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Cite as 301 Neb. 612

Danielle Krause and Laurie Hoyt, as coguardians and

coconservators for Linda Carlson, appellees, v. 

Five Star Quality Care, Inc., also known as

Crestview Healthcare Center, and New Hampshire

Insurance Company, its workers’ compensation

insurance carrier, appellants.

___ N.W.2d ___

Filed November 16, 2018. No. S-18-009.

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. ____: ____. In workers’ compensation cases, an appellate court is obligated to make its own determinations regarding questions of law.

4. Workers’ Compensation: Words and Phrases. In Nebraska, a workers’ compensation claimant may receive permanent or temporary benefits for either partial or total disability. “Temporary” and “permanent” 

refer to the duration of the disability, while “total” and “partial” refer 

to the degree or extent of the diminished employability or loss of earning capacity.

5. Workers’ Compensation. 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.

Nebraska Supreme Court Online Library

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

11/23/2018 12:10 AM CST
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6. 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.

7. 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.

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

medical improvement is a question of fact.

9. 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.

10. Workers’ Compensation: Witnesses. The single judge of the Workers’ 

Compensation Court is the sole judge of the credibility of the witnesses 

and the weight to be given their testimony, even where the issue is not 

one of live testimonial credibility.

11. Workers’ Compensation: Time. Maximum medical improvement 

occurs only at the date a worker reaches maximum medical improvement for all injuries suffered as a result of the work-related injury, 

including psychological injuries.

12. Workers’ Compensation: Mental Health: Proof. In workers’ compensation cases involving allegations of psychological injuries, the burden 

is on the claimant to prove by a preponderance of the evidence that his 

or her disability is the result of an accident arising out of the claimant’s 

employment.

13. Workers’ Compensation. Total disability exists when an injured 

employee is unable to earn wages in either the same or a similar kind 

of work he or she was trained or accustomed to perform or in any other 

kind of work which a person of the employees’ mentality and attainments could perform.

14. ____. Whether a worker is totally and permanently disabled is a question of fact.

15. Workers’ Compensation: Evidence: Appeal and Error. When testing the sufficiency of the evidence to support findings of fact made 

by the Workers’ Compensation Court trial judge, the evidence must be 

considered in the light most favorable to the successful party and the 
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successful party will have the benefit of every inference reasonably 

deducible from the evidence.

16. Workers’ Compensation: Proof. An injured employee seeking permanent disability benefits has the burden of proving that his or her injury 

caused permanent impairment and that this impairment resulted in a loss 

of earning capacity.

17. Workers’ Compensation: Expert Witnesses. While expert witness 

testimony may be necessary to establish the cause of a claimed injury, 

the Workers’ Compensation Court does not need to depend on expert 

testimony to determine the degree of disability.

18. Workers’ Compensation: Testimony. In assessing a claimant’s disability, physical restrictions and impairment ratings are important; but 

once a claimant establishes the cause of disability, the trial judge is not 

limited to this evidence and may also rely on the claimant’s testimony to 

determine the extent of disability.

19. Workers’ Compensation: Words and Phrases. Disability, in contrast 

to impairment, is an economic inquiry.

20. ____: ____. Total disability does not mean a state of absolute helplessness. Rather, it means that because of an injury, (1) a worker cannot earn 

wages in the same or a similar kind of work for which he or she was 

trained or was accustomed to performing or (2) the worker cannot earn 

wages for any other kind of work which a person of his or her mentality 

and attainments could do.

21. Workers’ Compensation. A worker’s earning power after a physical 

injury is often constricted by mental capacity and education, and it is a 

matter of common observation that a worker whose sole stock in trade 

has been the capacity to perform physical movements, and whose ability 

to make those movements has been impaired by injury, is under a severe 

disadvantage in acquiring a dependable new means of livelihood.

22. Workers’ Compensation: Evidence: Appeal and Error. If the record 

contains evidence to substantiate the factual conclusions reached by the 

trial judge in workers’ compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court.

