Wynne v. Menard, Inc.
299 Neb. 710
| Neb. | 2018Background
- Machelle Wynne, a Menard employee, suffered a knee injury (Sept. 25, 2013) and a shoulder/rotator-cuff injury (July 8, 2014) arising out of employment.
- Workers’ Compensation Court previously found Wynne injured in scope of employment and entitled to ongoing medical treatment and temporary total disability until MMI; later she had rotator cuff surgery and reached MMI on Oct. 24, 2016.
- FCE by occupational therapist Theresa Olson (Dec. 1, 2016) imposed various physical limitations but no sitting restriction; family physician Dr. Cheloha later completed a form stating Wynne cannot sit more than 10 minutes at a time.
- Vocational expert Ted Stricklett initially opined a 100% loss of earning capacity if Wynne could not sit more than 10 minutes; Dr. Douglas Scott (occupational medicine) opined Wynne could work 8 hours/day within restrictions and that no spinal injury supported a sitting restriction.
- Wynne served requests for admission; Menard admitted that Cheloha and Stricklett had expressed the opinions reflected in specified documents but noted Cheloha did not expressly call restrictions "permanent."
- Wynne moved for summary judgment seeking declaration she was permanently and totally disabled and entitlement for scheduled-member benefits; the compensation court awarded scheduled-member benefits but denied permanent-total-disability, weighing conflicting evidence and admitting several contested exhibits. Wynne appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of Menard's admissions to requests for admission | Wynne: Menard admitted she is permanently and totally disabled via admissions; admissions are conclusive. | Menard: Admissions only concede that certain experts rendered opinions as stated, not the truth of those opinions. | Court: Admissions established only that the experts gave those opinions as described; they were not conclusive proof Wynne was permanently and totally disabled. |
| Admissibility of unsworn exhibits (FCE, therapist letters, vocational reports) on summary judgment | Wynne: Exhibits 34, 36–38 are unsworn and therefore inadmissible under summary judgment evidence rules. | Menard: Relied on those exhibits and accompanying affidavit evidence to rebut Wynne's prima facie showing. | Court: Did not decide admissibility; even if admissible, Menard’s affidavit-attached report from Scott created a triable factual issue. |
| Whether Wynne was entitled to summary judgment on permanent and total disability | Wynne: Submitted Cheloha’s and Stricklett’s opinions and related evidence proving permanent and total disability as a matter of law. | Menard: Submitted contrary expert opinion (Scott) and later amended vocational opinion to show a factual dispute precluding summary judgment. | Court: Reversed the portion granting scheduled-member benefits and rejecting permanent-total claim; trial court erred by weighing evidence. Remanded for further proceedings. |
| Whether trial court properly weighed evidence at summary judgment | Wynne: Trial court should have granted summary judgment on permanent-total disability (or at least not weigh conflicting expert opinions). | Menard: Trial court permissibly considered and weighed evidence to deny permanent-total claim. | Court: Trial court erred by resolving factual disputes at summary judgment; weighing evidence was improper and required remand. |
Key Cases Cited
- Anderson v. EMCOR Group, 298 Neb. 174 (cited regarding statutory/precedential standards in workers’ compensation context)
- Moreno v. City of Gering, 293 Neb. 320 (cited on related evidentiary or disability principles)
- C.E. v. Prairie Fields Family Medicine, 287 Neb. 667 (explaining standard that summary judgment is improper where reasonable minds could draw different conclusions)
- Cookson v. Ramge, 307 Neb. _ (referenced procedural authority in requests for admission context)