- 619 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

Suzy Fentress, formerly known as Suzy Schlick, 

appellee, v. Westin, Inc., and its workers’ 

compensation insurer, LM Insurance 

Corporation, appellants.

___ N.W.2d ___

Filed December 6, 2019. No. S-19-128.

1. Appeal and Error. As a threshold matter, an appellate court must 

determine what assignments of error were properly raised and argued 

on appeal.

2. Rules of the Supreme Court: Appeal and Error. The cross-appeal 

section of an appellate brief must set forth a separate title page, a table 

of contents, a statement of the case, assigned errors, propositions of law, 

and a statement of the facts.

3. ____: ____. When a brief of an appellee fails to present a proper crossappeal pursuant to Neb. Ct. R. App. P. § 2-109 (rev. 2014), an appellate 

court declines to consider its merits.

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

award of the compensation court may be modified, reversed, or set aside 

by an appellate court 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.

5. ____: ____. Determinations by a trial judge of the Workers’ 

Compensation Court will not be disturbed on appeal unless they are 

contrary to law or depend on findings of fact which are clearly wrong in 

light of the evidence.

6. Workers’ Compensation: Statutes: Appeal and Error. The meaning 

of a statute is a question of law, and an appellate court is obligated in 

workers’ compensation cases to make its own determinations as to questions of law.

Nebraska Supreme Court Online Library

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

02/14/2020 12:09 AM CST
- 620 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

7. Workers’ Compensation: Evidence: Appeal and Error. Admission of 

evidence is within the discretion of the Workers’ Compensation Court, 

whose determination in this regard will not be reversed upon appeal 

absent an abuse of discretion.

8. Workers’ Compensation. Whether a plaintiff in a Nebraska workers’ 

compensation case is totally disabled is a question of fact.

9. Workers’ Compensation: Evidence: Appeal and Error. In testing 

the sufficiency of the evidence to support the findings of fact in a 

workers’ compensation case, every controverted fact must be resolved 

in favor of the successful party and the successful party will have 

the benefit of every inference that is reasonably deducible from the 

evidence.

10. Workers’ Compensation: Pretrial Procedure. Neb. Rev. Stat. § 48-177 

(Cum. Supp. 2018) is a voluntary dismissal of a case which removes the 

case from the compensation court’s docket.

11. Workers’ Compensation. Neb. Rev. Stat. § 48-162.03(1) (Cum. Supp. 

2018) grants a compensation court broad authority to rule on any motion 

except motions for new trial and motions for reconsideration.

12. Workers’ Compensation: Evidence. Given the beneficent purposes of 

workers’ compensation law, a compensation court can admit evidence in 

order to investigate cases in the manner it judges is best calculated to 

ascertain the substantial rights of the parties and to carry out justly the 

spirit of the Nebraska Workers’ Compensation Act.

13. Workers’ Compensation: Rules of the Supreme Court. If an 

employer denies compensability for an injury, the employee can avoid 

the chain of referral and has a right pursuant to Neb. Rev. Stat. 

§ 48-120(2)(a) (Cum. Supp. 2018) and Workers’ Comp. Ct. R. of Proc. 

50(A)(6) (2018) to select his or her own physicians for treatment and 

later seek compensation.

14. Workers’ Compensation: Proximate Cause: Proof. In workers’ compensation cases, an independent intervening cause, as the proximate 

cause of an injury, is, generally, a matter of defense and, as such, must 

be proved by the party asserting that defense.

15. Workers’ Compensation. The mere possibility of an independent 

intervening cause does not relieve an employer from liability for an 

employee’s otherwise compensable claim for workers’ compensation 

and benefits.

16. Workers’ Compensation: Proof. A defendant asserting a break in 

causation by an independent intervening cause must prove the break 

in causation by competent medical testimony if the claimed injuries 

are of such a character that scientific testimony is required to prove 

their validity.
- 621 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

17. Workers’ Compensation: Attorney Fees. A determination of an award 

of attorney fees under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2018) must 

be calculated on a case-by-case basis.

Appeal from the Workers’ Compensation Court: J. Michael 

Fitzgerald, Judge. Affirmed.

Robert Kinney-Walker, of Law Offices of James W. Nubel, 

for appellants.

