Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/28/2020 01:07 AM CDT




                                                      - 574 -
                               Nebraska Supreme Court Advance Sheets
                                        306 Nebraska Reports
                                         FRANS v. WALDINGER CORP.
                                             Cite as 306 Neb. 574




                     Eric M. Frans, appellee, v. Waldinger Corporation
                            and EMC Insurance Co., appellants.
                                        Filed July 24, 2020.    No. S-19-482.

                 1. Workers’ Compensation: Appeal and Error. An appellate court is
                    obligated in workers’ compensation cases to make its own determina-
                    tions as to questions of law.
                 2. Courts: Appeal and Error. After receiving a mandate, a trial court is
                    without power to affect rights and duties outside the scope of the remand
                    from an appellate court.

                  Petition for further review from the Court of Appeals,
               Moore, Chief Judge, and Bishop and Arterburn, Judges, on
               appeal thereto from the Workers’ Compensation Court, Daniel
               R. Fridrich, Judge. Judgment of Court of Appeals affirmed
               as modified.
                 Caroline M. Westerhold and Jenna M. Christensen, of Baylor
               Evnen, L.L.P., for appellants.
                 Maynard H. Weinberg, of Weinberg & Weinberg, P.C., for
               appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
               and Freudenberg, JJ.
                  Papik, J.
                  The Nebraska Court of Appeals reversed the judgment of
               the Nebraska Workers’ Compensation Court and remanded
               the cause with directions to dismiss Eric M. Frans’ amended
               petition in its entirety. We see no basis for directing Frans’
               entire petition to be dismissed and believe this direction to be
                             - 575 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                   FRANS v. WALDINGER CORP.
                       Cite as 306 Neb. 574

inconsistent with the substance of the Court of Appeals’ opin-
ion. On petition for further review, we thus modify the Court
of Appeals’ opinion to direct the dismissal of Frans’ amended
petition to a limited extent.
                        BACKGROUND
   In October 2002, Frans was injured in an accident arising
out of and in the course of his employment when a garage door
struck him on the top of his head. He initially reported injuries
to his head, neck, and back.
   In 2008, Frans filed a petition in the Workers’ Compensation
Court against his employer, Waldinger Corporation, and
its workers’ compensation insurance carrier (collectively
Waldinger), alleging he was injured in the 2002 work acci-
dent. The parties later entered into a joint settlement agree-
ment in which they agreed that Frans injured his lower back
in the 2002 work accident and “to resolve, on a final basis,
all issues except [Frans’] entitlement to receive reasonable
and necessary medical treatment as a result of [his] low back
condition.” The agreement stated that Waldinger would be
“fully discharged from all further liability, except for future
reasonable and necessary medical care pursuant to Neb. Rev.
Stat. §48-120, . . . on account of the accident and injury(s)
of 10/30/02, whether now known or to become known in the
future, whether physical or mental.” The compensation court
entered an order approving the settlement agreement and dis-
missing the petition.
   Years later, Frans filed a petition in the compensation court
seeking reimbursement for what he claimed was continuing
medical treatment related to the 2002 work accident. In an
amended petition, Frans alleged he had injured his head, neck,
and lower back and requested “continuing medical treatment
including but not limited to treatment for depression arising as
a result of the 10/30/02 back injury as well as other treatment
related to the back injury.”
   A trial was held and evidence was adduced, including,
among other things, medical records and expert opinions of
                             - 576 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                   FRANS v. WALDINGER CORP.
                       Cite as 306 Neb. 574

