                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     SCOTT V. DRIVERS MGMT.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                   MARIATOU SCOTT, APPELLANT,
                                                  V.

                            DRIVERS MANAGEMENT, LLC, APPELLEE.


                                 Filed June 6, 2017.   No. A-16-393.


       Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge.
Affirmed.
       Mariatou Scott, pro se.
       Bradley D. Shidler, of Werner Enterprises, Inc., for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       BISHOP, Judge.
                                         INTRODUCTION
        Mariatou Scott had a work-related injury while employed by Drivers Management, LLC.
The Nebraska Workers’ Compensation Court awarded Scott temporary and permanent disability
benefits, but denied future medical care and vocational rehabilitation services. Scott appeals the
compensation court’s determination that she reached maximum medical improvement (MMI) from
all of her injuries. We affirm.
                                          BACKGROUND
       Scott sustained her injury when stepping down from a bunk bed ladder in the cab of a truck
on March 20, 2010, in Grove City, Ohio, while working as a student driver for Drivers
Management. Scott initially filed a lawsuit for her injury in Georgia (where she was hired), but
subsequently filed a petition with the compensation court in Nebraska on July 8, 2011, claiming



                                                -1-
that she “fell off the top bunk bed of her truck and landed on her feet,” causing injuries to her
“lower back, groin, left ankle, left foot, left hip and right leg.” Drivers Management filed its answer
on July 14, alleging that any benefits to which Scott was entitled had been paid, and further alleging
the existence of a preexisting condition and an intervening accident in August 2010.
        Trial took place on December 11, 2015, with Scott participating by video conferencing.
Numerous medical records were received. Scott testified that her “disability is multifaceted,” that
it was not just her knee, but also her low back and hips. She claimed she “was whole” when she
went to work for Drivers Management, and now she is “bound to home[,]” and “cannot do
anything.” Scott said she only had one prior work injury in 1990 or 1991 when she injured her
right hand and her low back while working for a military retirement facility in Virginia, “but that
only lasted for two weeks.”
        On cross-examination, Scott was confronted with a series of medical record exhibits which
predated the March 2010 injury. She was first referred to a medical record from Dr. Albert
Murtland (exhibit 100), dated January 19, 1996, which noted Scott was 37 years of age at that
time, and was seeking another opinion regarding her back, “with a long, long, long story” dating
from January 1990 throughout the next 5 to 6 years. Dr. Murtland noted Scott’s complaints of
“dis[k] problems,” that Scott was still fighting a compensation claim from a slip and fall while
working in Virginia, and that she was continuing to have a chronic problem with her low back.
The record indicated that Scott is “always talking about pain and not loss of function,” and that
Scott “is looking for a magic cure and there is none.” Dr. Murtland stated that there were “many
things that bother [him] about this one[,]” and that Scott handed him a “large book that she has
composed and the various doctors that she has seen and opinions that have been rendered and I
wonder why.” When Scott was asked at trial if she agreed that this medical record showed she was
continuing to have a chronic problem with her low back in 1996, Scott responded that the medical
record was false.
        Another medical record reflected that Scott had knee pain in December 2001. However,
Scott testified at trial that she did not have knee pain at that time, but that she “was depressed,
so - maybe I was feeling [sic] in my knee.” In a record dated March 22, 2002, reference was made
to pain involving Scott’s knees and ankles, and noted that she has had multiple rheumatologic
evaluations. Scott testified that she never had such evaluations. In response to a medical record
dated January 2003 which indicated Scott was having intermittent pain in her back for 1½ years,
Scott said that was from asthma pain and “has nothing to do with [her] condition now.” Although
the medical record noted complaints of pain radiating through her back, up the left side of the back
of her neck and through the top of her head to her left temple, Scott again stated she “was not
suffering from back pain[,]” rather, it was her asthma.
        Another medical record dated August 2007 showed Scott having leg pain and chronic ankle
swelling; however, Scott denied ever having ankle swelling before and disagreed with that entry
in the medical record. A medical record from October 2009 indicated Scott had a chief complaint
of pelvic pain into her back, and right leg radiculopathy for a month, “worse today.” Scott said she
“didn’t suffer any of this[,]” and that she only had pain on her right side “because [she] lifted [and
she] moved to Tennessee [and she] didn’t have any pain what they’re saying here.” Scott testified




