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Nebraska Supreme Court Advance S

299 Nebraska Report

WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

Machelle Wynne, appellant, v. Menard,

Praetorian Insurance Company, its 

compensation insurance carrier, 

___ N.W.2d ___

Filed April 20, 2018. No. S-17-702.

1. Workers’ Compensation: Appeal and Error. A judgment, order, or 

award of the Workers’ Compensation Court may be modified, reversed, 

or set aside only upon the grounds that (1) the compensation court acted 

without or in excess of its powers; (2) the judgment, order, or award was 

procured by fraud; (3) there is not sufficient competent evidence in the 

record to warrant the making of the order, judgment, or award; or (4) 

the findings of fact by the compensation court do not support the order 

or award.

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. Pretrial Procedure: Proof: Appeal and Error. Decisions regarding 

discovery are directed to the discretion of the trial court, and will be 

upheld in the absence of an abuse of discretion. The party asserting error 

in a discovery ruling bears the burden of showing that the ruling was an 

abuse of discretion.

4. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose that there is no genuine 

issue as to any material fact or as to the ultimate inferences that may be 

drawn from those facts and that the moving party is entitled to judgment 

as a matter of law.

5. Summary Judgment: Proof. A party moving for summary judgment 

has the burden to show that no genuine issue of material fact exists 

and must produce sufficient evidence to demonstrate that it is entitled 

to judgment as a matter of law. If the movant meets this burden, then 

the nonmovant must show the existence of a material issue of fact that 

prevents judgment as a matter of law.

Nebraska Supreme Court Online Library

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

05/25/2018 09:07 AM CDT
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WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

6. Summary Judgment: Evidence. When the parties’ evidence would 

support reasonable, contrary inferences on the issue for which a movant 

seeks summary judgment, it is an inappropriate remedy.

7. Trial: Evidence. Where reasonable minds could draw different conclusions from the facts presented, such presents a triable issue of material fact.

8. Summary Judgment. At the summary judgment stage, the trial court 

determines whether the parties are disputing a material issue of fact. It 

does not resolve the factual issues.

9. Summary Judgment: Trial. Summary judgment is an extreme remedy 

and should not be used to deprive a litigant of a formal trial if there is a 

genuine issue of material fact.

Appeal from the Workers’ Compensation Court: Thomas E

Stine, Judge. Reversed and remanded for further proceedin

Michael J. Javoronok, of Michael J. Javoronok Law Firm, 

for appellant.

Todd R. McWha, Terrance O. Waite, and Christopher A. 

Sievers, of Waite, McWha & Heng, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, and Stacy

Luther and O’Gorman, District Judg

Heavican, 

INTRODUCTION

Machelle Wynne suffered knee and shoulder injuries in 

two separate incidents that arose out of her employment with 

Menard, Inc. The Nebraska Workers’ Compensation Court sustained Wynne’s motion for summary judgment insofar as it 

awarded her benefits for two scheduled injuries, but denied her 

claim that she was permanently and totally disabled. Wynne 

appeals. We reverse, and remand for further proceedings.

BACKGROUND

Wynne was employed by Menard and worked at a Menard 

store in Scottsbluff, Nebraska. She was injured on the job on 

two different occasions—a knee injury suffered on September 

25, 2013, and a shoulder injury suffered on July 8, 2014.
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299 Nebraska Report

WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

On August 7, 2015, the Workers’ Compensation Court found 

that Wynne had been injured in the scope and course of 

her employment, that she had not reached maximum medical 

improvement, and that she was entitled to further medical treatment and temporary total disability payments until maximum 

medical improvement was reached.

Wynne later had rotator cuff surgery. The surgeon found 

that Wynne had reached maximum medical improvement as of 

October 24, 2016. A functional capacity evaluation (FCE) was 

conducted by Theresa Olson on December 1. The results of 

the FCE noted that Wynne should reach overhead and forward 

only occasionally; should not squat, crawl, or walk on uneven 

surfaces; and should engage in static standing, walking, kneeling, balancing, and climbing ladders or stairs infrequently. The 

FCE included no restrictions on sitting.

On February 8, 2017, Dr. Michelle Cheloha, Wynne’s family practice physician, notified Wynne’s attorney via a form 

provided by counsel that Wynne was restricted from sitting 

for more than 10 minutes at one time. The court-appointed 

vocational expert, Ted Stricklett, opined that if Wynne were 

restricted from sitting for more than 10 minutes, she would be 

considered permanently and totally disabled.

Also in the record is a report from Dr. Douglas Scott, a 

specialist in occupational medicine. Scott opined that Wynne 

could work within her restrictions for 8 hours a day, 5 days 

a week. Scott further opined that Wynne had no spinal injury 

affecting her ability to sit; thus, the sitting restriction imposed 

by Cheloha was not supported by the medical evidence or by a 

reasonable or factual assessment of Wynne’s capability.