medical professionals. Following trial, the compensation court
entered an award. The compensation court referenced an ear-
lier order in which it stated that the parties’ 2008 settle-
ment agreement did not preclude Frans from seeking ongoing
medical treatment, including treatment for depression and
anxiety, if such injuries were a result of his low-back condi-
tion. The compensation court found that Frans was entitled to
reimbursement for treatment of his current low-back pain. It
ordered Waldinger to pay for certain medical treatment and
physical therapy for his lower back. The compensation court
also found that there was sufficient evidence to establish
Frans’ depression and anxiety were caused by his low-back
condition and that he was thus entitled to recover for treatment
of his depression and anxiety. It found the evidence was insuf-
ficient, however, to show that Frans’ head and neck injuries
were causally related to his low-back condition and concluded
Frans was not entitled to reimbursement for medical treatment
for such injuries.
   On appeal, the Court of Appeals found that the compensa-
tion court did not err in determining the 2008 settlement agree-
ment did not preclude Frans from seeking medical treatment
for depression and anxiety if such treatment was reasonable
and necessary as a result of Frans’ low-back condition. The
Court of Appeals disagreed, however, that the evidence was
sufficient to establish Frans’ depression and anxiety developed
as a result of his low-back condition, and it thus concluded
Frans was not entitled to medical treatment for his depression
and anxiety. The Court of Appeals did not address or find error
in the compensation court’s finding that Frans was entitled to
reimbursement for treatment for his low-back pain.
   The Court of Appeals reversed the judgment of the com-
pensation court and remanded the cause “with directions to
dismiss Frans’ amended petition.” Similar language appears in
the opinion’s introduction.
   Frans petitioned for further review. Among other assign-
ments of error, he assigned that the Court of Appeals erred
                              - 577 -
         Nebraska Supreme Court Advance Sheets
                  306 Nebraska Reports
                   FRANS v. WALDINGER CORP.
                       Cite as 306 Neb. 574

in directing that his amended petition, in which he sought
reimbursement for future medical treatment for his low-back
condition, be dismissed. We granted Frans’ petition for further
review solely as to that assignment of error.

                 ASSIGNMENT OF ERROR
   As noted, the sole assignment of error on which we have
granted further review is Frans’ contention that the Court
of Appeals erred by directing the dismissal of his amended
petition.

                  STANDARD OF REVIEW
   [1] An appellate court is obligated in workers’ compensa-
tion cases to make its own determinations as to questions of
law. Rogers v. Jack’s Supper Club, 304 Neb. 605, 935 N.W.2d
754 (2019).

                          ANALYSIS
   Frans argues that the Court of Appeals erred by directing
the dismissal of his amended petition in its entirety. He points
out that the Court of Appeals did not reverse the compensation
court’s determination that he was entitled to reimbursement
for treatment prescribed by his physician and physical therapy
for his low-back condition. In its response to Frans’ petition for
further review, Waldinger did not dispute Frans’ contention that
his entire amended petition should not be dismissed. Instead,
it argued that, when read in its entirety, the Court of Appeals’
opinion should be understood to direct only a dismissal of
Frans’ amended petition to the extent it sought recovery for
treatment of his depression and anxiety.
   After granting Frans’ petition for further review, we issued
an order to show cause, pursuant to Neb. Ct. R. App. P.
§ 2-107(A)(3) (rev. 2017), as to why the Court of Appeals’
decision should not be modified so that it directs the com-
pensation court to dismiss Frans’ amended petition only to
the extent it seeks reimbursement for treatment of depression
                               - 578 -
          Nebraska Supreme Court Advance Sheets
                   306 Nebraska Reports
                    FRANS v. WALDINGER CORP.
                        Cite as 306 Neb. 574

and anxiety and head and neck injuries. Waldinger did not
file a response.
   [2] Reading its opinion as a whole, we find it unlikely that
the Court of Appeals intended to direct the compensation court
to dismiss the entirety of Frans’ amended petition on remand.
Its language, however, directs the dismissal of the amended
petition without qualification. We believe this language could
be understood by the compensation court as instructing it to
dismiss the amended petition as a whole, including that por-
tion on which it awarded reimbursement for treatment of
Frans’ lower back. We have stated that after receiving a man-
date, a trial court is without power to affect rights and duties
outside the scope of the remand from an appellate court. See
TransCanada Keystone Pipeline v. Tanderup, 305 Neb. 493,
941 N.W.2d 145 (2020). We have further stated that “when a
lower court is given specific instructions on remand, it must
comply with the specific instructions and has no discretion
to deviate from the mandate.” Id. at 502, 941 N.W.2d at 153.
Given our case law that a lower court has no power to deviate
from the specific instructions in an appellate court’s mandate,
we believe it is appropriate to modify the Court of Appeals’
instruction so that it is consistent with the substance of its deci-
sion and does not jeopardize the recovery awarded to Frans by
the compensation court on which the Court of Appeals did not
find reversible error.
                         CONCLUSION
   Accordingly, we modify the Court of Appeals’ opinion
so that it directs the compensation court to dismiss Frans’
amended petition only to the extent it seeks reimbursement for
treatment for depression and anxiety, as well as the head and
neck injuries. In all other respects, we affirm.
                                        Affirmed as modified.
   Stacy, J., not participating.