                                                 -2-
at trial that any medications she received at that time were because she had lifted heavy boxes
moving from New York to Tennessee.
         Based on medical records from Johnson City, Tennessee, where Scott was residing at the
time, Scott reported on December 1, 2009, that she had pain in her back radiating down into her
right leg, and groin pain radiating into her leg. Scott testified that her doctor suspected she had a
hernia from lifting heavy boxes. That same month, Scott applied to work for C. R. England, another
trucking company. This was the first trucking company Scott went to work for as a driver. As part
of a “DOT physical,” Scott had to complete a health history. On that form, dated December 13,
2009, Scott denied ever having any injuries or problems with her neck, back, feet, legs, knees, or
ankles. When it was suggested those were not truthful responses, Scott testified they were truthful
because she did not have a “chronic” problem at the time she was hired. Scott worked for C.R.
England from December 2009 to March 1, 2010; she ended her employment there because she was
told Drivers Management had “better quality of services” and she might be able “to do better”
there.
         Another “DOT exam” was required for Scott to obtain employment with Drivers
Management. That examination, dated March 12, 2010, showed that Scott answered “no” to all
questions regarding health history issues. She testified that those were truthful responses. On
March 20, she sustained her injury, and she left her employment with Drivers Management; her
last day was March 26.
         As to her March 20, 2010, injury, Scott testified that she and her supervisor were in their
truck when it became Scott’s turn to drive. In preparation, she climbed up onto her bunk in the
truck cab to retrieve her glasses and notebook. Scott stated she “was getting off the top bunk bed
in the cab of the truck” and “there is a stair down” and she “went to get all the way down to the
landing, which is really maybe [one] foot from the floor level” and in doing that, she “just missed
and just landed hard on [her] feet.” Scott responded affirmatively when asked if she was fine until
she missed a step and landed on her feet, at which time she felt “pain in [her] knee and in [her]
back, in [her] leg, in [her] hip.” She clarified it was her right leg and both hips, but “the right side
hurt more than the left side.” This version of the incident suggests the injury occurred upon Scott’s
feet impacting with the floor when she missed a step.
         Scott was challenged on that version of how the injury occurred, with opposing counsel
reminding her of the proceedings related to her work injury which she had initially filed in Georgia.
During Scott’s deposition in the Georgia case on March 18, 2011, Scott testified that while still
hanging on the top bunk bed, her knee popped, and then when coming down, she missed the step.
She had replied “yes” in her deposition when asked if something actually happened to her knee
prior to her hitting the floor of the truck. In this version, Scott’s knee injury actually occurred
before her feet impacted with the floor.
         Scott testified that she told her driving partner that she was hurting from her fall, but since
he could not drive, Scott “continued driving until the next day”; they stopped at the Lithia Springs
terminal in Georgia on March 21, 2010. Arrangements were made for Scott to see a doctor on
March 22 at Concentra Medical Center (Concentra) in Atlanta, Georgia. According to the record
from Dr. Shaun Brownlee at Concentra, Scott reported: “I was climbing down the top bunk bed
and [I] missed a step and [I] injured my right knee.” There is no reference to any back pain or other



