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Cite as 32 Neb. App. 899

Marlene Ventura Duenas, appellee, 

v. Papillion Foods, appellant.

___ N.W.3d ___

Filed May 21, 2024. No. A-23-563.

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

Stat. § 48-185 (Reissue 2021), 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. ____: ____. On appellate review, the factual findings made by the trial 

judge of the compensation court have the effect of a jury verdict and 

will not be disturbed on appeal unless clearly wrong.

3. Workers’ Compensation: Judgments: Appeal and Error. In testing 

the sufficiency of the evidence to support the findings of fact in a workers’ compensation case, 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.

4. Workers’ Compensation: Proof. In order to recover under the Nebraska 

Workers’ Compensation Act, a claimant has the burden of proving by a 

preponderance of the evidence that an accident or occupational disease 

arising out of and occurring in the course of employment proximately 

caused an injury which resulted in disability compensable under the act.

5. Workers’ Compensation: Expert Witnesses. If the nature and effect 

of a claimant’s injury are not plainly apparent, then the claimant must 

provide expert medical testimony showing a causal connection between 

the injury and the claimed disability.

6. ____: ____. It is the role of the compensation court as the trier of fact to 

determine which, if any, expert witnesses to believe.

Nebraska Supreme Court Online Library

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

07/10/2024 06:10 PM CDT
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7. Workers’ Compensation. Whether an injury arose out of and in the 

course of employment must be determined from the facts of each case.

8. Workers’ Compensation: Proof. The two phrases “arising out of” and 

“in the course of” in Neb. Rev. Stat. § 48-101 (Reissue 2021) are conjunctive; in order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist.

9. ____: ____. The “in the course of” requirement tests the work connection as to the time, place, and activity; that is, it demands that the 

injury be shown to have arisen within the time and space boundaries of 

employment and in the course of an activity whose purpose is related to 

employment.

10. Workers’ Compensation: Words and Phrases. The phrase “arising 

out of,” as used in Neb. Rev. Stat. § 48-101 (Reissue 2021), describes 

the accident and its origin, cause, and character, i.e., whether it resulted 

from the risks arising within the scope of the employee’s job.

11. Workers’ Compensation. All risks causing injury to an employee can 

be placed within three categories: (1) employment related—risks distinctly associated with the employment; (2) personal—risks personal 

to the claimant, e.g., idiopathic causes; and (3) neutral—a risk that 

is neither distinctly associated with the employment nor personal to 

the claimant.

12. ____. Harm that arises from risks distinctly associated with the employment is universally compensable.

13. ____. Generally, harm that can be attributed solely to personal or idiopathic causes is universally noncompensable.

14. ____. Harm that arises from neutral risks is generally compensable.

15. ____. Temporary disability benefits under the Nebraska Workers’ 

Compensation Act are discontinued at the point of maximum medical 

improvement, because a disability cannot be both temporary and permanent at the same time.

16. Workers’ Compensation: Time. The date of maximum medical 

improvement for purposes of ending a workers’ compensation claimant’s 

temporary disability is the date upon which the claimant has attained 

maximum medical recovery from all of the injuries sustained in a particular compensable accident.

17. Workers’ Compensation. When an injured employee has reached maximum medical improvement, any remaining disability is, as a matter 

of law, “permanent,” within the meaning of the Nebraska Workers’ 

Compensation Act.

18. ____. Whether a workers’ compensation claimant has reached maximum 

medical improvement is a question of fact.

19. Workers’ Compensation: Appeal and Error. Workers’ Comp Ct. R. of 

Proc. 11 (2021) ensures that compensation court orders are sufficiently 
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clear in addressing the parties’ requested relief so that an appellate court 

can review the evidence relied upon by the trial judge in support of his 

or her findings.

Appeal from the Workers’ Compensation Court: James R. 

Coe, Judge. Affirmed in part, and in part vacated and remanded 

with directions.

Charles L. Kuper, of Kuper, Wenninghoff & Block, P.C., 

L.L.O., for appellant.