Brynne Holsten Puhl, of Atwood, Holsten, Brown, Deaver & 

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

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Suzy Fentress, plaintiff-appellee, suffered a work-related 

injury in October 2014 while working for Westin, Inc. In 

October 2017, the Workers’ Compensation Court entered an 

award under which she received temporary partial workers’ 

compensation benefits. In 2018, Westin and LM Insurance 

Corporation (collectively Westin), defendants-appellants, filed 

a motion to terminate these temporary indemnity benefits and 

a motion to determine maximum medical improvement (MMI) 

and permanency. On October 22, 2018, the compensation court 

held an evidentiary hearing on Westin’s motion to determine 

MMI. The compensation court admitted significant medical 

evidence, depositions, and testimony. On October 25, after the 

hearing, Westin moved to withdraw its motion to determine 

MMI, but the compensation court disallowed the withdrawal of 

the motion. A subsequent hearing was held on November 19, 

on Fentress’ motion for attorney fees.

In a written order filed January 15, 2019, the compensation 

court made detailed factual findings and, inter alia, awarded 

temporary total disability and attorney fees to Fentress. Westin 

filed an appeal, and Fentress filed a purported cross-appeal. 
- 622 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

As explained below, we determine that the compensation 

court did not err when it overruled Westin’s motion to withdraw its motion to determine MMI; admitted recordings of 

Fentress’ consultation with her physician; found that Fentress 

had achieved MMI with respect to mental health issues but 

not physical health issues; and awarded Fentress medical treatment, temporary total disability, and attorney fees. Accordingly, 

we affirm. Further, as indicated below, we do not consider 

Fentress’ purported cross-appeal.

STATEMENT OF FACTS

On October 4, 2014, Fentress suffered compensable workrelated injuries to her hip and mental health in the course of her 

employment with Westin, Inc., and she was awarded temporary 

partial benefits by the Nebraska Workers’ Compensation Court 

in an October 6, 2017, award. The fact of the initial injury 

and initial award are not challenged in this appeal. Following 

the 2017 award, Fentress continued treatment, including hip 

surgery and pain management treatment targeted to avoid 

substance abuse relapse. Westin eventually filed motions to 

terminate indemnity benefits and to determine MMI and permanency, and in response, Fentress filed a motion requesting 

payment of medical expenses and attorney fees. The compensation court’s January 15, 2019, order on these motions generally 

in favor of Fentress is the subject of this appeal.

The compensation court held a hearing on October 22, 2018, 

limited to the issue of whether Fentress had reached MMI. The 

parties submitted evidence and testimony, and the court took 

judicial notice of the October 6, 2017, award. On November 

19, 2018, the court held a hearing on medical expenses to 

date and Fentress’ request for attorney fees. The compensation 

court dictated its reasoning regarding the award of attorney 

fees to Fentress at the November 19 hearing. Neither hearing 

addressed permanency benefits.

At the October 22, 2018, hearing, the compensation court 

admitted exhibit 85, which included a recording taken by 

Fentress on May 2, 2018, of her consultation with her treating 
- 623 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

physician, Dr. Steven Aviles. Fentress testified in her deposition and at trial that she took her cell phone to the appointments with Dr. Aviles and recorded what they said to each 

other, because she did not want to forget what he said. She 

testified that sometimes when she visited Dr. Aviles, she could 

not remember later what he said to do, so she recorded the 

conversation with her cell phone. At the point the recording 

was made, Fentress had been denying any improvement from 

surgery and Dr. Aviles placed Fentress at MMI and ordered a 

functional capacity evaluation (FCE). The recording includes 

the following exchange:

Dr. Aviles: How does it feel?

Fentress: [inaudible.]

Dr. Aviles: Ok, well. At this point we’ll say the surgery 

failed. Okay. It didn’t work. We tried.

Dr. Aviles: I’ll give you [an FCE] to assess where 

you’re at. Those are going to be permanent restrictions. 

Okay?

Fentress: Okay.

Dr. Aviles: There is no interpretation of the data. 

Whatever they say, is what it is.

Fentress: Right.

