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).
IRWIN, Judge.
David Featherston appeals the order of a three-judge review panel for the Nebraska Workers' Compensation Court which reversed the trial court's modification of the original award. On appeal, Featherston challenges the review panel's finding that the evidence did not support the trial court's finding of fact that Featherston had sustained a permanent whole body impairment constituting an increase of incapacity as required by Neb. Rev. Stat. § 48-141 (Reissue 2010). Because we find that the trial court's modification was based on limitations that existed at the time of the first trial, we affirm.
On September 15, 2002, Featherston was injured during the course and in the scope of his employment, collecting rent and maintaining rental properties for M & M Real Estate. Featherston was riding his motorcycle between rental properties when he was involved in a traffic accident. His left leg was severely broken, and he required surgery and therapy. M & M Real Estate paid workers' compensation benefits and medical expenses for permanent impairment to Featherston's leg. Featherston reached maximum medical improvement on March 13, 2003. On July 27, 2009, Featherston filed a petition in the Nebraska Workers' Compensation Court to determine his workers' compensation benefits for any whole body injury resulting from the residual effects of the compensable leg injury.
The trial court conducted the initial trial on February 5, 2010. Featherston testified that he had been "using a cane full-time" since November 2008 due to pain in his left leg. He had not been able to bear full weight on his left leg since the accident, and he denied being able to fully extend his leg. Featherston stated that his inability to extend his left leg caused a shorter stride on that side. Since the accident, Featherston had walked with an altered gait. Featherston testified that his left and right hips ached, with occasional sharp pains, and that these symptoms had worsened since 2005. Standing and walking caused his symptoms to worsen. From 2005 to the time of trial, Featherston experienced daily leg and back pain. Featherston testified that at times, his hips and back felt like they were connected and stated, "Other times I just — I can't bend, I can't lay down flat." Featherston had been wearing a back brace since 2008.
Following the accident, Featherston was treated by Dr. Matthew Morimo. In a letter dated March 20, 2009, Dr. Morimo stated, "Currently [Featherston] is unable to stand or walk for more than 5 to 10 minutes at a time. He is unable to climb, crawl, kneel, stoop or carry objects greater than 30 pounds." Dr. Morimo assigned a 31-percent permanent partial impairment rating for the lower extremity and a whole body impairment rating of 12 percent.
Dr. Jerry Reed completed a functional capacity assessment in April 2009. He noted that Dr. Morimo's restrictions for standing, walking, climbing, crawling, kneeling, stooping, and carrying seemed more severe than Dr. Reed's examination findings. Dr. Reed noted that Featherston could stoop frequently. Dr. A.R. Hohensee also completed a functional capacity assessment in April 2009, and he made similar findings.
On July 1, 2009, Featherston was evaluated by M & M Real Estate's medical examiner, Dr. Donald M. Gammel. Featherston reported to Dr. Gammel that he had difficulty doing "anything where I have to be on my feet, or bending, stooping."
Vocational consultant Ted Stricklett opined that Featherston had sustained a 100-percent loss of earning capacity. Featherston reported to Stricklett that knee and back pain required him to stop and rest frequently and that he could not walk more than a quarter of a block without stopping. Featherston reported using his cane daily and having to lean on a shopping cart at the store. Featherston also reported that at that time, he was numb from the midthigh down to the foot on the left leg and he had no confidence in his left knee, which swelled daily. In concluding that Featherston was totally and permanently disabled, Stricklett relied on the restrictions set forth in Dr. Morimo's above-referenced report.
On February 12, 2010, the trial court entered its initial award of medical care. It found that Featherston's gait disturbance resulted in an injury to the body as a whole, but the court was not persuaded that a permanent or temporary disability resulted from the whole body injury. The trial court observed that Dr. Morimo did not associate Featherston's restrictions with his back pain and expressed Featherston's impairment only as it related to his leg. The review panel affirmed.
On February 14, 2011, Featherston moved for modification. He alleged that since the first trial, he had sustained an increase in incapacity due solely to his work-related back injury, rendering him permanently totally disabled.