23. Workers’ Compensation. Whether an employee who has a compensable permanent total disability can, consistent with the Nebraska 

Workers’ Compensation Act, be deprived of ongoing total disability 

benefits because of a subsequent noncompensable injury that independently causes permanent disability presents a question of law.

24. ____. The Nebraska Workers’ Compensation Act should be construed 

liberally to carry out its spirit and beneficent purposes.

25 ____. Where it is shown that a worker has a condition attributable to 

his or her employment that alone would totally disable him or her, it is 
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immaterial for the purposes of the workers’ compensation statutes that 

he or she may suffer from other independent and concurrent ailments 

which would by themselves be sufficient to disable him or her.

Appeal from the Workers’ Compensation Court: John R. 

Hoffert, Judge. Affirmed.

Patrick J. Mack, of Hennessy & Roach, P.C., for appellants.

Daniel A. Fix, of Fix Law Office, P.C., L.L.O., for appellees.

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

Papik, and Freudenberg, JJ.

Stacy, J.

Linda Carlson was injured during the course and scope of 

her employment and filed a petition in Workers’ Compensation 

Court seeking temporary and permanent disability benefits. 

Approximately 3 weeks after the petition was filed, Carlson 

suffered a catastrophic stroke which left her largely incapacitated. The stroke was unrelated to the work injury or treatment. 

The compensation court found Carlson had reached maximum 

medical improvement prior to her stroke and awarded permanent total disability benefits. The employer and its workers’ 

compensation insurance carrier appeal, challenging the date of 

maximum medical improvement and the award of permanent 

total disability. The employer also argues that after Carlson’s 

stroke, she was no longer entitled to permanent total disability 

benefits. We affirm.

I. FACTS

1. Background

The parties stipulated to many of the relevant facts. Carlson 

was injured on February 17, 2013, during the course and scope 

of her employment with Five Star Quality Care, Inc., also 

known as Crestview Healthcare Center. Carlson was working 

as a housekeeper when she slipped and fell, fracturing her 

right femur.
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Carlson filed a petition in the compensation court in 

September 2015. On October 14, 2015, she suffered a catastrophic stroke that was wholly unrelated to the work-related 

injury and its subsequent treatment. The compensation court 

granted the parties’ joint motion to substitute Carlson’s coguardians and coconservators as plaintiffs.

2. Trial Evidence

Trial was held on November 7, 2017. Carlson appeared, 

but did not testify, because her stroke left her unable to communicate verbally. The only witness to testify was one of 

Carlson’s coconservators, who had known Carlson for many 

years. Medical evidence was submitted, and the parties offered 

a comprehensive joint stipulation addressing most of the relevant facts concerning Carlson’s work accident and subsequent treatment.

(a) Work Injury and Treatment

The evidence showed that the day after Carlson’s fall, three 

pins were surgically inserted in her hip. Carlson underwent 

subsequent physical therapy and treatment and, in April 2013, 

was authorized to return to work in a “[s]edentary/[l]ight” 

capacity. Carlson continued to struggle with significant pain, 

and on June 14, Dr. Matthew Reckmeyer recommended a total 

hip arthroplasty and opined Carlson could not return to work 

in any capacity. Reckmeyer performed the hip arthroplasty 

on June 25. Carlson did not return to work after June 14, and 

she continued to report significant pain and limitations up to 

the date of her stroke. She last sought treatment for her work 

injury on September 15, 2015. Five Star Quality Care and 

New Hampshire Insurance Company, Five Star’s workers’ 

compensation insurance carrier (collectively Five Star), have 

paid all of Carlson’s medical bills related to the work accident 

and injury and paid temporary partial disability benefits for a 

period of time.
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(b) Medical Evidence

Medical examinations were performed on Carlson in 

September 2014, April 2015, and October 2015. The September 

2014 examination was performed by Dr. David Diamant, who 

was retained by Five Star. Diamant opined Carlson had not 

reached maximum medical improvement at that time, because 

she could possibly benefit from additional treatment to her 

right sacroiliac joint. Diamant also performed a second medical examination of Carlson in April 2015. At that time, he did 

not make an express finding of maximum medical improvement. He did, however, determine Carlson had suffered a 

30-percent body-as-a-whole impairment. He also opined that 

Carlson would likely need “continuing maintenance care” and 

recommended she could work at “sedentary duty capacity.”