Dr. Aviles: Okay. Unless you fail what is called the 

reliability testing. Okay. So if for some reason they think 

that you’re faking it, then it is unreliable, at that point you 

return to work without restrictions. So you have to give 

good effort. Okay? I’m sorry it didn’t work for you.

The comments regarding failed surgery were consistent with 

a prior medical record from March 2018, in which Dr. Aviles 

had opined that “[u]nfortunately it is possible that the surgery 

may not have worked for her.” At the hearing, Westin objected 

to receipt of exhibit 85 and stated the recordings were surreptitious and made without the permission of Dr. Aviles. Westin 

objected on the basis of foundation, hearsay, and late disclosure. The compensation court overruled these objections and 

admitted exhibit 85.
- 624 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

The clinic where Fentress had completed physical therapy 

conducted an FCE on May 22, 2018, approximately 3 weeks 

after the recordings of the consultation with Dr. Aviles. The 

FCE was found to be valid, based on Fentress’ consistent performance and acceptable effort, and recommended a 41-pound 

lifting restriction. The FCE found that Fentress had a loss of 

motion, extension, abduction, adduction, internal rotation, and 

external rotation when the left hip is compared to the right hip, 

as well as decreased strength of the left hip. Prior to her hip 

surgery, Fentress had been working at a position requiring her 

to lift up to 50 pounds.

With regard to work restrictions, Westin disputed the restrictions recommended by the FCE and put on evidence that 

Fentress was released to full-duty work both by Westin’s psychologist and by Dr. Aviles. Dr. Aviles opined that Fentress 

was able to return “to work full duty” and that she did not 

require “any future medical treatment/medications as a result 

of any hip injury.” He wrote, “I normally do not recommend 

restrictions after hip arthroscopy. Previous repair has healed.” 

Subsequently, Westin’s counsel supplied Dr. Aviles with the 

recordings made by Fentress, and Dr. Aviles signed an October 

18, 2018, statement that stated Fentress was a “malingerer” 

who was “simply exaggerating her disability.”

Westin also submitted evidence that Fentress suffered some 

type of fall on June 30, 2018, subsequent to her FCE, which 

was documented in medical records. Westin contends that the 

fall eliminates its liability for the work-related injury. Fentress 

testified that the incident occurred when she was walking in 

a park. She testified, “I caught my left foot on — which is 

my bad leg, on that cement slab. And I basically stumbled. I 

caught myself with that bad leg out of reflex, and it initially 

hurt right away. It wasn’t like super alarming, but it continued 

to hurt for a week.” On July 6, Fentress was evaluated for her 

left hip pain and diagnosed with a left hip strain and referred 

to physical therapy, which she attended from July 31 through 

September 9. The compensation court noted that there are no 
- 625 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

records showing a further examination related to the incident 

at the park.

Fentress testified that her left hip pain continually got worse 

and that she attempted to return to her pain management physician for an appointment in September 2018. Westin did not 

authorize the visit or medications. Fentress was referred by her 

family care physician to a different pain management specialist, Dr. Christopher D. Nelson.

Fentress consulted with Dr. Nelson of Des Moines Orthopedic 

Surgeons. Westin denied coverage for Dr. Nelson’s care of 

Fentress. Dr. Nelson evaluated Fentress and reviewed her 

treatment records. Fentress reported that she had muscle pain 

localized to the “IT band, groin, hip flexor, quadriceps, bursa, 

glute, [sacroiliac joint], and low back,” that she had difficulty 

standing for long periods of time, and that she was “depressed, 

miserable, and angry” as a result of her pain. Dr. Nelson’s 

examination showed a decrease in motion of the left hip.

Dr. Nelson diagnosed intra-articular left hip pain that 

was confirmed by a diagnostic injection. After the injection, 

Fentress had no groin pain from walking and walked without 

a limp. Dr. Nelson opined that Fentress’ “current pain dates 

back to her original injury” and that “[i]f we do not seek 

alternative treatment options, she would have continued lifelong pain with severe limitations.” Because of the relief after 

the pain injection, Dr. Nelson recommended a revision hip 

surgery because the injection indicated a clear source of intraarticular pain.

