Pearson v. Archer-Daniels-Midland Milling Co.

568 	285 NEBRASKA REPORTS
Edward cites no authority for his contention that a juvenile’s
parent must be present during the State’s assessment of the
juvenile’s treatment needs, and the record shows that Sharon
participated telephonically during a clinical evaluation. OJS
included her comments in its report. Moreover, the record
shows that the professionals evaluating Edward’s treatment
needs fully considered his psychiatric and intellectual needs
during their testing. And Edward fails to identify any state-
ments that he made during the evaluation process that were
inaccurate or that would have changed the recommendation
in these cases. More important, rehabilitation under any lesser
disposition would depend on Edward’s compliance with a
probation program, which he had already failed.27 The court
did not err in concluding that probation had been inadequate
and that Edward’s conduct and the public’s safety required his
treatment in a secure facility.
A ffirmed.
27 See § 43-286(1)(a).
ThomAs L. P eArson, APPeLLAnT, v. A rcher-dAnieLs -midLAnd
miLLing comPAny, APPeLLee.
828 N.W.2d 154
Filed March 22, 2013. 	No. S-12-729.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court
review panel, a higher appellate court reviews the findings of the trial judge who
conducted the original hearing; the findings of fact of the trial judge will not be
disturbed on appeal unless clearly wrong.
2. Evidence: Words and Phrases. Competent evidence means evidence that tends
to establish the fact in issue.
3. Workers’ Compensation: Evidence: Appeal and Error. In testing the suf-
ficiency 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

PEARSON v. ARCHER-DANIELS-MIDLAND MILLING CO. 	569
Cite as 285 Neb. 568
4. Workers’ Compensation. The single judge of the Workers’ Compensation Court
is the sole judge of the credibility of the witnesses and the weight to be given
their testimony, even where the issue is not one of live testimonial credibility.
5. Workers’ Compensation: Evidence: Appeal and Error. If the record contains
evidence to substantiate the factual conclusions reached by the trial judge in
workers’ compensation cases, an appellate court is precluded from substituting its
view of the facts for that of the compensation court.
6. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the Workers’ Compensation Court. Affirmed.
Eric B. Brown, of Atwood, Holsten, Brown & Deaver Law
Firm, P.C., L.L.O., for appellant.
Brynne E. Holsten, of Engles, Ketcham, Olson & Keith,
P.C., for appellee.
heAvicAn, c.J., WrighT, connoLLy, sTePhAn, mccormAck,
miLLer-L ermAn, and cAsseL, JJ.
cAsseL, J.
INTRODUCTION
After Thomas L. Pearson obtained a workers’ compensa-
tion award that covered future medical treatment “which falls
under the provisions of § 48-120” of the Nebraska Revised
Statutes, he underwent knee replacement surgery and sought
a further award of benefits. A single judge of the Workers’
Compensation Court denied his petition, and a divided review
panel affirmed. Because there was sufficient evidence to sup-
port the single judge’s factual finding that the surgery did not
result from the work-related injury and because the single
judge properly applied the original award, we affirm.
BACKGROUND
Pearson was injured during the course of his employment at
Archer-Daniels-Midland Milling Company (ADM) on October
27, 2006, and filed for workers’ compensation benefits. At the
hearing on Pearson’s petition, the parties offered into evidence
medical records containing the opinions of several different
medical providers who had evaluated or treated Pearson’s inju-
ries. To the extent that it is necessary to review the evidence