Dr. Morgan LaHolt, also retained by Five Star, conducted the 

October 8, 2015, medical examination. LaHolt found Carlson 

had reached maximum medical improvement as of that date 

for “any and all conditions” “related to [the] work accident 

injury of February of 2013.” Notes from LaHolt’s physical 

examination indicate Carlson was able to rise from a seating 

position using a cane. She reported pain with hip flexion, hip 

abduction, hip adduction, knee extension, and knee flexion. 

Carlson’s pain limited her from engaging in range-of-motion 

testing. Carlson told LaHolt that she could walk for only 50 to 

75 feet and that her pain increased with turns and activities that 

required bending.

LaHolt found Carlson had a 37-percent lower extremity 

impairment and opined it was “likely that . . . Carlson will 

have significant permanent physical restrictions as a result of 

her injury.” LaHolt’s report rejected a suggestion from one of 

Carlson’s treating physicians regarding placement of a spinal 

cord stimulator to manage her pain, opining that the “likelihood of any type of functional or symptomatic improvement” 

from such treatment was “extremely low.”

As noted, Reckmeyer was one of Carlson’s treating physicians. He first examined Carlson in June 2013 and performed 
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the hip arthroplasty on June 25, 2013. He then saw Carlson 

for several followup appointments. Reckmeyer’s last examination of Carlson occurred on October 24, 2014. His report 

of the same date stated Carlson had a “smoldering dysfunction” with her right hip and ambulated with a cane. He opined 

the hip replacement appeared stable and well aligned and 

recommended Carlson pursue treatment for sacroiliac joint 

problems.

Pursuant to a request from Carlson’s counsel, Reckmeyer 

authored a subsequent report on July 17, 2017, which opined:

Carlson has been under my care for treatment of a work 

related left hip fracture that she sustained on or about 

February 17, 2013. She required a repair of her fracture 

and subsequently a total hip replacement. As of her last 

office visit October 24, 2014, she had reached a point of 

medical stability. She required the use of an ambulatory 

assistive device and would likely continue to require that. 

At that time, it was felt that she would be able to perform 

restricted activity work which would include capacity in 

the sedentary[-]light category. She would be limited from 

climbing stairs and restricted from no ladders, no kneeling or no squatting. Very limited walking and only light 

(10 #) lifting. Some reaching would be tolerated. These 

would be lifelong restrictions.

Counsel for Five Star then obtained a further report from 

LaHolt, who examined Reckmeyer’s reports of October 24, 

2014, and July 17, 2017, and opined:

After a review of the medical record, it does not appear 

that . . . Carlson reached MMI as of her final visit 

with Dr. Reckmeyer. Additional work up and treatment 

would not be expected to be necessary for an individual who has reached maximum medical improvement. . . . Instead, I would place . . . Carlson’s date of 

maximum medical improvement as of October 8, 2015, 

the date of my independent medical examination. At the 

time of this encounter, . . . Carlson had undergone all 
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reasonable medical treatment and work up of her work 

related condition.

(c) Testimony of Coguardian 

and Coconservator

Carlson’s coguardian and coconservator, Laurie Hoyt, testified she had known Carlson for 25 years and regularly spent 

time with her both before and after the work accident. Hoyt 

observed a significant decline in Carlson’s physical ability 

after the work accident; she became sedentary, required a 

cane to walk, no longer participated in her prior activities or 

hobbies, and complained “a lot” about pain. Hoyt also testified about Carlson’s educational background and her prior 

work experience. Carlson had completed high school and had 

worked (1) in a road construction crew, performing duties 

such as driving a blacktop roller and flagging traffic; (2) in the 

food industry, loading, hauling, and unloading large containers of food; and (3) in hotel housekeeping. This vocational 

history was also supported by the medical reports. Additional 

evidence in the record showed that before her stroke, Carlson 

had some “[u]nderlying elevated symptoms of depression,” 

was “mildly impaired” intellectually/cognitively, and had a 

full-scale IQ of 69.