Following the October 22, 2018, hearing on MMI, the compensation court gave the parties until October 29 to submit 

written closing arguments. On October 25, Westin, identifying 

itself as “Defendants” filed pleadings entitled “Withdrawal 

of Motion to Terminate” and “Withdrawal of Motion to 

Determine,” the substance of which had been the subject of 

the hearing.

The compensation court ruled that Westin would not be permitted to withdraw the issue of whether Fentress had reached 
- 626 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

MMI. In its ruling, the compensation court referred to Neb. 

Rev. Stat. § 48-177(2) (Cum. Supp. 2018). The court ordered 

the parties to submit briefs. Westin filed a written objection to 

the court’s decision disallowing withdrawal of its motions. As 

noted, on November 19, 2018, the compensation court held a 

hearing on Fentress’ motion for attorney fees.

On January 15, 2019, the compensation court filed an order 

in which it made detailed factual findings and awarded temporary total disability and attorney fees to Fentress. With regard 

to injuries to her mental health, the court found Fentress had 

reached MMI but needed future medical treatment and medical 

care to maintain this level. See Neb. Rev. Stat. § 48-120 (Cum. 

Supp. 2018). With regard to the hip injury, the court found 

Fentress had not reached MMI and was entitled to future medical care. See id.

The compensation court explicitly rejected Dr. Aviles’ opinion that Fentress was lying and malingering, because it found 

this later opinion contradicted earlier office notes documenting failed surgery. In its order, the court noted, “As you can 

tell from the statements signed by Dr. Aviles on October 18, 

2018[,] he was very unhappy that someone would record conversations during an examination.”

The compensation court found that Fentress was still in 

pain and that the intra-articular injection Dr. Nelson had given 

Fentress gave her relief and had not been previously attempted. 

The order found Fentress’ treatment with Dr. Nelson was compensable and ordered Westin to compensate Fentress for continued future treatment with Dr. Nelson.

Finally, the court ordered Westin to pay Fentress’ attorney 

fees in the amount of $2,500 incurred, because Westin failed 

to timely make required medical payments. See Neb. Rev. Stat. 

§ 48-125 (Cum. Supp. 2018). The order incorporated the “reason for the determination . . . and the amount due [Fentress] for 

attorney’s fees [as] dictated to the court reporter at the time of 

the hearing on November 19, 2018.”
- 627 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

Westin appeals, and Fentress filed a purported cross-appeal 

challenging the accuracy of certain calculations regarding 

benefits.

ASSIGNMENTS OF ERROR

On appeal, Westin claims that the compensation court erred 

when it (1) denied Westin’s motions to withdraw its previously 

filed motions, (2) admitted recordings taken by Fentress of her 

consultation with her physician, (3) found Fentress’ treatment 

with Dr. Nelson compensable, (4) awarded Fentress temporary 

total disability, (5) failed to analyze whether Fentress suffered 

an independent intervening event, and (6) failed to specifically discuss the reasons supporting its award of attorney fees 

to Fentress.

[1] Fentress attempts to raise a cross-appeal related to 

the calculation of certain temporary benefits and penalties, 

but failed to separately assign errors as the basis of her purported cross-appeal. As a threshold matter, we must determine 

what assignments of error were properly raised and argued on 

appeal. In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 

(2018). Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014) of our 

court rules of appellate practice provides:

Where the brief of appellee presents a cross-appeal, it 

shall be noted on the cover of the brief and it shall be set 

forth in a separate division of the brief. This division shall 

be headed “Brief on Cross-Appeal” and shall be prepared 

in the same manner and under the same rules as the brief 

of appellant.

[2,3] Thus, the cross-appeal section of an appellate brief 

must set forth a separate title page, a table of contents, a statement of the case, assigned errors, propositions of law, and a 

statement of the facts. In re Estate of Graham, supra. Although 

a subheading in Fentress’ brief states that the compensation 

court erred in not ordering payment of underpaid temporary 

indemnity benefits and a waiting-time penalty, this is not an 

acceptable substitute for a proper assignment of error. See 
- 628 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

In re Interest of Samantha L. & Jasmine L., 286 Neb. 778, 

839 N.W.2d 265 (2013). When a brief of an appellee fails to 

present a proper cross-appeal pursuant to § 2-109, as in this 

case, we decline to consider its merits. See In re Estate of 

Graham, supra.

