Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/06/2018 08:12 AM CST




                                                        - 527 -
                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                               ESCOBAR v. JBS USA
                                               Cite as 25 Neb. App. 527




                              Gerson Saul Del Cid Escobar, appellee and
                                cross-appellant, v. JBS USA, appellant
                                          and cross-appellee.
                                                    ___ N.W.2d ___

                                        Filed February 6, 2018.   No. A-17-227.

                1.	 Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
                     Stat. § 48-185 (Cum. Supp. 2016), an appellate court may only modify,
                     reverse, or set aside a Workers’ Compensation Court decision when (1)
                     the compensation court acted without or in excess of its powers; (2) the
                     judgment, order, or award was procured by fraud; (3) there is not suf-
                     ficient competent evidence in the record to warrant the making of the
                     order, judgment, or award; or (4) the findings of fact by the compensa-
                     tion court do not support the order or award.
                2.	____: ____. 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.
                3.	 ____: ____. Factual determinations by a workers’ compensation trial
                     judge have the effect of a jury verdict and will not be disturbed unless
                     they are clearly wrong.
                 4.	 ____: ____. With respect to questions of law in workers’ compensation
                     cases, an appellate court is obligated to make its own determination.
                5.	 Workers’ Compensation: Evidence: Proof. When an employee in
                     a workers’ compensation case presents evidence of medical expenses
                     resulting from injury, he or she has made out a prima facie case of fair-
                     ness and reasonableness, causing the burden to shift to the employer to
                     adduce evidence that the expenses are not fair and reasonable.
                6.	 Workers’ Compensation: Expert Witnesses: Records. Outside expert
                     testimony is not required to establish a causal link between the work-
                     related injury and a worker’s hospitalization where the records establish
                     a relationship to the work-related injury.
                                     - 528 -
            Nebraska Court of A ppeals A dvance Sheets
                 25 Nebraska A ppellate R eports
                             ESCOBAR v. JBS USA
                             Cite as 25 Neb. App. 527

 7.	 Workers’ Compensation. Whether medical treatment is reasonable
      or necessary to treat a workers’ compensation claimant’s compensable
      injury is a question of fact.
 8.	 Workers’ Compensation: Proof. The burden rests on the employee to
      make out a prima facie case that the medical treatment the employee
      received is a result of a work-related injury.
  9.	 ____: ____. Once a prima facie case is established, the burden shifts to
      the employer to rebut the employee’s evidence.
10.	 Workers’ Compensation: Words and Phrases. Temporary disability
      is the period during which the employee is submitting to treatment, is
      convalescing, is suffering from the injury, and is unable to work because
      of the accident.
11.	 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 employee’s mentality and attain-
      ments could perform.
12.	 ____. Whether a plaintiff in a Nebraska workers’ compensation case is
      totally disabled is a question of fact.
13.	 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.
14.	 Workers’ Compensation. As the trier of fact, the Workers’ Compensation
      Court is the sole judge of the credibility of witnesses and the weight to
      be given their testimony.
15.	 Workers’ Compensation: Expert Witnesses. If the nature and effect
      of a claimant’s injury are not plainly apparent, then the claimant must
      provide expert medical testimony showing a causal connection between
      the injury and the claimed disability.
16.	 ____: ____. Although an expert witness may be necessary to establish
      the cause of a claimed injury, the Workers’ Compensation Court is not
      limited to expert testimony to determine the degree of disability but
      instead may rely on the testimony of the claimant.
17.	 ____: ____. Although medical restrictions or impairment ratings are
      relevant to a claimant’s disability, the trial judge is not limited to expert
      testimony to determine the degree of disability but instead may rely on
      the testimony of the claimant.
18.	 Workers’ Compensation. Under Neb. Rev. Stat. § 48-121 (Reissue
      2010), a workers’ compensation claimant may receive permanent or
                                   - 529 -
           Nebraska Court of A ppeals A dvance Sheets
                25 Nebraska A ppellate R eports
                           ESCOBAR v. JBS USA
                           Cite as 25 Neb. App. 527

     temporary workers’ compensation benefits for either partial or total
     disability.
19.	 ____. Temporary disability benefits should be paid only to the time
     when it becomes apparent that the employee will get no better or no
     worse because of the injury.
20.	____. When an injured employee has reached maximum medical
     improvement, any remaining disability is, as a matter of law, permanent.
21.	 Rules of the Supreme Court: Attorney Fees: Appeal and Error. Neb.
     Ct. R. App. P. § 2-109(F) sets forth the procedure for a successful party
     to request attorney fees.