3. Compensation Court Findings

The Workers’ Compensation Court found Carlson reached 

maximum medical improvement on October 8, 2015 (the date 

of her medical examination by LaHolt) and awarded temporary disability benefits up to that date. The court went on 

to find that from and after the date of maximum medical 

improvement, Carlson was permanently and totally disabled 

as a result of her work injury. In making this finding, the 

court acknowledged that no vocational rehabilitation counselor 

had offered an opinion on Carlson’s loss of earning capacity. 

However, the court concluded it could find a loss of earning 

capacity based on evidence of permanent impairment and/or 
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restrictions. Thus, the court relied on Reckmeyer’s 2017 report, 

Diamant’s impairment rating, and LaHolt’s observations of 

Carlson’s restrictions on October 8, 2015. It also noted the evidence of Carlson’s education, work history, and cognitive abilities. Ultimately, the compensation court concluded: “Giving 

due consideration to . . . Carlson’s educational background, 

vocational/employment history, self-described physical limitations as well as the restrictions imposed upon her by medical 

providers . . . , the Court finds that . . . Carlson has been rendered permanently and totally disabled as a result of her work 

accident of February 17, 2013.”

The compensation court awarded Carlson permanent total 

disability benefits “for so long as she remains permanently and 

totally disabled.” The court rejected Five Star’s contention that 

the occurrence of the stroke relieved Five Star of the ongoing 

responsibility to pay total disability benefits. Five Star appeals. 

We moved this case to our docket on our own motion.1

II. ASSIGNMENTS OF ERROR

Five Star assigns, restated and consolidated, that the compensation court erred in (1) finding Carlson reached maximum 

medical improvement on October 8, 2015; (2) finding Carlson 

was permanently and totally disabled; and (3) finding the 

stroke had no impact on Carlson’s entitlement to ongoing permanent total disability benefits.

III. 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 

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 

1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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award; or (4) the findings of fact by the compensation court do 

not support the order or award.2

[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

[3] In workers’ compensation cases, an appellate court is 

obligated to make its own determinations regarding questions 

of law.4

IV. ANALYSIS

1. Date of Maximum

Medical Improvement

[4] The parties dispute the date on which Carlson attained 

maximum medical improvement from her work injury. This 

date is important because it marks the point at which temporary disability benefits end and entitlement to permanent disability benefits can be ascertained.5

 In Nebraska, a workers’ 

compensation claimant may receive permanent or temporary 

benefits for either partial or total disability.6 “Temporary” and 

“permanent” refer to the duration of the disability, while “total” 

and “partial” refer to the degree or extent of the diminished 

employability or loss of earning capacity.7

[5-7] Temporary disability benefits under the Nebraska 

Workers’ Compensation Act are discontinued at the point of 

2 Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018); Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2016).

3 Id.

4 Kohout v. Bennett Constr., 296 Neb. 608, 894 N.W.2d 821 (2017); Money 

v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

5 See Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865 

N.W.2d 371 (2015). See, also, Neb. Rev. Stat. § 48-121(3) (Reissue 2010) 

(“compensation for temporary disability shall cease as soon as the extent 

of the permanent disability is ascertainable”).

6 See id.

7 Gardner, supra note 5.
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maximum medical improvement, because a disability cannot 

be both temporary and permanent at the same time.8 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.9 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.10

[8,9] Generally, whether a workers’ compensation claimant 

has reached maximum medical improvement is a question of 

fact.11 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 we give the successful party 

the benefit of every inference reasonably deducible from the 

evidence.12

In her petition, Carlson alleged that the “nature and extent 

of the injury sustained is right femur fracture, post total 

hip arthroplasty, chronic pain syndrome, gait disturbance and 

depressive disorder.” The parties stipulated that she sustained 

a compensable injury arising out of the February 17, 2013, 

accident and that she underwent a “percutaneous screw fixation and subsequent total hip arthroplasty as a result of the 

femur fracture sustained” in the work accident. The stipulation 

is silent regarding her chronic pain syndrome, gait disturbance, 

8 Id. See, also, § 48-121(3).

9 Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).