Michael P. Dowd, of Dowd & Corrigan, L.L.C., for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Papillion Foods appeals the award of the Workers’ 

Compensation Court finding Marlene Ventura Duenas (Duenas) 

suffered a work-related injury that left her permanently and 

totally disabled. Papillion Foods challenges the compensation 

court’s causation and permanency determinations and asserts 

the award does not provide a basis for meaningful review 

in violation of Workers’ Comp. Ct. R. of Proc. 11 (2021) 

(Rule 11).

We affirm the compensation court’s findings of causation; 

however, because we conclude that the compensation court’s 

award did not provide a meaningful basis for appellate review 

of its award of permanent and total disability benefits, we 

vacate that portion of the award and remand the matter to the 

compensation court with directions to enter an order in compliance with Rule 11.

BACKGROUND

Prior History.

Duenas, who is from El Salvador, began working at Papillion 

Foods on April 5, 2021. She moved to the United States 

in 2015 and does not speak English. Duenas had previous 
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workers’ compensation claims that stemmed from injuries in 

2016 and 2017 involving her right knee, left knee, and lower 

back. She had previously been diagnosed with arthritis in both 

of her knees. On April 2, 2021, Duenas visited her physician 

for a wellness examination and had no complaints related to 

the arthritis or prior injuries to her knees or lower back.

Work Injury. 

On April 8, 2021, Duenas was working at Papillion Foods 

and was issued rubber boots to put over her regular shoes. 

Duenas testified that the boots she was issued were too large 

and that she was told that was the only size available. Duenas 

stated that while walking down the stairs to go back to the 

workline after lunch, the boots bent back. She felt a “pop” 

in her left knee that radiated from back to front, and she was 

unable to walk. Duenas’ knee was swollen that evening, and 

she still could not walk.

Ronald Dippel, the safety manager for Papillion Foods, 

investigated the accident. Dippel spoke with Duenas and 

another employee, and his understanding was that Duenas 

was injured coming down some stairs after lunch, that she felt 

pain, and that she then reported it. Dippel testified that Duenas 

never mentioned anything about her boots, nor did she make 

any gestures indicating that one of her boots bent. He also 

stated that at the time, Duenas was unsure what had caused 

her injury. 

The accident report completed by Duenas stated that she 

“was coming back from my lunch and going down the stairs 

when my left foot bent.” The report makes no mention of 

boots. Dippel stated that it was not until April 13, 2021, that 

Duenas said her boot curled underneath her foot, which she 

believed caused the injury. Dippel testified that if an employee 

had said the employee’s boots were too large, a smaller size 

would have been issued immediately because the company 

recognizes that it is a potential slip hazard and there would 

have been a variety of sizes available.
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Medical Care and Treatment.

The day after the accident, Duenas still could not walk and 

did not go to work. She was examined by the company health 

service and reported that “she was coming down the stairs at 

work and when she came to the bottom stair she felt a pop in 

the back of her left knee.” Duenas was allowed to return to 

work with a knee sleeve, a thigh compression wrap, and the 

use of a walker or crutches.

Due to lack of improvement, an MRI was performed in 

May 2021 that revealed a torn meniscus. Duenas was referred 

through her employer to Dr. Brian Conroy, an orthopedic specialist. Duenas reported to him that “she was walking down the 

stairs while at work, when she bent her knee in a non typical 

fashion.” Conroy injected her knee with cortisone and recommended she return to work with the assistance of crutches and 

a knee brace.

On June 15, 2021, Conroy issued a causation report in 

which he opined that Duenas’ pain and disability were related 

to her fall at work, and not to her preexisting arthritis. He also 

recommended that Duenas undergo surgery on her knee. The 

surgery on Duenas’ left knee was performed on August 18, 

and she was given a prescription for a wheelchair to use during her recovery.