  Appeal from the Workers’ Compensation Court: Julie A.
M artin, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.

  Dallas D. Jones and Thomas B. Shires, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellant.

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

   Pirtle, R iedmann, and A rterburn, Judges.

   A rterburn, Judge.
                      I. INTRODUCTION
   JBS USA (JBS) appeals and Gerson Saul Del Cid Escobar
cross-appeals from an order entered by the Nebraska Workers’
Compensation Court finding Escobar had sustained a work-
related injury, finding that Escobar had reached maximum
medical improvement, awarding a 15-percent loss of earning
capacity, ordering JBS to pay for specific emergency room
medical services, and awarding Escobar future medical care.
On appeal, JBS argues the compensation court erred in finding
that certain portions of medical bills incurred by Escobar dur-
ing a period of hospitalization were related to his work injury
and erred when it found that Escobar was entitled to temporary
total disability from February 17 through March 15, 2016. On
cross-appeal, Escobar argues the compensation court erred
                              - 530 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

by failing to award temporary partial benefits from June 28,
2015, through maximum medical improvement. Escobar also
argues he is entitled to attorney fees. For the reasons set forth
below, we affirm in part, and in part reverse and remand for
further proceedings.
                       II. BACKGROUND
   The present appeal primarily concerns the nature and extent
of the injury sustained by Escobar as a result of his accident.
Escobar was 31 years old at the time of trial. Escobar had
been employed by JBS for approximately 11⁄2 years at the
time of his accident. On June 25, 2015, Escobar sustained an
injury to his lower back as a result of an accident arising out
of and in the course of his employment with JBS. At the time
of the accident, Escobar worked as a beef “tenderloin puller.”
His duties included removing tenderloins off of a conveyor
belt and trimming the meat. These tenderloins could weigh
up to 135 pounds. At some point during his shift on June 25,
Escobar left the conveyor line to use the restroom. Escobar
testified that upon his return to the line, his supervisor had
pulled tenderloins from the line and placed them in a large
bin. Escobar testified that he had to bend over the bin, lift
the tenderloins, and place them onto his workstation. Escobar
testified that he injured his back while lifting tenderloins out
of the bin.
   Escobar went to the company nurse that day to seek treat-
ment for his back injury. The company nurse, Jana Elwood,
noted in her report that Escobar did not appear to be in any
physical distress. Elwood also noted that Escobar told her
that he hated his job and wanted a new job, but did not want
to have to bid for a new job. Elwood testified that she asked
Escobar “if he was okay,” and he responded that he was “mad,”
but was “okay.”
   Escobar did not seek further treatment from the company
nurse until July 7, 2015. Escobar informed Elwood that he
had dull pain in his lower back. Elwood did not note anything
                              - 531 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

remarkable about Escobar’s condition in her report. Elwood
treated Escobar with a “Biofreeze massage” and allowed him
to return to work. Elwood applied the same treatment the fol-
lowing 2 days. Elwood then referred Escobar to a doctor for an
examination on July 14.
    Escobar was seen initially by Dr. Thomas Dunbar. Escobar
stated that his pain was 10 out of 10, but Dr. Dunbar’s report
stated that the examination was normal except for some ten-
derness on Escobar’s lower back. Dr. Dunbar prescribed some
medication and released Escobar to work. Escobar returned to
the physician’s office 1 week later with no reported change to
his pain level. The physician placed Escobar on work restric-
tion and prescribed physical therapy.
    During Escobar’s first visit with the physical therapist, the
therapist noted “[d]ecreased lumbar lordosis” and range of
motion of the lumbar spine. At Escobar’s last physical therapy
session, which was August 24, 2015, Escobar stated that the
pain had decreased some and the therapist noted improvement.
However, Escobar still complained of pain, so the physical
therapist referred Escobar to a physiatrist.
    On August 27, 2015, Escobar sought treatment at the
University of Nebraska Medical Center (UNMC) for a reported
2-month history of constant left-sided low-back pain after
lifting at work. After examination, Escobar was diagnosed
with a “[l]arge flank ecchymosis” of the left lumbar back and
tenderness of the lower back, but normal range of motion.
Escobar was prescribed medication and told to visit his regu-
lar physician.
    On August 31, 2015, Escobar underwent an examination by
Dr. Christopher Anderson, a physiatrist. Escobar complained
of “10/10” left-sided lumbar pain. Dr. Anderson diagnosed
Escobar with “[l]eft [l]umbar [r]adiculitis” resulting from his
work-related injury. Dr. Anderson ordered additional medica-
tions, an MRI, and no work for 1 week. Escobar learned on
September 1 that JBS would not pay him benefits for his week
off of work, so Escobar requested that Dr. Anderson lift the
                             - 532 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                     ESCOBAR v. JBS USA
                     Cite as 25 Neb. App. 527