10 Gardner, supra note 5; § 48-121.

11 Stacy, supra note 9; Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 

707 N.W.2d 232 (2005).

12 See, Gardner, supra note 5; Money, supra note 4.
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and depressive disorder. There is no other evidence of causation in the record.

[10] Five Star argues the compensation court erred in relying 

on the opinions of Reckmeyer and LaHolt in finding Carlson 

reached maximum medical improvement on October 8, 2015. 

With respect to the medical opinions of Reckmeyer, Five Star 

presents several arguments, all of which amount to attacks on 

the weight and credibility of Reckmeyer’s July 2017 report. 

The single judge of the Workers’ Compensation Court is the 

sole judge of the credibility of the witnesses and the weight 

to be given their testimony, even where the issue is not one 

of live testimonial credibility.13 Here, the compensation judge 

expressly found the opinions offered by Reckmeyer to be persuasive, and Five Star’s appellate arguments to the contrary are 

without merit.

With respect to LaHolt’s opinion, Five Star concedes his 

report is “sufficient to support a finding of maximum medical 

improvement from a physical medicine prospective.”14 Indeed, 

LaHolt’s October 8, 2015, report expressly stated Carlson had 

reached maximum medical improvement as of that date for 

“any and all conditions” “related to [the] work accident injury 

of February of 2013.” But Five Star argues there was a psychological aspect of Carlson’s injury that was not addressed by 

LaHolt. Some additional background is helpful to understand 

this argument.

Dr. Robert Arias, a neuropsychologist, examined Carlson 

in August 2015 on a referral from her treating physician 

to determine whether she was a good candidate for a spinal cord stimulator to help with her pain management. After 

his examination, Arias diagnosed Carlson with “Unspecified 

Neurocognitive Disorder,” “Unspecified Depressive Disorder,” 

13 Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 

N.W.2d 154 (2013); Swanson v. Park Place Automotive, 267 Neb. 133, 

672 N.W.2d 405 (2003).

14 Brief for appellants at 18.
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and “Intellectual Disability, Mild.” His report made no attempt 

to relate any of these diagnoses to Carlson’s work accident 

injury or related treatment.

[11] Now, Five Star relies on Arias’ diagnoses to suggest 

that its own retained expert, LaHolt, failed to adequately consider Carlson’s “psychological injuries” when he concluded 

on October 8, 2015, that she had reached maximum medical 

improvement for any and all conditions related to the work 

injury. Five Star’s argument is based on the proposition that 

maximum medical improvement occurs only at the date a 

worker reaches maximum medical improvement for all injuries 

suffered as a result of the work-related injury, including psychological injuries.15

[12] In workers’ compensation cases involving allegations of 

psychological injuries, the burden is on the claimant to prove 

by a preponderance of the evidence that his or her disability is 

the result of an accident arising out of the claimant’s employment.16 Here, the burden was on Carlson to prove any psychological injuries were caused by the work-related accident.

Although Carlson’s complaint alleged depression as one of 

the accident-related injuries, she never attempted to prove a 

causal relationship between her depression and the work accident. And although Arias’ report noted Carlson suffered from 

unspecified neurocognitive disorder and unspecified depressive disorder, he did not opine that either disorder was caused 

by the February 17, 2013, accident or related treatment. The 

parties’ stipulation did not reference either disorder, and there 

is no other evidence in the record suggesting that either disorder, or any other psychological condition, was caused by the 

February 17 accident and resulting treatment.