Duenas attended physical therapy, and at various times, it 

was noted that she was having pain in both knees. It was also 

noted that she had pain in her lower back from sitting in the 

wheelchair for so long. Duenas testified that she began to experience back pain and that she also would use her right knee 

more to avoid pressure on her left knee. A physical therapy 

report from October 2021 reflected that Duenas had started 

back at work and was very sore.

Various work restrictions were provided during the course 

of Duenas’ treatment. Following her August 18, 2021, surgery, 

she was off work until October 1. At that time, she returned to 

work, but she insisted she needed to remain in a wheelchair 

at all times. Conroy clarified that Duenas could perform only 
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sitting work, but that it could be in a desk chair, and she did 

not need to sit only in her wheelchair.

On October 12, 2021, Conroy noted that Duenas was experiencing back pain. It was his opinion that the back pain was 

a direct result of the work-related knee injury and treatment, 

specifically the non-weight-bearing status and then progressive 

weight bearing. On October 21, Conroy continued Duenas’ 

restriction to only sitting work. A physical therapy report from 

November 22 stated that Duenas had a significant increase 

in pain in both knees and her lower back. On November 23, 

Conroy restricted Duenas to a total of 8 hours each workday, 

with 4 hours a day sitting and 4 hours a day standing, alternating between sitting and standing throughout the shift. She also 

could not squat, kneel, twist, or lift more than 10 pounds, but 

could walk 100 yards to and from a workstation.

In Conroy’s progress note of January 11, 2022, he stated that 

he gave Duenas the option of a cortisone injection or permanent restrictions. He reported that Duenas stated she wanted a 

functional capacity evaluation and permanent restrictions, but 

then stated she wanted to continue therapy. Ultimately, it was 

decided that Duenas would try therapy for another month and 

continue the work restrictions in place and then would be evaluated in another month. Duenas’ work restrictions remained 

the same, and she was to continue physical therapy with a 

recheck with Conroy in a month. He anticipated that at that 

time, she would be at maximum medical improvement.

Duenas’ May 26, 2022, followup appointment with Conroy 

was canceled because the workers’ compensation insurance 

carrier did not approve the visit. Duenas testified that on May 

27, she was called to the Papillion Foods’ office and was told 

she was being placed in a different job but that she did not 

believe it met her restrictions. Duenas stated she told Papillion 

Foods that she needed to be somewhere that she could be sitting all the time, but that “they didn’t want to respect that.” 

May 27 was the last day Duenas worked at Papillion Foods. 

Dippel testified that the job that Duenas was offered was 
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within her restrictions and that when they offered that job 

to her, she declined. Dippel was unaware of any time that 

Papillion Foods did not honor Duenas’ work restrictions.

At the request of Papillion Foods, Dr. Ryan Arnold evaluated Duenas on June 3, 2022, and issued a report finding that 

Duenas had osteoarthritis of the left knee and morbid obesity 

and that these were not specifically related to the April 8, 

2021, injury. He opined that Duenas’ continued symptoms 

were the result of the chronic underlying progressive osteoarthritis condition of her knee and that further medical treatment would be treating that chronic underlying condition. In 

his opinion, she had reached maximum medical improvement 

regarding the April 8 injury.

Duenas returned to Conroy on June 14, 2022, at which 

time she was “limping quite badly.” Conroy ordered an MRI 

of her left knee and restricted her to sitting work only. She 

returned to Conroy on July 12 to review the MRI findings. At 

that time, she had complaints of pain in both knees. Conroy 

opined that although Duenas had preexisting arthritis in 

her right knee, it was exacerbated by the injury in her left 

knee, which also caused her back to hurt. He injected her 

right knee.

On August 21, 2022, Conroy responded to a questionnaire from Duenas’ attorney. The questionnaire asked whether 

Duenas was at maximum medical improvement and, if so, to 

state the impairment of her left lower extremity, right lower 

extremity, and back (body as a whole). Conroy responded that 

Duenas had a 25-percent whole person impairment.

In October 2022, Ted Stricklett, a court-appointed vocational 

counselor, issued a loss of earning capacity report, and he 

determined, based on her restrictions of sitting work only, that 

she had sustained a total loss of earning capacity.