570 	285 NEBRASKA REPORTS
presented at the various hearings, we do so in the analysis sec-
tion below.
In August 2008, the Workers’ Compensation Court issued
an award for injuries to Pearson’s lower back and right knee.
There was no allegation of any injury to the left knee. The
court ordered ADM to pay all of Pearson’s outstanding medical
bills and temporary total disability benefits for both injuries.
In considering permanent disability benefits, the court focused
heavily on the right knee injury, noting that
[t]he need for the particulars surround[ing] the actual
injury is driven, in part, by the fact that [Pearson] suffered
an injury to that same right knee in 2001 . . . that [Pearson]
was diagnosed with osteoarthritis in that knee prior to the
subject accident . . . that [Pearson] complained of signifi-
cant pain in his right knee in the year prior to his accident
. . . and, the existence of similarities in the complaints by
[Pearson] both pre[-] and post-accident . . . .
After reviewing the evidence, the court found “a causal link
between [Pearson’s] knee complaints and the subject accident”
and that he had reached maximum medical improvement.
Nonetheless, the court also concluded that this “aggravation or
exacerbation of [Pearson’s] pre-existing arthritic condition was
not persuasively established as permanent in nature.” The court
did not identify any permanent restrictions or permanent medi-
cal impairment ratings resulting from the knee injury. Given
these conclusions, the court awarded permanent disability ben-
efits for the low-back injury only.
Despite finding that the evidence did not establish perma-
nency of the right knee injury, the Workers’ Compensation
Court awarded Pearson future medical expenses for the injury
because it was persuaded that “future medical treatment will
be reasonably required.” Specifically, the court ordered that
“[a]ny future medical treatment received by [Pearson] which
falls under the provisions of § 48-120, and which otherwise
satisfies all necessary foundational elements thereto, should be
provided at the expense of [ADM].”
Following the award, Pearson had further difficulties with
his right knee and eventually had total knee replacement
surgery. After this surgery, Pearson filed an application for

PEARSON v. ARCHER-DANIELS-MIDLAND MILLING CO. 	571
Cite as 285 Neb. 568
modification of the original award. He alleged that the surgery
resulted in “a material and substantial change in his physi-
cal condition and an increase in disability since [the original
award].” In considering Pearson’s request for modification,
the Workers’ Compensation Court reviewed all evidence previ-
ously admitted in the case and received additional evidence as
to the surgery.
After a hearing, a single judge of the Workers’ Compensation
Court denied Pearson’s request for compensation of his right
knee replacement surgery and for indemnity benefits. The
court explained that “[t]he issue of [Pearson’s] entitlement to
knee replacement surgery was presented . . . at the time of
the original trial held on June 16, 2008,” and that “[w]hile
[Pearson’s] request for right knee replacement surgery was not
expressly denied [in the original award], it most assuredly was
implied.” On appeal, the review panel of the compensation
court affirmed.
On further appeal, however, this court reversed that part
of the compensation court’s decision denying Pearson’s knee
replacement surgery and remanded the cause “for a factual
determination as to whether Pearson’s knee replacement falls
under the provisions of § 48-120.”1 In reaching this con-
clusion, we specifically considered and rejected the review
panel’s conclusion that the compensability of knee replace-
ment surgery was implicitly denied in the original award,
holding that “there was no basis at [the time of the original
award] for the court to rule one way or the other” on the issue
of knee replacement and that “a work-related injury need not
result in permanent disability in order for medical treatment to
be awarded.”2
On remand, a single judge of the Workers’ Compensation
Court found that Pearson’s right knee replacement surgery
“does not fall under the provisions of § 48-120 and, thus, is
not the responsibility of [ADM].” Relying upon the opinions
of two doctors and rejecting that of a third, the court concluded
1 Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 408, 803
N.W.2d 489, 495 (2011).
2 Id. at 406, 803 N.W.2d at 494.

572 	285 NEBRASKA REPORTS
that (1) Pearson “did not sustain any permanent impairment
as a result of the injury to his right knee,” (2) Pearson’s knee
injury “is best described as a temporary exacerbation of a pre-
existing knee condition,” and (3) Pearson’s knee replacement
surgery “was not persuasively established to be the product
of the subject accident but, rather, prompted by [his] pre-
existing degenerative knee condition.” Pearson appealed to a
review panel.
On appeal, two judges of the review panel affirmed, with
the third judge dissenting. In affirming, the two-judge major-
ity reasoned:
While it is true that there was evidence in the record
which the trial judge could have relied upon in finding for
[Pearson], [the single judge of the Workers’ Compensation
Court] found that evidence unpersuasive. When read in its
entirety, the deposition of Dr. David J. Clare . . . contains
numerous qualified answers which a finder of fact could
reasonably question.
It is the role of the trial judge to determine which, if
any, expert witnesses to believe. The review panel cannot
reweigh the evidence and substitute its judgment for that
of the trial court.
The third judge of the review panel disagreed, citing to
evidence in the record which he believed established that knee
replacement surgery was causally related to the work-related
accident. He explained: “The denial of [Pearson’s] request
for benefits for the total knee arth[r]oplasty is based upon
the argument that the sole proximate cause of the need for
surgery was the preexisting arthritic condition. Dr. [David]
Clare’s deposition, which is the only evidence on the issue,
proves otherwise.”
Pearson timely appeals.
ASSIGNMENTS OF ERROR
Pearson argues, restated, that the review panel erred in
affirming the single judge’s order finding that his knee replace-
ment surgery was not compensable, because such finding is
not supported by the medical records received into evidence
and is “legally inconsistent” with the original award. Pearson