On this record, evidence of psychological injury was simply 

not a factor in the compensation court’s finding of maximum 

15 See Rodriguez, supra note 11.

16 Worline v. ABB/Alstom Power Int. CE Servs., 272 Neb. 797, 725 N.W.2d 

148 (2006).
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medical improvement. Consequently, Five Star’s concern that 

LaHolt’s report did not “attempt to comment on the psychological or neuropsychological aspects”17 of Carlson’s treatment 

with Arias is of no moment. The trial court did not clearly err 

in finding Carlson had reached maximum medical improvement on October 8, 2015, for all injuries suffered as a result of 

the work accident.

2. Permanent Total Disability

[13,14] After determining the date of maximum medical 

improvement, the compensation court found that as of that 

date, Carlson was permanently and totally disabled as a result 

of the work accident and injury. Total disability exists when an 

injured employee is unable to earn wages in either the same 

or a similar kind of work he or she was trained or accustomed 

to perform or in any other kind of work which a person of 

the employees’ mentality and attainments could perform.18

Whether a worker is totally and permanently disabled is a 

question of fact.19

[15] Five Star argues there was insufficient evidence in 

the record to support the court’s factual finding that Carlson 

was permanently and totally disabled. When testing the sufficiency of the evidence to support findings of fact made by the 

Workers’ Compensation Court trial judge, the evidence must be 

considered in the light most favorable to the successful party 

and the successful party will have the benefit of every inference reasonably deducible from the evidence.20

[16,17] An injured employee seeking permanent disability 

benefits has the burden of proving that his or her injury caused 

17 Brief for appellants at 18.

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

Money, supra note 4.

19 See id.

20 Nichols v. Fairway Bldg. Prod., 294 Neb. 657, 884 N.W.2d 124 (2016); 

Tchikobava, supra note 18.
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permanent impairment and that this impairment resulted in 

a loss of earning capacity.21 While expert witness testimony 

may be necessary to establish the cause of a claimed injury, 

the Workers’ Compensation Court does not need to depend on 

expert testimony to determine the degree of disability.22 Here, 

the court based its finding of permanent and total disability 

on the uncontroverted medical evidence of permanent impairment and lifelong restrictions, as well as testimony regarding 

Carlson’s self-described physical limitations and evidence of 

her educational background, vocational history, and mental 

ability before the stroke.

Before addressing this evidence, we note Five Star makes 

much of the fact that presumably due to the timing of Carlson’s 

stroke, no expert performed additional medical assessments of 

Carlson’s impairment or restrictions after the chronological date 

of maximum medical improvement—October 8, 2015. Five 

Star argues that because permanent impairment and permanent 

restrictions cannot be ascertained until after maximum medical 

improvement is reached,23 the lack of such assessments after 

October 8 resulted in insufficient evidence upon which the trial 

court could make a determination of permanent disability.

This argument, however, is based only on the chronological dates of the relevant assessments and ignores their content. In finding Carlson totally and permanently disabled, the 

trial court specifically relied on the medical opinions of both 

Reckmeyer and LaHolt. Temporally, Reckmeyer’s opinion was 

rendered after maximum medical improvement was reached, 

because his report was authored in July 2017. But what is more 

important, in that report, Reckmeyer opined that as of October 

24, 2014, Carlson would have “lifelong restrictions” requiring 

the use of an ambulatory assistive device and limiting her to 

21 Gardner, supra note 5.

22 See Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).

23 See Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015).
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sedentary-light work. Reckmeyer specified that Carlson would 

also have “lifelong” limitations on her ability to climb stairs, 

walk, climb ladders, kneel, squat, and lift. Similarly, LaHolt 

found in October 2015, days before her stroke, that Carlson 

would have “significant permanent physical restrictions.” In 

addition, Diamant assessed Carlson with a 30-percent bodyas-a-whole impairment, also before her stroke. No evidence 

was offered to the contrary. The evidence in the record was 

sufficient to support the compensation court’s finding that 

prior to her stroke, Carlson suffered significant and severe 

permanent impairment and restrictions as a result of her workrelated accident.

Five Star does not specifically contest the compensation 

court’s finding that based on her permanent impairments and 

restrictions, Carlson was permanently and totally disabled as a 

result of the work accident of February 17, 2013. But for the 

sake of completeness, we note the record supports this factual 

finding. In addition to the medical assessments of permanent, 

lifelong restrictions and physical impairment, the record also 

contains evidence of Carlson’s prior work history, education, 

and cognitive ability.