On February 26, 2023, Conroy responded to several questions posed by Papillion Foods’ attorney. He indicated that had 

he known of Duenas’ prior workers’ compensation claims, he 

would have inquired further and requested records. Conroy 
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was asked whether, based on evidence of Duenas’ prior workers’ compensation claims and other information regarding 

her lifestyle and walking abilities that Papillion Foods had 

detailed in a letter, his opinion would remain the same as it 

was on August 21, 2021. Conroy stated that Duenas was a 

“difficult person to assess,” but that she objectively demonstrated the inability to walk when he saw her in the clinic. He 

stated that what was most outstanding to him was Duenas’ 

“gait derangement” and that when he saw her in the clinic, 

she could not safely walk without a walker. He stated that if it 

were demonstrated she could ambulate better, that that may be 

a reason to reevaluate the impairment rating.

A functional capacity evaluation was conducted on April 

28, 2023, which found that Duenas had restrictions of occasional standing and walking but that she also needed to 

use a supporting surface with all walking activities. Conroy 

agreed these were medically reasonable and necessary restrictions due to Duenas’ work accident and supporting activities. 

However, due to the results of the April 28 evaluation, he 

lowered Duenas’ whole body impairment rating to 20 percent. 

Stricklett updated his loss of earning capacity evaluation following the results of the updated functional capacity evaluation, but he continued to opine that Duenas experienced a total 

loss of earning capacity.

Compensation Court Award.

The compensation court described causation as “close,” 

but accepted Duenas’ version that she was injured when 

walking down the stairs and slipped due to the oversized 

boots Papillion Foods had issued to her. It noted Conroy 

recognized Duenas’ preexisting arthritis but stated that based 

upon reasonable medical certainty, the pain and disability she 

was experiencing were from the fall at work, and that her 

back pain was a result of the work-related knee injury. The 

compensation court gave Stricklett’s assessment a rebuttable 

presumption of correctness, and it accepted his opinion that 
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Duenas had a 100-percent loss of earning capacity, despite the 

findings in the later functional capacity evaluation.

The compensation court ordered Papillion Foods to pay 

Duenas permanent and total disability benefits from the date 

Duenas last worked at Papillion Foods on May 27, 2022, to 

the date of the hearing, and for so long in the future as Duenas 

remained permanently and totally disabled. It also ordered 

Papillion Foods to pay outstanding medical expenses and found 

that Duenas was entitled to future medical care as set forth in 

Conroy’s report of “July 12 [sic].” Papillion Foods appeals.

ASSIGNMENTS OF ERROR

Papillion Foods assigns, reordered, that the compensation 

court erred as a matter of law and fact by (1) determining that 

Duenas suffered an accident arising out of and in the course 

of her employment with Papillion Foods and (2) adopting the 

opinion of Conroy. It also assigns that the compensation court 

(3) erred in determining that Duenas is permanently totally 

disabled and (4) failed to issue an award that provides a basis 

for meaningful review, in violation of Rule 11.

STANDARD OF REVIEW

[1] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2021), 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. 

Cajiao v. Arga Transport, 30 Neb. App. 700, 972 N.W.2d 

433 (2022).

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

the trial judge of the compensation court have the effect of a 

jury verdict and 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, an 
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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. Id.

ANALYSIS

[4] In order to recover under the Nebraska Workers’ 

Compensation Act, a claimant has the burden of proving by a 

preponderance of the evidence that an accident or occupational 

disease arising out of and occurring in the course of employment proximately caused an injury which resulted in disability 

compensable under the act. Hintz v. Farmers Co-op Assn., 297 

Neb. 903, 902 N.W.2d 131 (2017).

[5,6] If the nature and effect of a claimant’s injury are not 

plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury 

and the claimed disability. Id. The rule in this jurisdiction 

is that triers of fact are not required to take the opinions of 

experts as binding on them. Id. It is the role of the compensation court as the trier of fact to determine which, if any, expert 

witnesses to believe. Id.