                                                 -3-
pain. Dr. Brownlee diagnosed her with a “knee strain” and a “knee lateral collateral ligament
strain.” When shown a copy of that medical record, Scott was asked if it referenced any other body
part, and Scott replied that the “record says one thing, and they did not put on what was happening
to me, so the record is not right.” Scott was then shown a document in which Dr. Brownlee
responded to a series of questions. Dr. Brownlee stated that Scott did not complain of, nor was
treated for, low back pain, right hip pain, “SI joint pain,” or foot pain. Scott testified that Dr.
Brownlee was inaccurate or not being truthful as to all of those responses.
        Scott returned to Concentra on March 25, 2010. The medical record indicated that Scott
began modified duty at the Atlanta terminal the day prior, during which Scott spent most of her
time sitting. The record further noted that afterwards, Scott noticed an onset of pain in her right
leg, hip, back of thigh, ankle, and swelling in her foot, and that these symptoms were not present
until she began modified duty. Scott testified that this report was also not accurate.
        Scott paid a final visit to Concentra on March 26, 2010, and complained that she was still
sore (particularly in her lower back) after her previous physical therapy evaluation. Scott did not
return to Concentra after the March 26 appointment; she notified someone at the Lithia Springs
office that she was leaving the treatment she was receiving at Concentra because she was “not
getting proper treatment because they’re not looking at my body parts.” Scott’s last day of
employment with Drivers Management was March 26. Scott did not return to her primary
residence in Tennessee because she would have had “to use [her] own money to get treated because
Tennessee didn’t have any system where [she] could be helped with workers[’] compensation, so
[she] had to go where [she] could be treated.” She went to New York and stayed with her sister
because Scott “know[s] the New York system.”
        On April 2, 2010, in New York, Scott had an MRI of her lumbar spine which showed
normal vertebral alignment and vertebral body heights; the impression was an unremarkable
examination of the lumbar spine. An MRI of her right knee showed mild patellofemoral
osteoarthritis. On April 14, Dr. Gabriel Zatlin suggested physical therapy and sent Scott to see Dr.
Eugene Bulkin at Beth Israel Medical Center’s Spine Institute.
        Dr. Bulkin ordered an additional MRI and, on June 10, 2010, opined that the MRI revealed
degenerative disk disease at the L4-5, L5-S1 level without foraminal spinal stenosis. Dr. Bulkin
prescribed physical therapy and ordered an EMG. During a June 18 follow-up, Dr. Bulkin
concluded that the EMG revealed no signs of active lumbar radiculopathy or peripheral neuropathy
or myopathy. Dr. Bulkin referred Scott to an orthopedic surgeon, Dr. Ken Miyasaka, and
prescribed continued physical therapy.
        On June 29, 2010, Scott saw Dr. Miyasaka, who performed a physical exam and ordered
an MRI. After reviewing the MRI, Dr. Miyasaka diagnosed Scott with a partial MCL tear/strain
with preexisting patellofemoral osteoarthritis, sciatica of the right lower leg. Dr. Miyasaka wanted
Scott to go to physical therapy, but Scott testified that physical therapy would not help her. Dr.
Miyasaka’s August 31 medical record (exhibit 9) was withdrawn from evidence by Scott.
        Dr. Bulkin also examined Scott on June 29, 2010, and discussed the MRI of her spine. Like
before, he opined that the MRI revealed mild degenerative disk disease at the L4-5, L5-S1 level.
However, he added that Scott had disk herniation and foraminal stenosis. He suggested that she
seek a surgical consultation from an orthopedic surgeon for a knee and hip evaluation. Scott



                                               -4-
returned to Dr. Bulkin on August 17 for a follow-up concerning her lower back pain. Dr. Bulkin
noted that a previous MRI showed small disk bulges in her lumbar spine. Dr. Bulkin opined that
she had lumbosacral radiculopathy and spondylosis. He ordered an epidural steroid injection and
continued physical therapy. Scott was given steroid injections, but according to Scott, “every time
he did the injection, I was in bed for maybe a month or so[.]”
         On August 20, 2010, Scott saw Dr. Steven Levine (because “Dr. Zatlin was on vacation”).
He diagnosed her with lumbago and placed restrictions on her physical activities. He also said that
she could return to work on August 23, with certain restrictions.
         On August 28, 2010, Scott fell and injured her left arm while walking outside. At trial, she
testified that she had gone outside for some fresh air and that her knee gave out, causing her to fall.
An emergency room examination on September 2 revealed no fracture of the wrists. However, she
went to Dr. Miyasaka for an elbow examination that same day, and he diagnosed Scott with a
radial head fracture in her left elbow.
         Scott saw her family practice doctor, Dr. Zatlin, on October 13, 2010, and he sent her to
see a specialist “at Bellevue.” A report from the Neurology Department of Bellevue Hospital in
New York City dated October 14, shows Scott complaining of “RLE pain” and pain radiating to
her right leg, and that the pain had worsened after a second fall in August 2010. The attending
physician, Dr. Robert Pfeffer, noted that Scott’s “strength is difficult to evaluate because of poor
effort/pain. . . . Findings suggest lumbar plexus lesion, but difficult to localize [and] one could try
to identify [second]ary gain.”
         On October 28, 2010, Dr. Eugenius Harvey of Industrial Medicine Associates in New York
City performed a “consultative” physical medical examination on Scott upon a referral from the
“Division of Disability Determination.” The record does not reveal who requested the
examination, however, the timing appears to correlate with Scott’s testimony that “[t]he Social
Security doctor placed [her] on disability since 2010.” At the time of the exam, Scott’s chief
complaint was of right-sided lower back pain and right knee pain. Dr. Harvey acknowledged
Scott’s past treatments, making note of the degenerative disk disease and mild disk protrusion at
the L4-5 and L5-S1 levels. Dr. Harvey noted that Scott’s thoracic and lumbar spines were normal,
except for “right-sided lumbosacral paraspinal tenderness and some right-sided SI joint tenderness.
There was no muscle spasm. No scoliosis or kyphosis. SLR was positive on the right at 45 degrees
with pain radiating around to the right groin and medially down the leg to the foot.” He also noted
that she was able to “perform full flexion and extension of her thoracic and lumbar spine.” Similar
to Dr. Bulkin, Dr. Harvey diagnosed Scott with lumbosacral radiculopathy and spondylosis and
right knee medial collateral ligament partial tear and patellofemoral osteoarthritis.
         In December 2010, Scott sought treatment from Dr. T.R. Swaminathan of Sayre
Neurology. Dr. Swaminathan examined Scott and diagnosed her with right lumbar radiculopathy.
He noted that the exam showed “sensory deficit over right L4 and global weakness of all muscle
groups in RLE which is likely effort related. SLR positive right side. Lumbar spine MRI done in
6/10 reported as minimal central dis[k] bulge at L4-5 and L5-S1 without spinal or neural foraminal
stenosis.” This diagnosis was generally similar to the diagnoses of Drs. Bulkin and Harvey, except
for the difference related to spinal or neural foraminal stenosis.