PEARSON v. ARCHER-DANIELS-MIDLAND MILLING CO. 	573
Cite as 285 Neb. 568
also argues that the compensation court should have awarded
Pearson additional indemnity benefits stemming from the knee
replacement surgery.
STANDARD OF REVIEW
[1] In determining whether to affirm, modify, reverse, or set
aside a judgment of the Workers’ Compensation Court review
panel, a higher appellate court reviews the findings of the
trial judge who conducted the original hearing; the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.3
ANALYSIS
sufficiency of evidence
[2] Pearson’s first assignment of error alleges that the medi-
cal records received into evidence did not support a finding
that his right knee replacement surgery was not compensable.
More specifically, he alleges that the review panel had cause
to reverse the decision of the single judge of the Workers’
Compensation Court under Neb. Rev. Stat. § 48-185 (Cum.
Supp. 2012). Section 48-185 allows a judgment of the com-
pensation court to be modified, reversed, or set aside based
on the ground that “there is not sufficient competent evidence
in the record to warrant the making of the order, judgment,
or award.” Competent evidence means evidence that tends to
establish the fact in issue.4
According 	to 	Pearson, 	the 	review 	panel 	should 	have
reversed the trial court’s finding that his knee replacement
surgery did not fall under Neb. Rev. Stat. § 48-120(1)(a) (Cum.
Supp. 2012) on the ground of insufficient evidence. Section
48-120(1)(a) states that medical, surgical, or hospital services
are compensable if they (1) are reasonable, (2) are required
by the work injury, and (3) “will relieve pain or promote and
hasten the employee’s restoration to health and employment.”
As we decided on the last appeal of this case, the compensation
3 Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012).
4 Ahmann v. Nebraska Dept. of Corr. Servs., 278 Neb. 29, 767 N.W.2d 104
(2009).

574 	285 NEBRASKA REPORTS
court did not rule “one way or the other” on the compensability
of possible knee replacement surgery under § 48-120(1)(a) in
the original award.5
Of the three factors in § 48-120(1)(a), only the second one
was contested—whether Pearson’s knee replacement surgery
was required by the work-related injury. Because the trial court
found that Pearson’s knee surgery was not required by the
work-related injury and therefore was not compensable under
§ 48-120(1)(a), the exact question before the review panel was
whether there was sufficient competent evidence to conclude
that Pearson’s knee surgery was not required by the work-
related injury to his right knee.
[3] 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.6 In this case, ADM—the employer—was the suc-
cessful party. Thus, we view the evidence in its favor and give
it the benefit of all favorable inferences.
Contrary to Pearson’s assertion, there was competent evi-
dence to support the finding of the single judge of the
Workers’ Compensation Court that the knee replacement sur-
gery “was not persuasively established to be the product of
the subject accident but, rather, prompted by [his] preexisting
degenerative knee condition.” The medical records received
into evidence included the expert medical opinions of Dr.
D.M. Gammel, which opinions directly supported the conclu-
sion that Pearson’s knee replacement surgery was necessitated
by a preexisting condition and not the work-related accident.
About 1 year after the work-related accident, Gammel exam-
ined Pearson’s right knee and made the following findings:
(1) that Pearson “sustained a temporary exacerbation of a
pre-existing knee condition,” (2) that Pearson “sustained a
5 Pearson v. Archer-Daniels-Midland Milling Co., supra note 1, 282 Neb. at
406, 803 N.W.2d at 494.
6 Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010).