Stricklett later filed an amended report. That report indicated 

that based on Wynne’s FCE and Scott’s opinion, the sitting 

restriction imposed by Cheloha was unfounded.

During the course of discovery, Wynne served requests 

for admission on Menard. As relevant, those admissions and 

answers provided as follows:

2. Admit that [Wynne] has permanent restrictions from 

her on the job injuries:
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299 Nebraska Report

WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

a. as set out in Dr. Cheloha’s letter of February 10, 

2017, which is attached as Exhibit “B”;

b. and as set out in her letter of December 22, 2016, 

which is attached as Exhibit “C”.

ANSWER: Deny with regarding to Exhibit “B” because 

Dr. Cheloha does not indicate permanent; Admit as set 

forth in Exhibit “C”.

3. Admit that Dr. Cheloha opines in her letter of 

February 10, 2017, that . . . Wynne is no longer able 

to be gainfully employed.

ANSWER: Admit.

. . . .

7. Admit that in [his] report of February 16, 2017, . . . 

Stricklett, the vocational rehabilitation counselor, opined 

that [Wynne] had a loss of earning capacity of 100% as 

set out in attached Exhibit “D”.

ANSWER: Admit.

Wynne later filed a motion for summary judgment. The 

Workers’ Compensation Court granted the motion as to Wynne’s 

claim that she had reached maximum medical improvement 

and effectively denied the motion as to Wynne’s allegation of 

a 100-percent loss of earning capacity. The court’s order then 

went on to determine the percentage of extremity impairment 

and the amount of permanent disability benefits to which she 

was entitled. Wynne appeals the award.

ASSIGNMENTS OF ERROR

On appeal, Wynne assigns, restated and renumbered, that the 

Workers’ Compensation Court erred in (1) ignoring the conclusive effect of an admission under Neb. Ct. R. Disc. § 6-336(b); 

(2) admitting exhibits 34, 36, 37, and 38; and (3) weighing the 

evidence in a summary judgment motion.

STANDARD OF REVIEW

[1] A judgment, order, or award of the Workers’ Compensation 

Court may be modified, reversed, or set aside only upon the 

grounds that (1) the compensation court acted without or in 
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299 Nebraska Report

WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

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.1

[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.2

[3] Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of an 

abuse of discretion.3 The party asserting error in a discovery 

ruling bears the burden of showing that the ruling was an 

abuse of discretion.4

[4] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving 

party is entitled to judgment as a matter of law.5

ANALYSIS

Effect of Admission.

Wynne first assigns that Menard admitted, through its 

responses to her requests for admission, that she was permanently and totally disabled. Menard disagrees, contending it 

admitted that certain experts opined that Wynne was permanently and totally disabled, but that it did not admit the truth 

of those opinions.

The requests for admission as drafted by Wynne were 

specific insofar as they sought admissions with respect to 

1 Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016).

2 Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).

3 Moreno v. City of Gering, 293 Neb. 320, 878 N.W.2d 529 (2016).

4 Id.

5 Cookson v. Ramge, ante p. 128, 907 N.W.2d 296 (2018).
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WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

Cheloha’s and Stricklett’s opinions that would lead to the 

conclusion that Wynne was permanently and totally disabled. 

Notably, Wynne sought an admission that Cheloha had opined 

in a letter dated February 10, 2017, that Wynne had permanent 

restrictions due to her on-the-job injuries and was unable to 

be gainfully employed. Wynne further sought an admission 

that Stricklett had opined that Wynne had a 100-percent loss 

of earning capacity. In response, Menard admitted those statements, but noted that Cheloha did not term Wynne’s restrictions as permanent.

We reject Wynne’s attempt to characterize Menard’s admissions as conclusive proof that Wynne was permanently and 

totally disabled. The requests were drafted in such a way that 

an admission was conclusive—not to the truth of the underlying statement, but only as to the fact that the opinions were 

given as set forth in the requests. There is no merit to Wynne’s 

first assignment of error.

Grant of Summary Judgment.

Wynne next assigns that the trial court erred in denying her 

motion for summary judgment as to her allegation that she 

was permanently and totally disabled. Related to this argument 

is Wynne’s contention that the trial court erred in admitting 

exhibits 34, 36, 37, and 38.

[5] A party moving for summary judgment has the burden 

to show that no genuine issue of material fact exists and must 

produce sufficient evidence to demonstrate that it is entitled to 

judgment as a matter of law. If the movant meets this burden, 

then the nonmovant must show the existence of a material 

issue of fact that prevents judgment as a matter of law.6

[6-9] When the parties’ evidence would support reasonable, 

contrary inferences on the issue for which a movant seeks 

summary judgment, it is an inappropriate remedy.7 As we 

6 C.E. v. Prairie Fields Family Medicine, 287 Neb. 667, 844 N.W.2d 56 

(2014).

