Gardner v. International Paper Destr. & Recycl., 291 Neb. 415

Gardner sustained a work accident on April 16, 2009, while employed by International Paper Destruction & Recycling, leading to a Workers’ Compensation Court award of temporary benefits in 2010.
Employer petitioned to modify in 2013, asserting Gardner had reached maximum medical improvement and a decrease in incapacity; Gardner denied any decreased/incapacity change.
The court found ongoing physical and cognitive issues, including CSF from an epidural injection, and initially concluded preexisting cognitive deficits were temporary and did not yield permanent impairment.
Gardner later underwent cervical fusion surgery in 2012 after MRI findings; vocational evaluation and medical opinions were gathered to assess loss of earning capacity.
Dr. Rich and Dr. Golnick reported preexisting cognitive deficits and mental health issues affecting employability; Reilly’s loss-of-earning-capacity analysis evolved to include preexisting conditions.
In August 2014, the court applied the odd-lot doctrine, found permanent total disability, and ordered ongoing temporary and permanent benefits and future medical care; the employer appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether law-of-the-case prevented considering mental health later	Gardner argues preexisting mental health issues may be reconsidered only within the law of the case.	International Paper contends the original MMI ruling barred further mental-health consideration.	Law-of-the-case did not bar consideration of preexisting mental health in modification.
Admissibility and weight of Rich and Golnick reports	Gardner contends these reports are relevant to overall disability and earning capacity.	Employer argues the reports concern preexisting/moot issues not admissible under law-of-the-case.	Court properly admitted and weighed Rich and Golnick reports.
Application of odd-lot doctrine to award permanent total disability	Gardner argues combined effects of injury and preexisting conditions support odd-lot-based TT disability.	Employer challenges the use of odd-lot to exceed prior findings.	Court correctly applied the odd-lot doctrine and found permanent total disability.
Whether preexisting cognitive conditions can be used to determine extent of disability	Gardner contends preexisting deficits must be considered in loss-of-earning-capacity analysis.	Employer asserts preexisting conditions were resolved and should not affect the modification.	Preexisting cognitive/mental deficits were properly considered in assessing disability.

Schlup v. Auburn Needleworks, 239 Neb. 854 (Neb. 1992) (odd-lot doctrine applicable to total disability)
Visoso v. Cargill Meat Solutions, 285 Neb. 272 (Neb. 2013) (burden-shifting after MMI; permanent impairment as predicate to PT/TT disability)
Money v. Tyrrell Flowers, 275 Neb. 602 (Neb. 2008) (test for sufficiency of evidence; favorable view to successful party)
Armstrong v. State, 290 Neb. 205 (Neb. 2015) (definition of total disability not requiring absolute helplessness)
Green v. Drivers Mgmt., Inc., 263 Neb. 197 (Neb. 2002) (temporary vs permanent disability; burden after MMI)
Damme v. Pike Enters., 289 Neb. 620 (Neb. 2014) (preexisting condition can combine with work injury to produce disability)