[18-20] In assessing a claimant’s disability, physical restrictions and impairment ratings are important; but once the 

claimant establishes the cause of disability, the trial judge is 

not limited to this evidence and may also rely on the claimant’s 

testimony to determine the extent of disability.24 Disability, in 

contrast to impairment, is an economic inquiry.25 And total 

disability does not mean a state of absolute helplessness.26

Rather, it means that because of an injury, (1) a worker cannot 

earn wages in the same or a similar kind of work for which he 

24 Money, supra note 4.

25 Id.

26 Gardner, supra note 5; Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 

(2015); Money, supra note 4.
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or she was trained or was accustomed to performing or (2) the 

worker cannot earn wages for any other kind of work which a 

person of his or her mentality and attainments could do.27

Carlson had a high school education, and her prior work 

experience was in vocations which required significant mobility and which were incompatible with the lifelong restrictions 

imposed upon her as a result of her work-related injury. She 

was approximately 62 years old at the time of her stroke. 

Carlson had a mild intellectual disability and her full-scale IQ 

was 69.

[21] We have observed that a worker’s earning power after 

a physical injury is often constricted by mental capacity and 

education, and “‘“it is a matter of common observation that 

a [worker] whose sole stock in trade has been the capacity 

to perform physical movements, and whose ability to make 

those movements has been impaired by injury, is under a 

severe disadvantage in acquiring a dependable new means of 

livelihood.”’”28 Here, the record contains medical evidence 

detailing permanent and significant restrictions that resulted 

from Carlson’s work injury, as well as information about her 

work history, education, and mental and physical abilities.

[22] If the record contains evidence to substantiate the 

factual conclusions reached by the trial judge in workers’ 

compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation 

court.29 Considering the evidence in the light most favorable to 

Carlson, we find the record supports the compensation court’s 

determination that as of October 8, 2015, she was permanently and totally disabled as a result of her work accident of 

February 17, 2013.

27 See id. See, also, Zwiener v. Becton Dickinson-East, 285 Neb. 735, 829 

N.W.2d 113 (2013).

28 Money, supra note 4, 275 Neb. at 621, 748 N.W.2d at 65.

29 Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).
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3. Effect of Stroke on Benefits

Finally, Five Star argues that even if Carlson reached maximum medical improvement before the date of her stroke and 

was permanently and totally disabled at that time, the subsequent stroke left her completely incapacitated and unable to 

care for herself. Five Star therefore asks us to conclude the 

stroke “cut off ”30 Carlson’s entitlement to permanent total disability benefits.

[23] We have not previously considered whether an 

employee who has a compensable permanent total disability 

can, consistent with the Nebraska Workers’ Compensation Act, 

be deprived of ongoing total disability benefits because of a 

subsequent noncompensable injury that independently causes 

permanent disability. We conclude this presents a question 

of law.

The only legal support Five Star offers for its position that 

Carlson’s permanent total disability benefits should end after 

her stroke is a single sentence in § 48-121(1). Section 48-121(1) 

sets out the schedule of compensation for total disability, and 

provides: “Nothing in this subdivision shall require payment of 

compensation after disability shall cease.” Five Star’s theory 

is that the permanent total disability caused by Carlson’s work 

injury “ceased” on the date of her stroke, apparently reasoning that if she had not already been permanently and totally 

disabled from the work accident, the stroke would have rendered her so. Five Star suggests Carlson’s permanent total 

disability was either subsumed, or canceled out, by the effects 

of her subsequent stroke. It analogizes the situation to the nonwork-related death of an employee receiving permanent total 

disability payments and suggests that if “Carlson had passed 

away from complications to her stroke, her entitlement to . . . 

permanent and total disability benefits would be cut off on the 

date of her unfortunate passing.”31

30 Brief for appellants at 27.

31 Id.
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We do not find this death analogy to be factually or legally 

supported. Carlson survived her stroke, and we see nothing in the record to support Five Star’s contention that her 

work-related disability ceased once she had the stroke. To the 

contrary, the evidence supports that she was permanently and 

totally disabled from a work accident injury at the time she had 

her stroke, and she remained so afterward. Because Carlson’s 

permanent total disability did not cease as a result of the 

stroke, Five Star’s reliance on § 48-121(1) is misplaced.