PEARSON v. ARCHER-DANIELS-MIDLAND MILLING CO. 	575
Cite as 285 Neb. 568
right knee strain as a result of the work[-]related injury on
27 October 2006 and his present condition . . . is due to the
pre-existing osteoarthritis,” (3) that Pearson’s knee condition
“is a natural progression of [t]he pre-existing condition,” (4)
that Pearson reached maximum medical improvement in April
2007, (5) that there were no permanent restrictions as a result
of the work-related injury, (6) that “any restriction regarding
the right knee is related to a pre-existing condition,” and (7)
that “any further right knee treatment is necessary as a result
of the pre-existing condition.” Given Gammel’s expert medi-
cal opinions, the compensation court could reasonably con-
clude that Pearson’s knee replacement surgery was required
not by the work-related accident, but, rather, by the preexist-
ing arthritis.
The medical records provide further support for this conclu-
sion. Two other doctors had diagnosed Pearson with arthritis
in both knees prior to the work-related injury, although the
condition was worse in the right knee than in the left knee.
And well after the work-related accident but prior to the knee
replacement surgery, Pearson began experiencing symptoms in
his left knee that were identical to the symptoms in his right
knee. Because Pearson was experiencing identical symptoms
in both knees and both knees were affected by arthritis but
only one knee was injured in the work-related accident, the
Workers’ Compensation Court could reasonably infer that the
bilateral symptoms persisting long after the accident and up to
the time of surgery were caused by the condition affecting both
knees—the arthritis—and not by the condition affecting only
one of the knees—the injury at work. If the symptoms neces-
sitating surgery were caused by arthritis and not the work-
related injury, it necessarily follows that the need for surgery
did not result from the work-related injury.
This evidence, when considered in the light most favorable
to ADM, tends to establish that Pearson’s continuing knee
problems following the accident and the symptoms meant to
be alleviated by knee replacement surgery were the result of
preexisting arthritis and not the work-related injury. Under
§ 48-120(1)(a), the trial judge of the Workers’ Compensation
Court could find that Pearson’s knee replacement surgery

576 	285 NEBRASKA REPORTS
was compensable only if the procedure was required by the
work-related accident. Therefore, there was sufficient com-
petent evidence to support a finding that the surgery did
not fall under § 48-120(1)(a), because it was not the result
of the work-related injury. The review panel did not err in
so concluding.
Pearson spends much of his brief detailing the opinions of
other doctors that could support a finding that his right knee
replacement surgery was a result of the work-related injury.
We do not dispute that the opinions of Drs. David Clare and
Dennis Bozarth, although less definitive than that of Gammel,
could support such a finding. But that is not the proper ques-
tion before us. We are required to determine whether the evi-
dence was sufficient to support the single judge’s decision, not
whether the judge could reasonably have decided differently.
Pearson argues in effect that the review panel should have
reweighed the evidence and that we should do so as well. We
decline the invitation.
[4] Our case law is clear that “[t]he single judge of the
Workers’ Compensation Court is the sole judge of the credibil-
ity of the witnesses and the weight to be given their testimony,
even where the issue is not one of live testimonial credibility.”7
Additionally, a trial judge of the compensation court is “enti-
tled to accept the opinion of one expert over another”8 and is
“not required to take an expert’s opinion as binding,” but may
“either accept or reject such an opinion.”9
Under these well-established principles, the single judge of
the Workers’ Compensation Court was not required to accept
the testimony of Clare and Bozarth but was free to accept
Gammel’s opinions. And Gammel’s opinions, along with other
evidence, provided sufficient competent evidence to support a
finding that Pearson’s knee replacement surgery was not the
7 Swanson v. Park Place Automotive, 267 Neb. 133, 141-42, 672 N.W.2d
405, 413 (2003).
8 Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 739, 743 N.W.2d 82, 89
(2007).
9 Brandt v. Leon Plastics, Inc., 240 Neb. 517, 520, 483 N.W.2d 523, 525
(1992).