7 Id.
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WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

have stated many times, where reasonable minds could draw 

different conclusions from the facts presented, such presents a 

triable issue of material fact.8 At the summary judgment stage, 

the trial court determines whether the parties are disputing a 

material issue of fact. It does not resolve the factual issues.9

Summary judgment is an extreme remedy and should not be 

used to deprive a litigant of a formal trial if there is a genuine 

issue of material fact.10

This case presents unusual facts. Wynne’s motion did not 

state the basis upon which she sought summary judgment. The 

motion alleged that Wynne “is entitled to a summary judgment 

as a matter of law as to the nature and extent of her injuries 

and her resultant disability.” However, the only basis for such 

a judgment argued at the hearing on the motion was Wynne’s 

theory that she was permanently and totally disabled. Wynne’s 

motion was granted, but on a theory not advanced by Wynne 

at that hearing. Thus, Wynne was the moving party but, as to 

her preferred theory, she was the losing party in that summary 

judgment was not granted finding her to be permanently and 

totally disabled.

Related to the larger question of the trial court’s disposition of her summary judgment motion, Wynne contends 

that certain exhibits containing unsworn statements were inadmissible. Specifically, Wynne argues that exhibit 34, a letter 

from Olson, the occupational therapist who conducted Wynne’s 

FCE; exhibit 36, a rebuttal loss of earning capacity report; 

exhibit 37, a letter from Stricklett amending his earlier loss 

of earning capacity report; and exhibit 38, the FCE report, are 

all inadmissible.

The parties assert that the issue of the admissibility of 

these exhibits presents a conflict between Neb. Rev. Stat. 

§ 48-168 (Reissue 2010) and Workers’ Comp. Ct. R. of Proc. 

8 See id.

9 Id.

10 Id.
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WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

10 (2011). Section 48-168(1) provides that the “Nebraska 

Workers’ Compensation Court shall not be bound by the usual 

common-law or statutory rules of evidence or by any technical 

or formal rules of procedure.” Rule 10 discusses this relaxation 

of the rules of evidence and further directs litigants to Neb. 

Rev. Stat. §§ 25-1330 to 25-1336 (Reissue 2016), which provide the general procedure to follow when summary judgment 

is sought. Wynne’s argument that the exhibits in question are 

inadmissible is based on § 25-1332, which provides in part 

that “[t]he evidence that may be received on a motion for summary judgment includes depositions, answers to interrogatories, admissions, stipulations, and affidavits.”

With this background in mind, we turn to Wynne’s contentions on appeal.

Wynne offered Cheloha’s and Stricklett’s opinions that 

she was permanently and totally disabled. These opinions 

are reflected in exhibit 31, attachments to Wynne’s requests 

for admissions; exhibit 33, Cheloha’s deposition; and exhibit 

36, Stricklett’s loss of earning capacity report. In response 

to Wynne’s motion, Menard offered exhibits 34 and 38, the 

opinion of Olson, and exhibit 35, the opinion of Scott, as well 

as exhibit 37, the opinion of Stricklett in which he revised 

his opinion in light of the results of Olson’s FCE finding that 

Wynne was not permanently and totally disabled.

As an initial matter, we note that exhibit 36, Stricklett’s loss 

of earning capacity report, was offered by Wynne, yet that 

exhibit contains unsworn statements which, under Wynne’s 

logic, would be inadmissible.

But we need not decide the issue of the admissibility of 

these exhibits, because any admission would, on these facts, 

have been harmless. Wynne offered exhibits 31 and 33 in support of her contention that she was permanently and totally 

disabled; this evidence was sufficient to meet her burden of 

a prima facie claim for purposes of summary judgment. In 

response, Menard offered an affidavit from Scott acknowledging his attached report. In that report, Scott opined that 
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299 Nebraska Report

WYNNE v. MENARD, INC.

Cite as 299 Neb. 710

Wynne was not permanently and totally disabled. This was 

sufficient to create a triable issue of material fact and prevent 

judgment as a matter of law.

In this case, though, the trial court weighed the relative 

merits of this evidence and concluded that Wynne was entitled 

to benefits for her scheduled member injuries, but was not permanently and totally disabled. The court erred in so finding, as 

it is not the role of a court in a summary judgment matter to 

resolve factual disputes.11

At the summary judgment stage, the trial court determines 

whether the parties are disputing a material issue of fact. 

It does not resolve the factual issues. Summary judgment 

is an extreme remedy and should not be used to deprive 

a litigant of a formal trial if there is a genuine issue of 

material fact.12

Accordingly, we reverse the grant of summary judgment as 

to the scheduled member injury and the rejection of Wynne’s 

claim of permanent and total disability, and remand the cause 

for further proceedings.

CONCLUSION

The compensation court erred in weighing the evidence 

with respect to Wynne’s motion for summary judgment. 

Accordingly, we reverse the entry of summary judgment and 

remand the cause for further proceedings.

 Reversed and remanded

further proceedi

Funke, J., participating on brief

Wright, J., not participatin

11 See id.

12 Id. at 675, 844 N.W.2d at 63.