
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in virtually every jurisdiction, total disability may be found in 

the case of workers who, while not altogether incapacitated 

for work, are so handicapped that they will not be employed 

regularly in any well-known branch of the labor market.’ 2 

A. Larson, The Law of Workmen’s Compensation § 57.51(a) 

at 10-164.68 (1989).” Schlup v. Auburn Needleworks, 239 

Neb. at 865, 479 N.W.2d at 448. See 7 Arthur Larson & Lex 

K. Larson, Larson’s Workers’ Compensation Law § 83.01 

(2015). We further quoted Professor Larson by stating:

“A considerable number of the odd-lot cases involve 

claimants whose adaptability to the new situation created by their physical injury was constricted by lack of 

mental capacity or education. This is a sensible result, 

since it is a matter of common observation that a man 

whose sole stock in trade has been the capacity to perform physical movements, and whose ability to make 

those movements has been impaired by injury, is under 

a severe disadvantage in acquiring a dependable new 

means of livelihood . . . .”

Schlup v. Auburn Needleworks, 239 Neb. at 865, 479 N.W.2d 

at 448. See 7 Larson & Larson, supra, § 83.04.

In Schlup, the claimant suffered from carpal tunnel syndrome arising out of her employment and she filed a claim in 

the Workers’ Compensation Court. We noted that the claimant had preexisting problems with her back and that she had 

left high school in 10th grade and had not received a diploma 

through the general educational development program. We 

recognized that because of her preexisting back problems and 

academic shortcomings, it was impossible for her to find work 

that did not involve the use of her hands. We determined that 

in assessing her work-related injury, the compensation court 

did not err when it considered evidence of her preexisting 

back problems and academic shortcomings.

[18] With respect to total and permanent disability, we 

recently stated that total disability does not mean a state of 

absolute helplessness. Armstrong v. State, 290 Neb. 205, 859 

N.W.2d 541 (2015). See, also, Schlup v. Auburn Needleworks, 
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supra. It means that because of an injury (1) a worker cannot 

earn wages in the same kind of work, or work of a similar 

nature, that he or she was trained for or accustomed to perform 

or (2) the worker cannot earn wages for work for any other 

kind of work which a person of his or her mentality and attainments could do. Id.

In the present case, the Workers’ Compensation Court 

found that Gardner had reached maximum medical improvement with respect to all of his injuries arising out of the April 

16, 2009, accident. Relying upon the previous finding of his 

“pre-accident cognitive and learning disability, depression and 

anxiety,” the evidence properly admitted at trial, and applying 

the odd-lot doctrine, the compensation court determined that 

Gardner’s injury resulting from the accident had combined 

with his preexisting mental and cognitive conditions and 

that Gardner was permanently and totally disabled. Included 

in the evidence upon which the compensation court relied 

was a report from Dr. Golnick dated March 25, 2013, which 

stated that since Gardner underwent the three-level cervical 

fusion of his spine, Gardner continued to have headaches and 

neck pain, and that he “report[ed] periods of confusion and 

difficulty with word finding.” The compensation court also 

noted a December 16 report by Dr. Rich, which stated that 

Gardner had preexisting cognitive deficits and depression 

prior to the accident and that Gardner “limits his physical 

activity based on his pain which restricts [Gardner’s] interactions and limits other activity and social involvements based 

on his anxiety and depression.” Importantly, Dr. Rich stated 

that Gardner’s restrictions continued to cause an inability to 

work. Dr. Rich stated that Gardner’s preexisting cognitive 

conditions were permanent and “were naturally progressing 

due to . . . Gardner’s lack of treatment.” Under the odd-lot 

doctrine, the court could look to Gardner’s physical injury 

resulting from the accident along with his preexisting mental 

and cognitive conditions, including depression and anxiety, in 

order to determine the extent of his loss of earning power. In 

view of the evidence and applicable law, we determine that 
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the court did not err when it determined that Gardner was 

permanently and totally disabled.

We note for completeness that the employer also claims that 

the compensation court erred when it awarded Gardner future 

medical care for his depression, anxiety, and cognitive deficits. 

However, our reading of the further award does not show the 

specific award about which the employer complains and we 

reject this assignment of error.

According to the further award, the employer “should continue to provide and pay for such reasonable and necessary 

medical expenses as may be necessary as a result of the 

accident and injury of April 16, 2009.” In paragraph III of 

the further award, the compensation court stated: “Several of 

[Gardner’s] physicians have found that [Gardner] will be in 

need of future medical care such as Dr. Rich stated for pain 

management and [Gardner’s] depression, anxiety, and cognitive difficulties.” In paragraph IV of the further award, the 

court stated that the employer

should pay to and on behalf of [Gardner] any outstanding 

medical bills set forth in Exhibit 237. The defendant is 

entitled to a credit for any previous payment of medical 

bills as itemized in Exhibits 267 and 268. To the extent 

that there are any other third-party payees or reimbursements to [Gardner] those payments should be made as 

indicated. In addition, the medical fees shall be paid 

pursuant to the medical fee schedule as adopted by the 

Nebraska Workers’ Compensation Court.

In paragraph V of the further award, the court stated that the 

employer “is entitled to a credit for its previous payment of 

indemnity and medical expenses as set forth in Exhibit 267.”

The further award also provided that the employer “shall 

pay to and on behalf of [Gardner] the outstanding medical 

expenses set forth more particularly in paragraph IV above 

and subject to the terms and conditions of that paragraph.” 

The order provided that the employer “is entitled to a credit 

for its previous payment of indemnity and medical expenses 

as set forth more particularly in paragraphs IV and V above.” 
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Taken as a whole, the court did not make a specific order 

finding a mental health injury or specifically regarding future 

medical care for Gardner’s mental health issues. We find no 

error in the further award.

CONCLUSION

As explained above, we determine that the compensation 

court did not err when it admitted and relied upon the reports 

of Drs. Rich and Golnick and when it considered Gardner’s 

preexisting mental and cognitive deficits in determining the 

extent of his disability. We further determine that the compensation court did not err when it applied the odd-lot doctrine 

and found that Gardner was permanently and totally disabled. 

Accordingly, we affirm the further award of the compensation court.

Affirmed.