work restriction. Dr. Anderson subsequently released Escobar
to work but restricted him to light-duty work.
   Escobar had an MRI conducted on September 3, 2015. The
MRI showed mild degenerative changes of the lumbar spine
and an “L4-5 annular tear with disc bulge.” At the follow-
ing visit, Dr. Anderson noted that Escobar’s manual muscle
strength was normal and that he had better range of motion.
However, Escobar still complained of severe pain, and he
scored at the maximum score on the pain disability question-
naire. Escobar continued his medications and light-duty work
and was subsequently referred for more physical therapy.
   Escobar continued to treat with his physical therapist and
Dr. Anderson until January 2016. On January 6, by request
of JBS, Escobar was evaluated by Dr. Dennis Bozarth, an
orthopedic surgeon. Dr. Bozarth determined that Escobar’s
subjective back pain was out of proportion to the physical
examination, which was likely exacerbated by biopsychosocial
stressors. Escobar continued his treatment with Dr. Anderson,
and on February 17, Dr. Anderson took Escobar off of work
for 4 weeks and referred him for more physical therapy.
   On February 23, 2016, Escobar sought treatment at the
UNMC emergency room. Escobar complained of sharp low-
back pain radiating down his left leg to his foot. At trial,
Escobar testified that he went to the emergency room because
“half of my body got numb.” Escobar was admitted to the
hospital and underwent a battery of tests. Escobar remained
in the hospital for 2 days. We will discuss the numerous
procedures Escobar underwent as they become relevant in
our analysis.
   On March 2, 2016, Dr. Bozarth authored a letter in response
to JBS’ request for an opinion regarding Escobar’s ability to
perform his job. Dr. Bozarth opined that he disagreed with
Dr. Anderson’s assessment and believed that Escobar could
perform light to medium work. Dr. Bozarth stated that he
believed Escobar should undergo a functional capacity evalu-
ation (FCE) in order to determine exactly what restrictions
                              - 533 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

and work capacity Escobar could handle. Dr. Bozarth stated
in his letter that he believed Escobar had reached maximum
medical improvement.
   After being provided with Dr. Bozarth’s letter, Dr. Anderson
agreed that an FCE would be appropriate. Dr. Anderson did
not agree with Dr. Bozarth’s work restrictions, but believed
Escobar could return to work with light-duty restrictions.
Escobar underwent an FCE on April 4, 2016. No restric-
tions could be prescribed because the therapist determined that
Escobar performed with “submaximal effort.” Dr. Anderson
was unable to utilize the FCE for permanent work restrictions
but did place Escobar at maximum medical improvement on
April 21. Escobar underwent a second FCE on September
26. The results were found to be valid by the therapist and
indicated that Escobar could work medium to heavy physical
demand for an 8-hour day.
   Escobar sought treatment with Dr. John McClellan on
September 26, 2016. Dr. McClellan evaluated Escobar at a
spine and pain center. Dr. McClellan specifically opined that
the aggravation of Escobar’s preexisting lumbar degeneration
arose when Escobar was lifting heavy tenderloins from the bin
at work on June 25, 2015.
   Escobar filed a petition in the compensation court on
January 7, 2016. The matter went to trial on November
21. The compensation court received stipulations of fact,
heard testimony, and received documentary evidence. There
being no dispute, the compensation court found that Escobar
had presented sufficient evidence to support his claim of a
work-related low-back injury. The compensation court found
that Escobar had reached maximum medical improvement
on April 21, the date Dr. Anderson noted in his report. The
compensation court awarded temporary total disability ben-
efits from February 17 to March 15. The compensation court
also awarded Escobar a 15-percent loss of earning capacity.
Additionally, the compensation court ordered JBS to pay
certain costs associated with Escobar’s medical treatment
                             - 534 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                     ESCOBAR v. JBS USA
                     Cite as 25 Neb. App. 527

from February 23 through 25. Finally, the compensation court
awarded future medical care.