Although Five Star has not framed its argument as one seeking to modify an award, Five Star basically seeks to terminate 

Carlson’s award of permanent total disability benefits due 

solely to her subsequent stroke. Nebraska’s workers’ compensation statutes allow an award to be modified “on the ground 

of increase or decrease of incapacity due solely to the injury.”32

But Five Star is claiming the change in disability was due to 

the stroke, not the work injury, so the modification statute does 

not support Five Star’s requested relief either.

[24] The Nebraska Workers’ Compensation Act should be 

construed liberally to carry out its spirit and beneficent purposes.33 Five Star’s position is contrary to the beneficent 

purpose of the act, because it would result in Carlson’s entitlement to permanent total disability benefits for a work-related 

injury being cut off by a completely unrelated event.

Five Star directs us to no cases from this jurisdiction or 

elsewhere that support its position. There is very little precedent on this issue, but a few other courts have considered and 

rejected the suggestion that an employee’s permanent total disability benefits can be canceled out if the employee suffers a 

subsequent independent injury that also causes disability.

Kentucky addressed a factual situation similar to the 

instant case in Beth-Elkhorn Corporation v. Dotson.

34 In 

32 Neb. Rev. Stat. § 48-141 (Reissue 2010) (emphasis supplied).

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

34 Beth-Elkhorn Corporation v. Dotson, 428 S.W.2d 32 (Ky. App. 1968).
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that case, the worker had been a coal miner for more than 

40 years when he suffered a heart attack after finishing his 

workday. Medical evidence established that the worker suffered from pneumoconiosis as a result of his employment 

and that the pneumoconiosis left him permanently and totally 

disabled. Medical evidence also established that the nonwork-related heart attack left the worker totally disabled. The 

court affirmed an award of total disability benefits, reasoning 

that “‘any disability an employe[e] sustains in the course of 

and arising out of his employment shall [not] be cancelled 

out, for compensation purposes, by disability from another 

cause.’”35 This rationale was based on Daugherty v. Watts,

36

an earlier case decided by the Kentucky Court of Appeals. 

Daugherty expressly held that “if a workman has suffered a 

compensable injury he will not be deprived of compensation 

merely because of the existence of an independent, concurrent 

cause of disability.”37

[25] One legal commentator has cited to Daugherty for the 

following general proposition:

Where it is shown that a worker has a condition attributable to his or her employment that alone would totally 

disable him or her, it is immaterial for the purposes of 

the workers’ compensation statute[s] that he or she may 

suffer from other independent and concurrent ailments 

which would by themselves be sufficient to disable him 

or her.38

This proposition is consistent with the beneficent purpose of 

the Nebraska Workers’ Compensation Act.

Carlson was permanently and totally disabled as a result of 

a work accident and injury. The fact that she subsequently suffered a stroke that was neither medically nor causally related, 

35 Id. at 34.

36 Daugherty v. Watts, 419 S.W.2d 137 (Ky. App. 1967).

37 Id. at 138.

38 82 Am. Jur. 2d Workers’ Compensation § 353 at 383-84 (2013).
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does not relieve Five Star of its obligation to pay Carlson permanent total disability benefits under the Nebraska Workers’ 

Compensation Act.

V. CONCLUSION

For the foregoing reasons, the compensation court did not 

err in finding Carlson (1) reached maximum medical improvement on October 8, 2015; (2) was permanently and totally 

disabled as of that date as a result of her work-related accident; 

and (3) remained permanently and totally disabled as a result 

of her work-related accident after her stroke. We affirm the 

judgment of the compensation court.

Affirmed.