                                                 -5-
         Dr. Dermot Reynolds performed arthroscopic surgery on Scott’s right knee on March 23,
2011. During a follow-up appointment on April 19, Scott complained that she had had pain and
weakness since the surgery, but there are no records of serious complications. On May 11, Scott
returned to Dr. Reynolds’ office, complaining of back pain. Dr. Reynolds recommended that Scott
continue physical therapy.
         On November 7, 2011, Dr. William Kennedy performed an independent medical
evaluation on Scott. According to Scott’s testimony, her former attorney sent her to see Dr.
Kennedy. However, the results and conclusions of this exam are not in the record. Scott testified,
however, that Dr. Kennedy gave her a 3-percent whole body impairment rating because he knew
she “had some defects in [her] lumbar spine [and] his report is very consistent with what Dr. Bulkin
said and any other doctor after that.”
         On January 11, 2012, Scott sought treatment for foot pain from Ryan Chatelain, “D.P.M.”
Dr. Chatelain opined that Scott might have radiculopathy and recommended that she see a back
specialist or neurologist. He also noted that she “admit[ted] to lower back degenerative disk
disease. She admit[ted] to osteoarthritis . . . . She deni[ed] rheumatoid arthritis or gout.” Dr.
Chatelain ordered an “EPG” on February 2. After the “EPG,” he opined that “there is no
electrophysiological evidence of a large-fiber peripheral neuropathy, active lumbosacral
radiculopathy, or a sciatic neuropathy on today’s study.”
         Scott next sought treatment on January 12, 2012, from Dr. Benjamin Knox of Appalachian
Orthopedic Associates in Tennessee. According to the medical records, Dr. Knox performed a
physical examination based on Scott’s complaint of continued lower back pain from the March
2010 fall. Dr. Knox noted that Scott reported that previous MRIs showed disk desiccation at L4-5.
However, Dr. Knox concluded, “I advised the patient that I find nothing serious on her evaluation
and while she could be referred for pain management[,] I doubt they would have anything to offer
her other than repeat epidurals which have already been shown not to work for her.” He ultimately
advised Scott “to try and live with it and remain as active as possible. Follow up as needed.” The
record does not reveal any follow-up treatment with Dr. Knox. According to Scott’s testimony,
she did not “think he did a good job for [her] at all” because “[h]e didn’t pay attention” to any of
her MRI evaluations and he did not pay attention to her because she did not have insurance to pay
him.
         In July 2012, Scott received another MRI of her lumbar spine, but the record does not
reveal who ordered the procedure. Dr. Douglas Philips interpreted the MRI and opined that Scott
had “mild degenerative disk disease at L4-L5 and L5-S1, with left eccentric L5-S1 annular fissure
or tear. No spinal canal or neuroforaminal stenosis.”
         In November 2012, Scott sought treatment with Dr. David Hyams for lower back pain.
After examination, Dr. Hyams noted there was “[m]inimal dis[k] disease on MRI and normal
electrodiagnostics [sic]. No clear organic reasons for right lower extremity symptoms.” He also
suggested that Scott continue physical therapy. Scott returned to Dr. Hyams on January 11, 2013.
Dr. Hyams noted that Scott failed to produce MRIs showing a mild degenerative disk disease. He
noted that she received epidural injections for pain management and that they had been
unsuccessful. He recommended a comprehensive pain management program.




