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In Wynne v. Menard, Inc., No. S-17-702, (299 Neb. 79), the Supreme Court of Nebraska determined the standard.

Machelle Wynne (“Wynne”) was employed by Menard, Inc. (“Menard”) and worked at a Menard store in Nebraska. She was injured on the job on two different occasions—a knee injury suffered in September of 2013, and a shoulder injury suffered in July of 2014.

In August of 2015, the Workers’ Compensation Court found that Wynne had been injured in the scope and course of her employment, that she had not reached maximum medical improvement, and that she was entitled to further medical treatment and temporary total disability payments until maximum medical improvement was reached. A functional capacity evaluation (“FCE”) was conducted in December of 2016. The results of the FCE noted that Wynne should reach overhead and forward only occasionally; should not squat, crawl, or walk on uneven surfaces; and should engage in static standing, walking, kneeling, balancing, and climbing ladders or stairs infrequently. The FCE included no restrictions on sitting.

In February of 2017, Wynne’s family practice physician, notified Wynne’s attorney that Wynne was restricted from sitting for more than 10 minutes at one time and therefore considered permanently and totally disabled. The doctors for Menard disagreed. Wynne later filed a motion for summary judgment. The Workers’ Compensation Court granted the motion as to Wynne’s claim that she had reached maximum medical improvement and denied the motion as to Wynne’s allegation of permanent disability.

On appellate review, the factual findings 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.  Wynne claims that Menard admitted that she was permanently and totally disabled. Menard disagrees, saying it admitted that some experts said Wynne was permanently and totally disabled, but that it did not admit the truth of those opinions.

The Supreme Court of Nebraska rejected Wynne’s attempt to characterize Menard’s admissions as conclusive proof that Wynne was permanently and totally disabled. The requests were drafted in such a way that an admission was conclusive—not to the truth of the underlying statement, but only as to the fact that the opinions were given as set forth in the requests. There is no merit to Wynne’s first assignment of error.

Wynne contended that the trial court was in error in denying her summary judgment. Wynne’s motion for summary judgment alleged she was entitled to a summary judgment as a matter of law because of the extent of her injuries and her disability. However, the only basis for such a judgment argued at the hearing on the motion was Wynne’s theory that she was permanently and totally disabled. Wynne’s motion was granted, but on a theory not advanced by Wynne at that hearing. Thus, Wynne was the moving party but, as to her preferred theory, she was the losing party in that summary judgment was not granted finding her to be permanently and totally disabled.

At trial, Menard and Wynne disagreed as to whether or not Wynne was permanently disabled. At the summary judgment stage, the trial court determines whether the parties are disputing a material issue of fact. It does not resolve the factual issues. Summary judgment is an extreme remedy and should not be used to deprive a litigant of a formal trial if there is a genuine issue of material fact. The Court reverses the grant of summary judgment as to Wynne’s claim of permanent and total disability, and remand the cause for further proceedings.

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