PEARSON v. ARCHER-DANIELS-MIDLAND MILLING CO. 	577
Cite as 285 Neb. 568
result of the work-related accident. Because the court found
that the surgery did not result from the work-related accident,
the surgery was not compensable under § 48-120(1)(a).
[5] The review panel was bound by the well-established
rule requiring its deference to the factual findings of the single
judge. “If the record contains evidence to substantiate the
factual conclusions reached by the trial judge in workers’ com-
pensation cases, an appellate court is precluded from substitut-
ing its view of the facts for that of the compensation court.”10
The review panel correctly declined to substitute its view
of the evidence and did not err in affirming the trial court’s
order denying Pearson compensation for his knee replace-
ment surgery.
consisTency WiTh originAL AWArd
Like the previous assignment of error, Pearson’s second
assignment of error alleges that the review panel erred in
affirming the decision of the single judge of the Workers’
Compensation Court that the knee replacement surgery was
not compensable. Under this assignment of error, however, he
argues that it was error to affirm a finding that the surgery was
not compensable, because such finding is “contrary to the law
in that it is legally inconsistent . . . with the findings of the
original decree”11 and “glosses over the fact that future medical
care has already been awarded, and [cannot] be read to pre-
clude any type of medical care based on a determination that
[Pearson’s] injury was a temporary exacerbation.”12
This argument asks us to contradict the holding of this court
in the previous appeal of Pearson’s workers’ compensation
case. In that appeal, we held that Pearson’s knee replacement
surgery “should be provided at ADM’s expense” only “if [the
surgery] was due to his compensable injury.”13 In remanding
10 Manchester v. Drivers Mgmt., 278 Neb. 776, 783, 775 N.W.2d 179, 185
(2009).
11 Brief for appellant at 8.
12 Id. at 25 (emphasis in original).
13 Pearson v. Archer-Daniels-Midland Milling Co., supra note 1, 282 Neb. at
406, 803 N.W.2d at 494.

578 	285 NEBRASKA REPORTS
the cause for a determination about Pearson’s knee replacement
surgery, we also stated:
This is not to say that the knee replacement is nec-
essarily 	compensable. 	Rather, 	the 	award 	should 	be
enforced according to its terms—Pearson was awarded
“[a]ny future medical treatment received by [Pearson]
which falls under the provisions of § 48-120, and which
otherwise satisfies all necessary foundational elements
thereto . . . .”14
Given our previous holdings, the Workers’ Compensation
Court was not acting contrary to the original award when it
determined that the knee replacement surgery was not com-
pensable under § 48-120 but was actually enforcing the plain
language of the original award. Under the original award as
interpreted by this court, Pearson was entitled to compensa-
tion for future medical treatment only if the treatment met
the requirements of § 48-120. Pearson has not asked us to
reconsider this holding, nor could we do so under the law-of-
the-case doctrine without proof of a material and substantial
difference in facts.15 Thus, it was completely consistent with
the original award for the compensation court to conclude that
Pearson’s knee replacement surgery was not required by the
work-related injury and consequently was not compensable
under § 48-120.
The original award may have awarded Pearson future medi-
cal expenses, but this award was not without restriction and did
not entitle Pearson to reimbursement for any expense without
question, as he seems to argue. This assignment of error has
no merit.
remAining A ssignmenT of error
[6] Because we find that there was no error in concluding
that the knee replacement surgery was not compensable under
§ 48-120, there is no need to address Pearson’s third assign-
ment of error, which alleges error in failing to award addi-
tional indemnity benefits for his right knee surgery in addition
14 Id. at 408, 803 N.W.2d at 495.
15 See Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998).

PEARSON v. ARCHER-DANIELS-MIDLAND MILLING CO. 	579
Cite as 285 Neb. 568
to reimbursement for the expense of the surgery itself. An
appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it.16
CONCLUSION
Because Gammel’s opinions, along with other evidence, pro-
vided sufficient competent evidence to support a finding that
Pearson’s knee replacement surgery was not the result of the
work-related accident, the Workers’ Compensation Court did
not err in finding that Pearson’s surgery was not compensable
under § 48-120. In so holding, the compensation court was not
acting contrary to the original award but was enforcing the
award’s plain language. Finding no error, we affirm the order
of the review panel affirming the denial of compensation for
Pearson’s knee replacement surgery.
A ffirmed.
16 Selma Development v. Great Western Bank, ante p. 37, 825 N.W.2d 215
(2013).