Accident in Course of Employment.

Papillion Foods assigns that the compensation court erred 

in determining that Duenas suffered an accident arising out of 

and in the course of her employment. It attacks both Duenas’ 

credibility in her recitation of how the injury occurred and the 

legal sufficiency of Conroy’s opinion. We find no error in the 

compensation court’s determination.

[7-9] Whether an injury arose out of and in the course of 

employment must be determined from the facts of each case. 

Webber v. Webber, 28 Neb. App. 287, 942 N.W.2d 438 (2020). 

The two phrases “arising out of” and “in the course of” in 

Neb. Rev. Stat. § 48-101 (Reissue 2021) are conjunctive; in 

order to recover, a claimant must establish by a preponderance of the evidence that both conditions exist. Webber v. 
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Webber, supra. The “in the course of” requirement tests the 

work connection as to the time, place, and activity; that is, it 

demands that the injury be shown to have arisen within the 

time and space boundaries of employment and in the course 

of an activity whose purpose is related to employment. Id.

[10-14] The phrase “arising out of,” as used in § 48-101, 

describes the accident and its origin, cause, and character, i.e., 

whether it resulted from the risks arising within the scope of 

the employee’s job. Webber v. Webber, supra. All risks causing injury to an employee can be placed within three categories: (1) employment related—risks distinctly associated with 

the employment; (2) personal—risks personal to the claimant, 

e.g., idiopathic causes; and (3) neutral—a risk that is neither 

distinctly associated with the employment nor personal to 

the claimant. Id. Harm that arises from risks distinctly associated with the employment is universally compensable. Id. 

Generally, harm that can be attributed solely to personal or 

idiopathic causes is universally noncompensable. Id. Harm that 

arises from neutral risks is generally compensable. Id.

Here, the compensation court stated that it accepted Duenas’ 

testimony that she was injured when she walked down the 

stairs and slipped due to the oversized boots that Papillion 

Foods issued to her. As the trier of fact, the workers’ compensation court is the sole judge of the credibility of witnesses 

and the weight to be given their testimony. Parks v. Hy-Vee, 

307 Neb. 927, 951 N.W.2d 504 (2020). Our standard of review 

requires us to consider the evidence in the light most favorable to the successful party. See Cajiao v. Arga Transport, 30 

Neb. App. 700, 972 N.W.2d 433 (2022). Accepting Duenas’ 

testimony, we believe it shows her accident arose out of and 

in the course of her employment. She was issued the boots as 

part of her work the day of the accident, and due to their size, 

they bent back and caused her to slip, which led to immediate 

pain in her left knee.

Papillion Foods challenges Duenas’ version of the accident 

and argues that it is not credible because her initial reports 
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of injury fail to mention the boots as the cause of her knee 

injury. However, in her initial written report, she indicated that 

her “left foot bent.” Considering that Duenas does not speak 

English, we cannot conclude that her report is inconsistent with 

her claim. Furthermore, she testified at trial that she relayed 

the information regarding the boots when she was completing the accident report, which is written partly in English and 

partly in Spanish. The compensation court assessed Duenas’ 

credibility and believed her version. The court was not clearly 

wrong in doing so.

Papillion Foods also argues that Duenas’ injury did not 

arise out of her employment because her preexisting arthritis 

in her left knee was a personal risk that caused her injury in 

a manner that was not unexpected or unforeseen. Arnold supports this argument, stating that Duenas’ meniscus tear was 

a “tear of attrition,” which was a natural progression of her 

preexisting arthritis. And Papillion Foods argues that Conroy’s 

opinion that “her meniscus tear may be some degree [fresh] 

rather than a chronic root tear that comes with arthritis” 

is insufficient to prove causation. (Emphasis supplied.) We 

acknowledge that medical opinions couched in terms of possibility are insufficient. See Edmonds v. IBP, inc., 239 Neb. 