                 III. ASSIGNMENTS OF ERROR
   JBS argues the compensation court erred in (1) finding that
certain hospital bills incurred by Escobar were related to his
work injury and (2) finding that Escobar was entitled to tem-
porary total disability from February 17 through March 15,
2016. On cross-appeal, Escobar argues the compensation court
erred by failing to award temporary total and temporary par-
tial disability from June 28, 2015, through maximum medical
improvement on April 21, 2016. Escobar also argues that he is
entitled to attorney fees.

                 IV. STANDARD OF REVIEW
   [1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
an appellate court may only modify, reverse, or set aside a
Workers’ Compensation Court decision when (1) the compen-
sation 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. Tchikobava v. Albatross Express, 293 Neb. 223, 876
N.W.2d 610 (2016).
   [2-4] 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. Id. Factual deter-
minations by a workers’ compensation trial judge have the
effect of a jury verdict and will not be disturbed unless they
are clearly wrong. Gardner v. International Paper Destr. &
Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015). In testing
the sufficiency of the evidence to support the findings of
fact by the workers’ compensation court, every controverted
fact must be considered in the light most favorable to the
                              - 535 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

successful party and that party must be given the benefit of
every inference reasonably deducible from the evidence. Id.
With respect to questions of law in workers’ compensation
cases, an appellate court is obligated to make its own determi-
nation. Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d
505 (2012).
                         V. ANALYSIS
                         1. JBS’ A ppeal
                     (a) Hospital Treatment
   JBS argues the district court erred in ordering it to pay
$16,840.18 for charges relating to Escobar’s hospitalization
from February 23 through 25, 2016. JBS argues that Escobar
did not meet his burden to prove that these costs were a result
of his work-related low-back injury. JBS further contends that
the compensation court erred when it ordered JBS to pay for
treatment incurred by Escobar for which the compensation
court could not determine whether it was attributable to the
work-related low-back injury or another ailment.
   [5] Neb. Rev. Stat. § 48-120 (Cum. Supp. 2014) provides in
pertinent part, “The employer is liable for all reasonable medi-
cal, surgical, and hospital services . . . which are required by
the nature of the injury and which will relieve pain or promote
and hasten the employee’s restoration to health and employ-
ment . . . .” “When an employee in a workers’ compensation
case presents evidence of medical expenses resulting from
injury, he or she has made out a prima facie case of fairness
and reasonableness, causing the burden to shift to the employer
to adduce evidence that the expenses are not fair and reason-
able.” Dawes v. Wittrock Sandblasting & Painting, 266 Neb.
526, 547, 667 N.W.2d 167, 187 (2003), overruled on other
grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707
N.W.2d 229 (2005).
   The compensation court stated in its order:
      Therefore, based upon the totality of the evidence,
      [Escobar’s] testimony as to the need for treatment, the
                              - 536 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

      documented reports of continued complaints of pain, and
      the opinions of the experts that support a work-related
      injury to his low back, the Court finds that [JBS] is
      responsible for those emergency room charges related to
      treatment for his low back. . . .
         That being said, the Court appreciates [JBS’] argu-
      ments as to the relatedness of some of the charges as
      some of the incurred expenses were for tachycardia and
      unrelated infections. However, no evidence was offered
      as to which charges were not related to the low back
      so the Court was left to try and sort out any unrelated
      expenses. Any treatments or medications that the Court
      was not familiar with, could not find documentation in the
      medical records to explain the charge, or were for treat-
      ment for the combined diagnoses, the Court has assessed
      those charges against [JBS]. The Court has determined
      that [JBS] shall pay the following expenses incurred at
      UNMC from February 23, 2016, through February 25,
      2016 . . . .
The compensation court went on to list numerous medi-
cations, procedures, and tests performed at UNMC dur-
ing Escobar’s hospitalization which met its stated criteria.
However, the court did not delineate which of these charges
it found to be related to Escobar’s injury and which charges
lacked documentation in the record or were otherwise unfa-
miliar. We note that two itemized statements of services
provided and the associated charges with them are present in
the record. One statement contains a total of $28,033.75 in
charges. The other statement lists charges totaling $2,745.70.
It is apparent, therefore, that the compensation court found
almost half of the total charges to be unrelated to Escobar’s
back injury.
   JBS argues that without expert testimony tying his hos-
pitalization and the various charges incurred to the work-
related injury, Escobar could not prove that any of the UNMC
charges were payable by it. JBS further argues that the
                              - 537 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