STANDARDS OF REVIEW

[4,5] A judgment, order, or award of the compensation court 

may be modified, reversed, or set aside by an appellate court 

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. Neb. 

Rev. Stat. § 48-185 (Cum. Supp. 2018). Determinations by a 

trial judge of the Workers’ Compensation Court will not be 

disturbed on appeal unless they are contrary to law or depend 

on findings of fact which are clearly wrong in light of the evidence. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 

883 N.W.2d 676 (2016).

[6] The meaning of a statute is a question of law, and an 

appellate court is obligated in workers’ compensation cases to 

make its own determinations as to questions of law. Id.

[7] Admission of evidence is within the discretion of the 

Workers’ Compensation Court, whose determination in this 

regard will not be reversed upon appeal absent an abuse of 

discretion. Tchikobava v. Albatross Express, 293 Neb. 223, 876 

N.W.2d 610 (2016).

[8,9] Whether a worker in a Nebraska workers’ compensation case is totally disabled is a question of fact. Id. In testing 

the sufficiency of the evidence to support the findings of fact 

in a workers’ compensation case, every controverted fact must 

be resolved in favor of the successful party and the successful 

party will have the benefit of every inference that is reasonably 

deducible from the evidence. Id.
- 629 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

ANALYSIS

Denial of Westin’s Motion to Withdraw 

Motion to Determine MMI 

Was Not Error.

Central to Westin’s appeal is its contention that it was 

improper for the compensation court to rule on a motion after 

Westin had attempted to withdraw that motion; Westin specifically refers to its attempted withdrawal of its previously filed 

motion to determine MMI. As noted above, Westin moved 

to withdraw its motion to determine MMI following the evidentiary hearing on this very issue. As explained below, we 

conclude that Westin’s motion to withdraw was subject to the 

ordinary procedure pertaining to motion practice, see Neb. 

Rev. Stat. § 48-162.03(1) (Cum. Supp. 2018), and we review 

the compensation court’s ruling thereon under the standards of 

review recited above. Although our reasoning differs from that 

of the compensation court, we find no error with respect to 

the compensation court’s ruling which denied Westin’s motion 

to withdraw. Accordingly, we find no merit to this assignment 

of error.

In its ruling in which it denied Westin’s motion to withdraw 

its previously filed motion to determine MMI, the compensation court relied on § 48-177. Westin contends that § 48-177 

is the controlling statute, but maintains that the compensation 

court misapplied it.

Section 48-177 is entitled “dismissal.” Section 48-177(1) 

refers to the filing of “a petition or motion,” sometimes referred 

to as “the cause,” and § 48-177(2) provides that a “cause may 

be dismissed . . . (a) by the plaintiff . . . or (b) by the compensation court upon a stipulation.”

Fentress has been denominated “plaintiff” throughout the 

years this case has been pending. And because permanency 

has not been determined, the matter is not closed or dismissed. 

Notwithstanding these facts, the compensation court reasoned 

that for purposes of § 48-177, the “defendants” were “‘the 

plaintiff’” and their “withdrawal of motion” sought a dismissal.
- 630 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

[10] The compensation court’s strained interpretation of the 

words of § 48-177 demonstrates that the statute is not applicable to the motion at issue, which was filed in an ongoing 

case. We have viewed § 48-177 as a voluntary dismissal of a 

case which “removes the case from the [compensation] court’s 

docket.” Knapp v. Village of Beaver City, 273 Neb. 156, 162, 

728 N.W.2d 96, 100 (2007). Westin’s motion did not seek dismissal, nor did the compensation court’s ruling thereon dismiss 

the matter. Given the above, we conclude that § 48-177 does 

not control the analysis.