899, 479 N.W.2d 754 (1992). However, Conroy also opined, 

to a reasonable degree of medical certainty, that Duenas’ pain 

and disability were related to her fall at work, adding, “I recognize she has pre-existing arthritis but that was not affecting 

her before the fall according to the patient.” In a response of 

August 21, 2022, Conroy attributed Duenas’ knee injury to the 

oversized boots.

The compensation court accepted Duenas’ testimony, as 

well as Conroy’s opinion that the pain and disability she was 

experiencing were due to the work-related accident, and we 

cannot find that it was clearly wrong to do so. The compensation court did not err in determining Duenas’ injury arose out 

of and in the course of her employment.
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Conroy’s Opinion.

Papillion Foods assigns that the compensation court erred in 

adopting Conroy’s opinion not only on causation as addressed 

above, but also on the nature and extent of Duenas’ injury. 

Papillion Foods argues that Conroy did not consider Duenas’ 

prior workers’ compensation claims and collateral information that Duenas’ low-back pain had resolved; therefore, 

the compensation court should have discredited his opinion. 

We disagree.

We recognize that there was evidence that Duenas had previous workers’ compensation claims regarding her knees and 

back, but there was also evidence that those body parts were 

not causing Duenas any pain or disability just prior to the 

April 8, 2021, injury. We find no error in the court’s reliance 

upon Conroy’s opinion because even considering those prior 

claims, her health status immediately prior to her accident 

refutes any continuing issues.

Papillion Foods also argues that Duenas had reported that 

her back pain had resolved as evidenced by a progress note of 

June 23, 2022, which indicated she had scheduled an appointment for back pain, but she no longer had that discomfort. 

When Papillion Foods advised Conroy of this, he responded 

that he did not see written material indicating back pain resolution, but if he had, it would affect his opinion.

However, other evidence in the record indicates that 

Duenas’ back pain had not completely resolved by June 2022. 

Conroy treated Duenas on July 12 for knee pain. In his notes 

from that visit, he stated that her right knee arthritis has 

“been exacerbated by the injury in her left knee which is [sic] 

also caused her back to hurt.” We note, however, that under 

the heading “Review of Systems,” she was listed as being 

“[n]egative for back pain.” Furthermore, in Stricklett’s loss 

of earning capacity report of October, he noted that Duenas 

stated she had “‘a lot of pain in [her] back. . . . [Her] back is 

really bad so [she] must use a walker.’”
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Papillion Foods’ argument is that Conroy’s opinion would 

have changed if he had known Duenas’ low-back pain had 

resolved in June 2022. There is evidence, however, that her 

low-back pain had not resolved. Therefore, we cannot say 

that Conroy’s opinion regarding Duenas’ continued back pain 

is refuted by the record, nor that the compensation court was 

clearly wrong in adopting his opinion.

Permanent and Total Disability and Rule 11.

In its last two assigned errors, Papillion Foods assigns that 

the compensation court erred in finding Duenas permanently 

and totally disabled and that its order did not comply with Rule 

11 of the compensation court rules of procedure. Because our 

resolution of these two issues is related, we will address these 

assigned errors together.

[15-18] Temporary disability benefits under the Nebraska 

Workers’ Compensation Act are discontinued at the point of 

maximum medical improvement, because a disability cannot be 

both temporary and permanent at the same time. Krause v. Five 

Star Quality Care, 301 Neb. 612, 919 N.W.2d 514 (2018). The 

date of maximum medical improvement for purposes of ending 

a workers’ compensation claimant’s temporary disability is the 

date upon which the claimant has attained maximum medical 

recovery from all of the injuries sustained in a particular compensable accident. Id. When an injured employee has reached 

maximum medical improvement, any remaining disability is, 

as a matter of law, “permanent,” within the meaning of the 

Nebraska Workers’ Compensation Act. Krause v. Five Star 

Quality Care, supra. Whether a workers’ compensation claimant has reached maximum medical improvement is a question 

of fact. Id.

[19] Rule 11 provides in part that “[d]ecisions of the court 

shall provide the basis for a meaningful appellate review. The 

judge shall specify the evidence upon which the judge relies.” 