compensation court’s requirement that JBS pay these charges
for which it was not familiar or could not find explanatory
documentation constituted a shift in the burden of proof from
the employee to the employer.
   [6,7] We first note that outside expert testimony is not
required to establish a causal link between the work-related
injury and Escobar’s hospitalization where the records estab-
lish a relationship to the work-related injury. See Lounnaphanh
v. Monfort, Inc., 7 Neb. App. 452, 583 N.W.2d 783 (1998).
“Whether medical treatment is reasonable or necessary to treat
a workers’ compensation claimant’s compensable injury is a
question of fact.” Yost v. Davita, Inc., 23 Neb. App. 482, 489,
873 N.W.2d 435, 443 (2015), modified on denial of rehearing
23 Neb. App. 732, 877 N.W.2d 271 (2016).
   As to the link between the specific charges incurred by
Escobar while hospitalized, we find guidance for this issue
in Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 778
N.W.2d 504 (2009). In Visoso, we considered whether a series
of doctor’s visits by an employee were related to the work-
place injury and thus payable by the employer. The clinic
reports recounted various medical conditions assessed during
the visits. However, in each case, the claim reports noted that
the employee’s neck pain was assessed, and in some instances,
treated. The billings in Visoso were for general office visits.
There were not specific charges for treatment of the various
complained of ailments.
   We held that the medical records “clearly made out a prima
facie case of fairness, reasonableness, and necessity because
each visit included evaluation, treatment, or followup from his
work injury. Therefore, the burden shifted to [the employer]
to adduce evidence that the expenses are not fair and reason-
able.” Id. at 212, 778 N.W.2d at 513. While we did require
evidence from the medical records to establish a causal con-
nection between the work-related injury and the doctor visits,
we did not require the employee to produce independent medi-
cal testimony to establish that connection.
                              - 538 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

   [8,9] Here, there is no issue regarding whether the expenses
are fair and reasonable; however, we see no reason not to apply
the same burden of proof analysis to the issue of whether the
medical treatment that was incurred was a result of the work-
related injury. Therefore, the burden does rest on the employee
to make out a prima facie case that the medical treatment the
employee received is a result of a work-related injury. Once
a prima facie case is established, the burden shifts to the
employer to rebut the employee’s evidence.
   Here, the compensation court clearly excluded charges
found not to be related to the work-related injury. The court
included charges found to be related to that injury. The com-
pensation court erred, however, by requiring JBS to pay for the
medical services rendered which were unfamiliar and undocu-
mented. Because the compensation court grouped these charges
together with the charges found to be related to the workplace
injury, we must remand the issue to the compensation court
for further consideration. The court shall list separately those
charges it found to be related to the workplace injury. JBS
shall be required to pay only those related charges. JBS shall
not be required to pay those charges which were unfamiliar
or undocumented. Therefore, we must reverse the award of
$16,840.18 by the compensation court to Escobar, and remand
the issue for further consideration.

                (b) Award of Temporary Total
                      Disability Benefits
   JBS argues the compensation court erred in finding that
Escobar was entitled to temporary total disability benefits from
February 17 through March 15, 2016. JBS argues that there
was no evidence that Escobar was submitting to treatment
or that he was convalescing, suffering, and unable to work.
Additionally, JBS argues that the hospitalization that occurred
during this period was mainly due to other ailments, not the
work-related low-back injury.
                                - 539 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                        ESCOBAR v. JBS USA
                        Cite as 25 Neb. App. 527

   [10,11] Temporary disability is the period during which the
employee is submitting to treatment, is convalescing, is suf-
fering from the injury, and is unable to work because of the
accident. Kim v. Gen-X Clothing, 287 Neb. 927, 845 N.W.2d
265 (2014). 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 employee’s mentality
and attainments could perform. Id.
   [12-14] Whether a plaintiff in a Nebraska workers’ compen-
sation 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. Zwiener v. Becton Dickinson-
East, 285 Neb. 735, 829 N.W.2d 113 (2013). Moreover, as the
trier of fact, the Workers’ Compensation Court is the sole judge
of the credibility of witnesses and the weight to be given their
testimony. Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869
N.W.2d 78 (2015).
   [15-17] If the nature and effect of a claimant’s injury are not
plainly apparent, then the claimant must provide expert medical
testimony showing a causal connection between the injury and
the claimed disability. Frauendorfer v. Lindsay Mfg. Co., 263
Neb. 237, 639 N.W.2d 125 (2002). Although an expert witness
may be necessary to establish the cause of a claimed injury,
the Workers’ Compensation Court is not limited to expert tes-
timony to determine the degree of disability but instead may
rely on the testimony of the claimant. Id. Although medical
restrictions or impairment ratings are relevant to a claimant’s
disability, the trial judge is not limited to expert testimony to
determine the degree of disability but instead may rely on the
testimony of the claimant. Id.
   The compensation court received into evidence reports
from Drs. Anderson and Bozarth. Dr. Bozarth opined in his
                              - 540 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ESCOBAR v. JBS USA
                      Cite as 25 Neb. App. 527