[11] The motions filed by Westin in this case related to a 

pending case in which a petition had already been filed by 

Fentress. Westin’s motion to determine MMI was encompassed by the motion practice under the broad language of 

§ 48-162.03(1), which allows any party to a suit or proceeding 

to make “any motion” to the compensation court, “including, but not limited to, motions for summary judgment or 

other motions for judgment on the pleadings but not including motions for new trial.” We have stated that this language 

“grants the court broad authority to rule on any motion except 

motions for new trial and motions for reconsideration.” CruzMorales v. Swift Beef Co., 275 Neb. 407, 413, 746 N.W.2d 698, 

703-04 (2008). Withdrawal of a motion under § 48-162.03(1) 

would not remove the case from the compensation court’s 

docket. Compare Knapp, supra (interpreting § 48-177). Instead 

of relying on § 48-177, we believe the ruling denying Westin’s 

motion to withdraw its motion to determine MMI is controlled 

by reference to § 48-162.03(1).

Because Westin’s motion to withdraw its motion for a determination of MMI is governed by ordinary motion practice, we 

apply the standard of review required by § 48-185. We may 

modify, reverse, or set aside such an order only on 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; 
- 631 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

or (4) the findings of fact by the compensation court do not 

support the order or award. Interiano-Lopez v. Tyson Fresh 

Meats, 294 Neb. 586, 883 N.W.2d 676 (2016). In the present 

circumstance, we apply the standard of review numbered “(3)” 

above; that is, we must determine whether the record is sufficient to warrant the order.

Westin contends that it needed additional time for discovery 

after the hearing was held on its motion to determine MMI. The 

record shows that despite a prior award in favor of Fentress, 

Westin was denying compensability and Fentress would have 

been prejudiced by a further delay in receipt of medical and 

disability benefits if Westin’s efforts to postpone a ruling on 

MMI had been successful. Fentress notes that the issue of MMI 

was unresolved by the award which resulted from her initial 

petition. Fentress contends that allowing Westin to withdraw 

its motion would postpone an inevitable determination of MMI 

and require additional court resources and litigation by the parties. We observe that although not controlling, Westin’s motion 

to withdraw its motion to determine MMI after the evidentiary 

hearing on MMI would tend to defeat the prohibition against 

motions for new trials. See § 48-162.03(1). We find sufficient 

evidence in the record to support the compensation court’s 

order which denied Westin’s request to withdraw its motion to 

determine MMI.

Admission of Audio Recording 

Was Not Error.

Westin claims that the compensation court erred when it 

admitted exhibit 85, a recording of the consultation Fentress 

had with her orthopedic doctor, Dr. Aviles, on May 2, 2018. 

Westin contends that this recording is not the best evidence of 

Dr. Aviles’ opinions and that allowing “surreptitious” recordings of health care providers can have a chilling effect on physicians treating workers’ compensation patients, because “[i]t is 

probably safe to assume most physicians don’t appreciate being 

secretly recorded . . . .” Brief for appellants at 15.
- 632 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

[12] The Workers’ Compensation Court is not bound by 

the usual common-law or statutory rules of evidence. Neb. 

Rev. Stat. § 48-168 (Reissue 2010); Bower v. Eaton Corp., 

301 Neb. 311, 918 N.W.2d 249 (2018). Given the beneficent 

purposes of workers’ compensation law, a compensation court 

can admit evidence in order to investigate cases in the manner 

it judges is best calculated to ascertain the substantial rights 

of the parties and to carry out justly the spirit of the Nebraska 

Workers’ Compensation Act. See Bower, supra. As noted 

above, we review the admission of evidence by the Workers’ 

Compensation Court for abuse of discretion. See Tchikobava 

v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (2016). 

And, as related to the current appeal, we recognize that we 

have long approved the admission of surveillance videotapes in 

workers’ compensation cases. Brock v. Dunning, 288 Neb. 909, 

854 N.W.2d 275 (2014). See, e.g., Harpham v. General Cas. 

Co., 232 Neb. 568, 441 N.W.2d 600 (1989).

Here, Fentress laid foundation for exhibit 85 by testifying 

in her deposition and at trial that she took her cell phone to 

the appointments with Dr. Aviles and recorded their exchange, 

because she did not want to forget the content of the visit. 

Fentress explained that she sometimes could not remember 

physicians’ instructions, so she used her cell phone to record 

these conversations and make it easier to remember and, in 

addition, because of a prior substance abuse issue, to share 

with her sponsor. Fentress stated that she set her cell phone 

on a desk, in the open. Westin and Dr. Aviles were able to 

review these recordings, and thus, Westin had the opportunity 

to respond to Fentress’ recording and place responsive contrary 

evidence before the court. In fact, Westin’s evidence, including 

the October 18, 2018, statement of Dr. Aviles, referred to the 

recording in exhibit 85. Thus, exhibit 85 served to establish a 

foundation for subsequent exhibits. Admission of exhibit 85 

was not an abuse of discretion.
- 633 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

Compensability of Dr. Nelson’s 

Fees Was Not Error.