Rule 11 ensures that compensation court orders are sufficiently 

clear in addressing the parties’ requested relief so that an 

appellate court can review the evidence relied upon by the trial 
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judge in support of his or her findings. Lewis v. MBC Constr. 

Co., 309 Neb. 726, 962 N.W.2d 359 (2021).

Here, the compensation court found Duenas was entitled to 

permanent and total disability but made no finding that she 

had reached maximum medical improvement as to her knee 

and back injury, the date on which that was attained, or the 

evidence upon which it relied to make those determinations. 

Rather, it ordered Papillion Foods to pay permanent and 

total disability benefits from May 27, 2022, the date Duenas 

was last employed with Papillion Foods. Our review of the 

record does not reveal any correlation between that date and 

a finding of maximum medical improvement by any health 

care professional.

We also note that in its award, the court did not make a 

specific finding as to Duenas’ physical restrictions. It noted 

the loss of earning capacity evaluation by Stricklett of October 

24, 2022, in which Stricklett stated that “based upon Dr. 

Conroy’s restrictions of ‘sitting work only’ [Duenas] had a 

loss of access to employment of 100 percent and . . . loss of 

earning capacity of 100 percent.” It also recited the results of 

the functional capacity evaluation of April 27, 2023, limiting 

Duenas to a “medium physical demand ability” and that she 

“could lift 20 to 50 pounds occasionally and 10 pounds constantly”; however, the award does not make a finding of what 

Duenas’ physical restrictions actually are. Papillion Foods 

argues that without guidance as to what her permanent restrictions are, it is unable to later seek a modification pursuant to 

Neb. Rev. Stat. § 48-141 (Reissue 2021). We agree.

Because the award does not specify whether the compensation court had found Duenas at maximum medical improvement, the date on which that would have occurred, the extent 

of her permanent physical restrictions, or the evidence it relied 

upon in reaching those findings, it does not provide for meaningful appellate review on the issue of permanent and total 

disability. Because proof of permanent impairment of the body 

as a whole is a predicate to a determination of loss of earning capacity, the absence of a finding of maximum medical 
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Nebraska Court of Appeals Advance Sheets

32 Nebraska Appellate Reports

VENTURA DUENAS V. PAPILLION FOODS

Cite as 32 Neb. App. 899

improvement precludes the court’s determination of Duenas’ 

loss of earning capacity. See Visoso v. Cargill Meat Solutions, 

285 Neb. 272, 826 N.W.2d 845 (2013). In other words, without a finding of maximum medical improvement, loss of 

earning capacity and permanent and total disability cannot be 

determined. Furthermore, without identifying Duenas’ permanent physical restrictions, Papillion Foods is hindered in its 

ability to seek a later modification if her condition improves. 

We therefore vacate that portion of the court’s award relating 

to the award of permanent and total disability payments and 

remand the cause to the compensation court with directions 

to issue an award that complies with Rule 11. Papillion Foods 

points to various conflicting evidence that it states the compensation court failed to rule upon or address in addition to 

the issue of maximum medical improvement, and it argues that 

this shows the award does not provide for meaningful appellate review. We reject those arguments. The award addressed 

the evidence presented by both parties, including how the 

injury occurred, the medical treatment Duenas received, and 

the opinions of the professionals who examined Duenas and 

were involved in her care. Aside from the issues of maximum 

medical improvement, permanent and total disability status, 

and the extent of her restrictions, the award allows for meaningful appellate review and thus complies with Rule 11.

Attorney Fees.

Duenas requests that we award her attorney fees pursuant 

to Neb. Rev. Stat. § 48-125(4)(b) (Reissue 2021). Because we 

are in part vacating the award, we deny her request.

CONCLUSION

We vacate the compensation court’s finding of permanent 

and total disability and remand the cause to the compensation 

court with directions to enter an order in compliance with Rule 

11. We affirm the award in all other respects.

Affirmed in part, and in part vacated 

and remanded with directions.