                                               -6-
         In September 2013, Scott was examined at the Weill Cornell Medical Center; another MRI
was done. Dr. Roger Bartolotta compared this MRI with one from July 26, 2012, and noted that
“[v]ertebral body alignment and stature is maintained with no evidence of spondylolisthesis or
spondylolysis. No abnormal motion with flexion of extension. No acute fracture is identified.” He
also found “[m]inimal L5-S1 dis[k] space narrowing. Dis[k] space heights are otherwise
preserved.” Scott had another MRI at Weill Cornell on October 23.
         Between October 2013 and trial in December 2015, Scott continued to seek treatment for
her lower back pain with various medical providers. She was seen at New York Presbyterian
Hospital in May 2014, by Dr. Chris Moros at Bronx Island Musculoskeletal Care in July, and by
Dr. Robert Marini at Jersey Rehab and Pain Management on July 31. None of these visits provided
new diagnoses or information.
         Dr. Michael O’Neil of OrthoWest (main office located in Omaha, Nebraska), has been a
practicing orthopaedic surgeon for over 40 years. Dr. O’Neil conducted a review of Scott’s medical
records through January 2012. In his April 10, 2014, report, Dr. O’Neil summarized Scott’s
medical history for her knee and back complaints. As for Scott’s knee, Dr. O’Neil relied upon Dr.
Reynolds’ records which showed findings of a radial articular tear resulting in a partial medial
meniscectomy. As a result, Dr. O’Neil opined that Scott was entitled to a 2-percent permanent
impairment of the extremity in accordance with the “AMA Guides.” As to Scott’s chronic
complaints about her low back, Dr. O’Neil concluded that Scott reached MMI when she was
examined by Dr. Knox on January 10, 2012, and was not entitled to any permanent physical
impairment or physical restrictions as a result of “her alleged back injury on March 20, 2010.” Dr.
O’Neil further opined that “no additional diagnostic or therapeutic treatment is indicated for her
complaints of back pain and right lower extremity pain.”
         Finally, on April 27, 2015, Dr. Sana Bloch of Medalliance Medical Health Services in New
York City examined Scott and wrote a letter to Dr. Marini of Jersey Rehab and Pain Management,
describing the treatments Scott received. Dr. Bloch described MRI evidence of disk bulges at
T5-T6 and T6-T7 and a minor bulge at C3-C4 and C4-C5. Dr. Bloch stated that her review of the
MRI and Scott’s spine “could not explain the patient’s symptomatology except for pain.” She
further hypothesized that, because Scott had been constantly symptomatic for 5 years, it was likely
Scott’s symptoms were permanent.
         With regard to employment since leaving Drivers Management in March 2010, Scott
testified that she worked for a week as a public health advisor at Harlem Hospital in July 2010,
and was applying for various jobs at the end of August 2010. Scott had obtained a bachelor’s
degree in health science from State University of New York in 1997, and in 2001, she obtained
two master’s degrees (business administration and community development) from Southern New
Hampshire University.
         The compensation court entered an award on March 14, 2016. The court’s order
chronologically summarized Scott’s medical history, beginning with Scott’s complaints about her
back beginning in 1990, and concluding with Dr. Knox’s January 10, 2012, examination and
assessment. The court found that on March 20, 2010, Scott slipped and fell on her way down from
the top bunk of the truck, and that her knee popped before she landed on her feet. Relying on Dr.
O’Neil’s report, the compensation court awarded Scott “a loss of use of the right leg of 2 percent