At the modification hearing, Featherston testified that his left leg symptoms had worsened since the initial trial. He stated that his mobility had changed in that he had to be very deliberate with each step. Featherston's pain had become almost unbearable at times. He denied being able to fully extend his left leg or bear the weight of his body on it. Featherston had difficulty walking. He testified that his stride seemed to have shortened and to have put more pressure on his back and hips.
Featherston testified that he had had "major" back pain since the initial trial and experienced back pain daily. He opined that his back pain had increased since the initial trial and rated it at an 8 or 9 on a scale of 10, whereas at the time of the initial trial, his pain was at a 6 or 7. Featherston testified that the pain was located in his lower back on the left side, but that it was moving higher and to his right side. At the time of the first trial, Featherston was not having as much pain on the right side. Featherston opined that his gait had caused his back pain to worsen progressively.
Featherston testified that at the time of the first trial, he could stand 10 minutes, but at the time of the second trial, he could stand only 5 minutes. Featherston testified that at the time of his October 6, 2009, deposition, he was able to stand 15 to 20 minutes. However, his deposition reflects that he could stand "ten, 15, five, ten minutes" on his feet at a time. He testified that he had had those symptoms since 2008, but at the deposition, he stated that the symptoms began in early 2006.
According to Featherston, his back pain had changed how far he could walk and he had had trouble getting out of bed. He described severe pain that he experienced upon waking and testified that he had to put a walker next to his bed to bear his weight. Featherston denied having any accidents or injuries since the first trial.
Featherston testified that he was using a back brace intermittently at the time of the initial trial, but that at the time of the second trial, he used it nearly all the time. After the first trial, he began using a type of back brace that allowed him to apply ice to relieve pain. At the time of the first trial, Featherston used a single-point cane, but at the time of the second trial, he was using a four-pronged cane for additional balance and weight bearing, which relieved some of his pain and which the single-point cane could not provide.
Featherston testified that his symptoms at the time of the second trial had required him to change the type of clothing he wore. Instead of wearing a belt that "puts a lot of pressure" on him, he could only be comfortable in sweat pants or bib overalls. Featherston testified that he was essentially housebound, other than taking his wife to and from work, which required him to use steps to exit and enter his residence. At his October 6, 2009, deposition, Featherston also testified that he was essentially housebound.
Physical therapist Neal Wachholtz completed a functional capacity evaluation (FCE) on January 24, 2011. According to the FCE, Featherston reported pain in his left knee, left hip, and lower back. He also reported discomfort in his right hip and right knee. He told Wachholtz that he suffered increased symptoms with prolonged weight-bearing activities and that therefore, he had modified his activity level significantly. Wachholtz observed objective evidence of limitations in Featherston's left knee mobility, lumbar mobility, and antalgic gait pattern. Wachholtz noted that Featherston demonstrated additional restrictions in lifting, bending, climbing, squatting, et cetera. At trial, Featherston testified that the FCE accurately represented his physical limitations due to back pain.
In the FCE, Wachholtz stated:
Wachholtz estimated a whole person impairment rating of 5 to 8 percent but deferred to the medical opinion of Featherston's physician regarding whether the impairment rating was attributable to a specific injury as defined in American Medical Association guidelines.
Dr. Tyrus Soares, Featherston's physician, completed a medical questionnaire on June 2, 2011. Dr. Soares opined that the 2011 FCE was a fair and accurate representation of the permanent physical limitations that Featherston had sustained to his left leg and back due solely to the September 15, 2002, accident. He further opined that Featherston had sustained a 5- to 8-percent whole body permanent impairment due solely to the injury he sustained to his lower back on September 15, 2002.
At the second trial, the trial court received an updated loss of earning capacity report authored by Stricklett. He opined that Featherston had sustained a loss of earning capacity of 100 percent. In reaching this conclusion, Stricklett considered the 2011 FCE.
The trial court found that Featherston had sustained an increase in incapacity due solely to the original work injury and further found that Featherston was totally and permanently disabled. The trial court based its finding of an increase in incapacity on (1) the opinion of Dr. Soares that Featherston had sustained a 5- to 8-percent whole body impairment and (2) the permanent restrictions in the new FCE. The trial court observed that the FCE found that Featherston showed limitations in forward bending that he did not previously exhibit. The trial court based its finding of total and permanent disability on the permanent restrictions in the new FCE, Featherston's testimony, and Stricklett's report.