Westin claims the compensation court erred when it ordered 

Westin to pay for past and future medical visits with Dr. 

Nelson, an orthopedic specialist not selected by the employer 

or referred by a physician initially designated under the 

Nebraska Workers’ Compensation Court rules of procedure. 

See Workers’ Comp. Ct. R. of Proc. 50(A)(6) (2018). Westin 

contends that this aspect of the order was an impermissible rule 50 physician change and not compensable. We do 

not agree.

[13] Under § 48-120(2)(e) and rule 50(A)(6), an employee 

must generally follow a chain of referral and provide notice 

to the employer before changing primary treating physicians. 

However, if an employer denies compensability for an injury, 

the employee can avoid the chain of referral and has a right 

pursuant to § 48-120(2)(a) and rule 50(A)(6) to select his or 

her own physicians for treatment and later seek compensation. 

In Clark v. Alegent Health Neb., 285 Neb. 60, 68, 825 N.W.2d 

195, 202 (2013), we considered the consequences of denial of 

compensability and stated:

Larson’s Workers’ Compensation Law discusses the 

circumstances which effectuate an employer’s “denial 

of compensation” under statutory workers’ compensation 

provisions similar to those of Nebraska: “The central rule 

defining the circumstances under which a claimant may 

on his or her own initiative incur compensable medical 

expense may be put as follows: If the employer has sufficient knowledge of the injury to be aware that medical 

treatment is necessary, it has the affirmative and continuing duty to supply medical treatment that is prompt, in 

compliance with the statutory prescription on choice of 

doctors, and adequate; if the employer fails to do so, the 

claimant may make suitable independent arrangements at 

the employer’s expense.”
- 634 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

Although Fentress had a prior award finding she had compensable injuries and was entitled to reasonable and necessary 

future medical care, Westin discontinued additional medical 

care in 2018. Fentress testified that she attempted to return 

to a previously authorized treating physician’s office for an 

appointment in September 2018, but Westin did not authorize 

the visit. There was evidence in the record that Westin had 

denied compensability to physicians within the rule 50(A)(6) 

chain of referral, and thus Fentress could seek potentially compensable treatment with a physician of her choosing. This subsequent treatment was, as we discuss below, properly deemed 

compensable by the compensation court, and therefore, Westin 

was duly found liable for Dr. Nelson’s medical treatment of 

Fentress. The compensation court’s order permitting Fentress 

to continue treatment with Dr. Nelson was not in error.

Award of Temporary Total 

Disability Was Not Error.

Westin claims that the compensation court erred when it 

found Fentress was totally disabled and awarded Fentress temporary total disability benefits. 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. Krause v. Five Star Quality Care, 

301 Neb. 612, 919 N.W.2d 514 (2018). Because we determine 

that the findings of the compensation court were not clearly 

wrong, we reject this assignment of error.

Westin contends that the record lacks adequate evidence 

of work restrictions. However, we find support in the record 

for the compensation court’s determination pertaining to work 

restrictions, including the valid FCE performed by a medical clinic on May 22, 2018, to which the compensation court 

referred in its order. The FCE showed Fentress had the ability 

to work in the medium physical demand level but with specific 

restrictions. Fentress testified that her condition had worsened 

in the time between the FCE and the hearing. Additionally, 
- 635 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

Dr. Nelson had recommended that Fentress have further pain 

injections and surgery and that Fentress use a cane to assist her 

when walking to minimize limping and prevent the development of other issues. We are aware that Westin presented the 

contrary opinion of Dr. Aviles, who stated that Fentress could 

work full duty without restrictions. The compensation court 

specifically disregarded this opinion.