                                               -7-
which entitles [Scott] to 4.3 weeks of permanent benefits.” As for Scott’s complaints about her
back, the court noted that Dr. O’Neil opined that Scott reached MMI “from her alleged back injury
of March 20, 2010, when she was examined by Dr. Benjamin Knox on January 10, 2012[,] and he
informed her that he had nothing to offer her in the way of treatment.” The compensation court
also concluded, based upon Dr. O’Neil’s report, that Scott had “no permanent impairment or
permanent restrictions and that no additional diagnostic or therapeutic treatment is indicated for
her complaints of back pain and right lower extremity pain.” As for temporary benefits, the court
noted that there was no evidence of an actual date of MMI for Scott’s knee injury, but that Dr.
O’Neil did find MMI was reached for the low back injury as of January 10, 2012. Accordingly,
the compensation court awarded temporary benefits from March 25, 2010, through January 10,
2012. The court also ordered Drivers Management to pay certain medical bills (knee treatments
through date of release by Dr. Reynolds; low back treatment from date of injury through January
10, 2012), with credit given for payments already made by Drivers Management. The court did
not award future medical care, and denied any claim for vocational rehabilitation. Scott appeals
from this award.
                                  ASSIGNMENTS OF ERROR
       Scott’s brief does not contain an assignments of error section.
                                    STANDARD OF REVIEW
        Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014) requires a separate, concise statement of
each error a party contends was made by the trial court, together with the issues pertaining to the
assignments of error. Where the brief of a party fails to comply with the mandate of
§ 2-109(D)(1)(e), we may proceed as though the party failed to file a brief or, alternatively, may
examine the proceedings for plain error. In re Interest of Samantha L. & Jasmine L., 286 Neb. 778,
839 N.W.2d 265 (2013). Plain error is error plainly evident from the record and of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the
judicial process. Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
        A litigant proceeding on a pro se basis is obligated to follow the same appellate rules and
procedures applicable to counsel. Mix v. City of Lincoln, 244 Neb. 561, 508 N.W.2d 549 (1993).
Scott failed to comply with § 2-109(D)(1)(e); she did not include a separate assignments of errors
section setting forth each error she contends was made by the compensation court. Therefore, we
examine the proceedings for plain error.
                                            ANALYSIS
         Scott argues that the compensation court incorrectly concluded that she reached MMI for
the injury to her “lumbar spine” since “she continues to undergo surgeries and medical care[.]”
Brief for appellant at 10. She asserts that a variety of medical records in evidence support her
claim. Scott does not allege any error by the compensation court with regard to the permanent
impairment rating for her right knee or other aspects of the court’s decision, so we limit our review
to the compensation court’s determination that she was at MMI as of January 10, 2012, with regard
to all of her injuries arising from the March 20, 2010, accident.




                                                -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.
Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008). A claimant has not
reached maximum medical improvement until all the injuries resulting from an accident have
reached maximum medical healing. Id. And generally, whether a workers’ compensation claimant
has reached maximum medical improvement is a question of fact. Id.
         Upon appellate review, the findings of fact made by the trial judge of the compensation
court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Caradori v.
Frontier Airlines, Inc., 213 Neb. 513, 329 N.W.2d 865 (1983). 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).
         In testing the sufficiency of the evidence to support the findings of fact by the Workers’
Compensation Court, the evidence must be considered in the light most favorable to the successful
party, 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.
Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013).
         Further, if the record in a workers’ compensation case presents conflicting medical reports
and testimony, an appellate court will not substitute its judgment for that of the compensation court
regarding which medical evidence to rely upon. See Kerkman v. Weidner Williams Roofing Co.,
250 Neb. 70, 547 N.W.2d 152 (1996). The compensation court is entitled to accept the opinion of
one medical expert over that of another, and as the sole trier of fact, the compensation court is the
sole judge of the credibility of the medical evidence and the weight to be given to it. See id. Also,
the Workers’ Compensation Court is not bound by the opinions of medical experts, regardless of
whether they are contradicted or not. Cummings v. Omaha Public Schools, 6 Neb. App. 478, 574
N.W.2d 533 (1998).
         The compensation court’s order chronologically summarizes Scott’s medical history, and
points out that Scott’s “story begins on January 31, 1990,” and that she has “a long history
regarding her back.” Although the compensation court referenced a 3-percent whole person
permanent impairment determined by Dr. William Kennedy in an independent medical
examination performed on November 7, 2011, the court explained that there were no records for
that examination presented to the court. Further, the court obviously found other evidence in the
record, particularly the opinion of Dr. O’Neil, to be more persuasive regarding MMI and any
permanent impact caused by the March 20, 2010, accident on Scott’s preexisting chronic back
pain.
         Dr. O’Neil opined that Scott had reached MMI as of January 10, 2012, when Dr. Knox
informed Scott that he had nothing to offer her in the way of treatment for her lower back pain.
Dr. Knox advised Scott that he found “nothing serious on her evaluation.” However, according to
Scott’s testimony, she did not think Dr. Knox “did a good job for [her] at all” because “[h]e didn’t
pay attention” to any of her MRI evaluations and he did not pay attention to her because she did
not have insurance to pay him. However, a medical professional and the compensation court
viewed Dr. Knox’s evaluation differently. In this case, Dr. O’Neil relied upon Dr. Knox’s