report that Escobar did not need to be off work, but should
have some restrictions. Dr. Anderson directed that Escobar
not work during the timeframe for which temporary total
disability benefits were awarded. On March 24, 2016, Dr.
Anderson released Escobar to work with some restrictions.
The compensation court stated in its order that it gave more
weight to Dr. Anderson, because he was Escobar’s treat-
ing physician. Viewing every controverted fact in favor of
Escobar and giving the benefit of every inference that is
reasonably deducible from the evidence to Escobar, we can-
not say that the compensation court was clearly wrong in its
decision to award Escobar temporary total disability benefits.
Therefore, we affirm the decision of the compensation court
in this respect.

                    2. Escobar’s Cross-A ppeal
   Escobar argues the compensation court erred in not award-
ing him temporary disability benefits from June 28, 2015,
through April 21, 2016, the date the compensation court deter-
mined Escobar had reached maximum medical improvement.
Escobar argues that in order to perform a light-duty job, he
had to change positions from tenderloin puller to cleanup.
Escobar argues that he should have been awarded temporary
partial disability benefits as a result of having to switch posi-
tions due to his work-related injury.
   [18-20] Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a
workers’ compensation claimant may receive permanent or
temporary workers’ compensation benefits for either partial
or total disability. “Temporary” and “permanent” refer to the
duration of disability, while “total” and “partial” refer to the
degree or extent of the diminished employability or loss of
earning capacity. Gardner v. International Paper Destr. &
Recycl., 291 Neb. 415, 865 N.W.2d 371 (2015). Compensation
for temporary disability ceases as soon as the extent of the
claimant’s permanent disability is ascertained. Id. In other
words, temporary disability benefits should be paid only to
                             - 541 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                     ESCOBAR v. JBS USA
                     Cite as 25 Neb. App. 527

the time when it becomes apparent that the employee will get
no better or no worse because of the injury. Visoso v. Cargill
Meat Solutions, 285 Neb. 272, 826 N.W.2d 845 (2013). Simply
stated, when an injured employee has reached maximum medi-
cal improvement, any remaining disability is, as a matter of
law, permanent. Gardner, supra.
   The compensation court determined that Escobar had bid
on two lighter duty jobs 2 weeks before the date of his work-
related injury. The compensation court noted that these jobs
were lower-paying jobs than the tenderloin puller job Escobar
was working. The compensation court determined that even
though Escobar worked a lower-paying job after the work-
related injury, it was voluntary. We find that the compensa-
tion court was not clearly wrong in this respect and affirm
its finding.

                   3. Escobar’s R equest for
                        Attorney Fees
   [21] Finally, we note in Escobar’s initial brief that he
requests attorney fees for having to defend an appeal of the
compensation court’s award in his favor. However, Neb. Ct.
R. App. P. § 2-109(F) (rev. 2014) sets forth the procedure for
a successful party to request attorney fees. Escobar’s request
contained in his brief is not in compliance with that proce-
dure, and although this court has not ordered a reduction of
the amount awarded to him, we are remanding the cause to
the compensation court for further proceedings involving the
amount it ordered JBS to pay. See Neb. Rev. Stat. § 48-125
(Cum. Supp. 2014). Therefore, we do not address this request
at this time.

                     VI. CONCLUSION
   We find that the compensation court erred in finding that
the entirety of $16,840.18 in hospitalization charges should
be taxed against JBS. We reverse that portion of the court’s
award and remand it for further consideration of whether
                             - 542 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                     ESCOBAR v. JBS USA
                     Cite as 25 Neb. App. 527

Escobar met his prima facie burden to prove whether the
charges were related to his injury. We find that the compensa-
tion court did not err in finding that Escobar was entitled to
temporary total disability benefits from February 17 through
March 15, 2016. We find the compensation court did not
err by failing to award Escobar temporary partial disability
benefits from June 28, 2015, through maximum medical
improvement. Finally, we find that Escobar is not entitled to
attorney fees.
	A ffirmed in part, and in part reversed and
	                remanded for further proceedings.