The review panel reversed, finding that a modification under § 48-141 was not justified because Featherston's evidence was simply a retrial of the same evidence presented at the original hearing. This, the review panel said, was not a basis for finding a material and substantial change in capacity. The review panel reasoned that although the new FCE did assign additional restrictions after the first trial, those restrictions were tied to symptoms of which Featherston had complained at the first trial (namely, forward-bending limitations), and the impairment rating of 5 to 8 percent was based on the FCE. The review panel essentially concluded that the trial court's finding of fact that Featherston had shown a change was based on limitations that had not changed since the first trial. Featherston appeals to this court.
Featherston assigns that the review panel erred in reversing the trial court's award modifying the original award.
Featherston argues that the review panel incorrectly interpreted § 48-141, which provides that "at any time after six months from the date of the agreement or award, an application may be made by either party on the ground of increase or decrease of incapacity due solely to the injury." To obtain a modification of a prior award, the applicant must prove there exists a material and substantial change for the better or worse in the condition—a change in circumstances that justifies a modification, distinct and different from the condition for which the adjudication had previously been made. Lowe v. Drivers Mgmt., Inc., 274 Neb. 732, 743 N.W.2d 82 (2007). Featherston admits that the original award made no finding of permanent disability to the body as a whole, but he contends that now he has a permanent whole body disability, as the trial court found in the modification award, constituting a substantial increase in incapacity.
On appellate review, the findings of fact made by the trial judge of the Workers' Compensation Court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009). 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. Id. 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. Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010).
It is apparent that the trial judge found Dr. Soares' opinion and the FCE to be credible and persuasive. Because we do not substitute our judgment regarding credibility for that of the trial court, the issue before us is whether that evidence supports the trial judge's determination that there had been a material and substantial change for the worse in Featherston's condition. We conclude that it does not.
We agree with the review panel's reasoning that although the 2011 FCE did assign additional restrictions after the first trial, those restrictions were tied to forward bending, something about which Featherston had complained at the first trial. Additionally, the impairment rating of 5 to 8 percent was based on the 2011 FCE. Like the review panel, we conclude that the trial court's finding of fact that Featherston had shown a change in incapacity was based on limitations that had not changed since the first trial.
We acknowledge that Featherston has suffered a great deal as a result of his injury and that he presented evidence that his pain had increased since the first trial, but increased pain alone does not justify modification. O'Connor v. Anderson Bros. Plumbing & Heating, 207 Neb. 641, 300 N.W.2d 188 (1981). Featherston asserts that his own testimony showed increased limitations, not just increased pain. However, upon our review of the record, we do not find that his testimony shows increased limitations. Moreover, the trial court did not rely on Featherston's testimony for purposes of finding a material and substantial change of incapacity.
Featherston testified that at the time of the first trial, he could stand 10 minutes, but at the time of the second trial, he could stand only 5 minutes. However, his 2009 deposition reflects that he could stand "ten, 15, five, ten minutes" on his feet at a time. According to Featherston, his back pain had changed how far he could walk, but instead of describing a limitation concerning distance or stamina, he described his pain upon waking. Featherston testified at the modification hearing that his use of a back brace had increased since the first trial, but he did not testify why the increased use was necessary or how it related to his limitations. He also testified that after the first trial, he had changed from a single-point cane to a four-pronged cane because the four-pronged cane provided additional assistance for balance and weight bearing, which relieved pain, but he did not connect this change of canes to a change in his physical condition. The evidence shows that Featherston was essentially housebound at the time of his 2009 deposition and modification hearings.
The parties seem to dispute whether an expert opinion is required to show a material and substantial change for the purposes of § 48-141. M & M Real Estate asserts that unless the character of an injury is plainly apparent, it is a subjective condition, and an expert opinion is required to establish the causal relationship between the incident and the injury, as well as any claimed disability consequent to such injury. Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991). Featherston denies that expert testimony is required to establish a change for the purposes of § 48-141. Having found that Featherston's testimony did not show a material and substantial change in incapacity, we do not address this question. See Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008) (appellate court is not obligated to engage in analysis that is not needed to adjudicate controversy before it).
For the foregoing reasons, we conclude that the review panel properly reversed the trial court's award of modification and affirm.
AFFIRMED.