Where the record presents nothing more than conflicting 

medical testimony, this court will not substitute its judgment 

for that of the Workers’ Compensation Court. Hintz v. Farmers 

Co-op Assn., 297 Neb. 903, 902 N.W.2d 131 (2017). Viewed in 

the light most favorable to Fentress, the compensation court’s 

factual determination that Fentress was temporarily totally 

disabled under § 48-185 is supported by the record and not 

clearly wrong.

Independent Intervening Event Did 

Not Relieve Westin of Liability.

Westin claims that the compensation court reversibly erred 

when it failed to find that Fentress suffered an independent 

intervening event that relieved Westin from further liability. 

The compensation court’s factual findings on causation implicitly disagree with this contention, and we reject this assignment 

of error.

[14-16] In workers’ compensation cases, an independent 

intervening cause, as the proximate cause of an injury, is, 

generally, a matter of defense and, as such, must be proved by 

the party asserting that defense. Kerkman v. Weidner Williams 

Roofing Co., 250 Neb. 70, 547 N.W.2d 152 (1996); Mendoza 

v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 

(1987). The mere possibility of an independent intervening 

cause does not relieve an employer from liability for an 

employee’s otherwise compensable claim for workers’ compensation and benefits. Id. A defendant asserting a break in causation by an independent intervening cause must prove the break 

in causation by competent medical testimony if the claimed 
- 636 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

injuries are of such a character that scientific testimony is 

required to prove their validity. See Mendoza, supra.

Although an incident was documented in Fentress’ medical 

reports to the effect that Fentress “tripped . . . but did not fall 

all the way,” Westin did not produce expert opinions showing 

permanent damage caused by Fentress’ June 30, 2018, stumble 

in the park. The compensation court order noted treatment 

given on July 6, discussing the new pain from Fentress’ stumble, and elsewhere, the compensation court found that “[t]here 

are no records submitted showing a further examination related 

to the fall at the park.” Fentress testified that the pain from the 

stumble was of a different nature and “continued to hurt for 

a week.”

By virtue of its findings, the compensation court implicitly 

found against Westin on its defense that Fentress suffered an 

independent intervening cause, when it noted the lack of evidence related thereto and expressly agreed with opinions of 

Dr. Nelson regarding causation and the necessity of continuing medical treatment occasioned by the work-related injury. 

We cannot say that the compensation court’s order authorizing 

temporary total disability benefits was error.

Award of $2,500 Attorney Fees 

to Fentress Was Not Error.

Westin argues that the award of attorney fees to Fentress in 

the requested amount of $2,500 was unreasonable because the 

compensation court did not detail how it arrived at that figure. 

We find no merit to this assignment of error.

The compensation court found that Westin failed to promptly 

pay certain medical payments ordered by the court within 30 

days and that Westin became liable for attorney fees under 

§ 48-125(4)(a). Westin’s claim of error is with regard to the 

amount of the fees.

[17] A determination of an award of attorney fees under 

§ 48-125 must be calculated on a case-by-case basis. Simmons 

v. Precast Haulers, 288 Neb. 480, 849 N.W.2d 117 (2014). 
- 637 -

Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

FENTRESS v. WESTIN, INC.

Cite as 304 Neb. 619

Determining the amount for the fees is necessarily a question 

of fact that requires a factual determination on several factors. Id.

The record shows that Fentress presented evidence of her 

counsel’s efforts to seek payment of the past-due bills, including at least five requests to Westin and counsel’s participation 

in motion practice and a hearing. At the hearing on attorney 

fees, the compensation court stated that “if [the attorney] 

wants $2,500, I really don’t see why she doesn’t get the 2,500 

because of the detail that they give me. I mean, this is unbelievable detail that we receive from this office regularly.” We 

give deference to the factual findings of the compensation 

court. Id. Although it would be the better practice for the 

written order to recite the factors on which it relied, given its 

recitals at the attorney fees hearing in this case, we find that 

the compensation court did not err when it awarded the full 

amount of attorney fees requested by Fentress.

CONCLUSION

For the reasons recited above, the compensation court did 

not err when it denied Westin’s motion to withdraw its previously filed motion to determine MMI after the hearing on 

MMI; admitted Fentress’ recording of the consultation with a 

physician; and awarded Fentress medical treatment, temporary 

total disability, and attorney fees. Accordingly, we affirm.

Affirmed.