Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2018 09:09 AM CDT




                                                       - 710 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                            WYNNE v. MENARD, INC.
                                              Cite as 299 Neb. 710




                         M achelle Wynne, appellant, v. Menard, Inc., and
                           Praetorian Insurance Company, its workers’
                            compensation insurance carrier, apepllees.
                                                  ___ 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 ver-
                     dict 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.
                                     - 711 -
              Nebraska Supreme Court A dvance Sheets
                      299 Nebraska R eports
                          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 conclu-
     sions from the facts presented, such presents a triable issue of mate-
     rial 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 proceedings.
   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, JJ., and
Luther and O’Gorman, District Judges.
   Heavican, C.J.
                      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 sus-
tained 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.
                              - 712 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                      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 treat-
ment 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, kneel-
ing, balancing, and climbing ladders or stairs infrequently. The
FCE included no restrictions on sitting.
   On February 8, 2017, Dr. Michelle Cheloha, Wynne’s fam-
ily 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:
                             - 713 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                     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 conclu-
sive 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
                                   - 714 -
               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                          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 evi-
dence in the record to warrant the making of the order, judg-
ment, 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 discre-
tion 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 gen-
uine issue as to any material fact or as to the ultimate infer-
ences 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 perma-
nently and totally disabled. Menard disagrees, contending it
admitted that certain experts opined that Wynne was perma-
nently 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).
                                   - 715 -
               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                          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 state-
ments, but noted that Cheloha did not term Wynne’s restric-
tions as permanent.
   We reject Wynne’s attempt to characterize Menard’s admis-
sions 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 underly-
ing 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.
                                 - 716 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                         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 dispo-
sition of her summary judgment motion, Wynne contends
that certain exhibits containing unsworn statements were inad-
missible. 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.
                              - 717 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                      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 pro-
vide 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 sum-
mary judgment includes depositions, answers to interrogato-
ries, admissions, stipulations, and affidavits.”
   With this background in mind, we turn to Wynne’s conten-
tions 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 sup-
port 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 acknowl-
edging his attached report. In that report, Scott opined that
                                      - 718 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                            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 per-
manently 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.
	R eversed and remanded for
	                                further proceedings.
  Funke, J., participating on briefs.
  Wright, J., not participating.

11	
      See id.
12	
      Id. at 675, 844 N.W.2d at 63.