                                                -9-
examination and assessment to determine MMI, and also concluded that Scott had no permanent
impairment or permanent restrictions. Further, Dr. O’Neil opined that no additional diagnostic or
therapeutic treatment was indicated for Scott’s complaints of back pain and right lower extremity
pain. Dr. O’Neil stated:
       [T]here is ample documentation in the medical records that [Scott] has had a long history
       of low back pain with radicular symptoms dating back to 1990. She has been seen by
       numerous physicians with no objective abnormal physical findings at any time. She has
       had at least three MRI studies of the lumbar spine showing no significant disk herniation
       at any level. She does have very mild degenerative disk disease at L4-L5 and L5-S1 without
       central or foraminal stenosis, which are normal findings for her age [emphasis added]. She
       has not responded to all conservative treatment including chiropractic treatments, physical
       therapy, epidural blocks and steroid injections of the SI joint.

        Although the compensation court agreed with Dr. O’Neil that there was no permanent
impact on Scott’s low back as a result of the March 20, 2010, accident, the court nevertheless
ordered Drivers Management to pay for Scott’s medical treatment for her low back complaints
until the point of MMI in January 2012. However, allowing for the temporary treatment of Scott’s
low back pain is not inconsistent with a finding of zero permanent impairment, especially in this
case where there is considerable evidence of longstanding preexisting complaints of low back pain
and, according to Dr. O’Neil, “no objective abnormal physical findings at any time.” We find no
error in the compensation court’s reliance on Dr. O’Neil’s opinions and the underlying medical
records supporting his conclusions.
        Scott argues in her brief that exhibits 17, 29, 31, 34, 35, 47, and 50 show that her lumbar
spine was not at MMI on January 10, 2012. Exhibits, 17, 31, 34, and 35, are all records from
treatments Scott received before her visit to Dr. Knox on January 10, 2012, the date relied upon
by Dr. O’Neil, and thus, the compensation court, to place Scott at MMI. Since we have already
discussed the evidence properly relied upon by the compensation court to determine MMI as of
that date, we need not consider other treatments preceding that MMI date since this court will not
substitute its judgment for that of the compensation court regarding which medical evidence to
rely upon in reaching its decision. As for the remaining medical records for treatments after
January 10 (exhibits 29, 47, 50) which Scott claims supports her position of not being at MMI for
her back injury, we note that none of these exhibits provides any causal connection between her
ongoing symptoms and the March 2010 accident.
        Scott also appears to be arguing that the compensation court erred because its decision did
not specifically reference four exhibits; we set forth in parentheses a brief summary of Scott’s
arguments as to each exhibit: exhibit 39 (Dr. Kennedy, January 3, 2013, opines 3-percent whole
person permanent impairment rating), exhibit 58 (Dr. Marini, December 22, 2014, says Scott is
unable to work), exhibit 60 (Dr. Bloch, April 27, 2015, states Scott’s symptomology is permanent),
and exhibit 64 (December 28, 2011, loss of earning capacity report notes mild degenerative disk
disease at L4-5, L5-S1 with disk herniation and foraminal stenosis). We find no error by the
compensation court in not specifically referring to these particular portions of these exhibits in
reaching its final decision. As previously noted, the compensation court is entitled to accept the



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opinion of one medical expert over that of another, and as the sole trier of fact, the compensation
court is the sole judge of the credibility of the medical evidence and the weight to be given to it.
See Kerkman v. Weidner Williams Roofing Co., supra.
        The compensation court provided considerable detail in its decision regarding Scott’s
preexisting medical history and her treatment arising from the March 20, 2010, accident. The court
was entitled to accept Dr. O’Neil’s opinion that Scott reached MMI on January 10, 2012, and that
Scott had no permanent restrictions or impairment for her complaints of back pain arising from
the March 20, 2010, accident. An appellate court will not substitute its judgment for that of the
compensation court regarding which medical evidence to rely upon. See Kerkman v. Weidner
Williams Roofing Co., supra.
                                         CONCLUSION
       We find no plain error in the record and affirm the compensation court’s award filed March
14, 2016.
                                                                                       AFFIRMED.




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