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Roness v. Wal-Mart Stores, Inc.

Court of Appeals of Nebraska

August 27, 2013

Anna Marie Roness, appellee,
v.
Wal-Mart Stores, Inc., appellant.

1. Workers' Compensation: Judgments: Evidence: Appeal and Error. Under Neb. Rev. Stat. § 48-185 (Reissue 2010), a judgment of the Workers' Compensation Court may 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.

2. Evidence: Words and Phrases. Competent evidence means evidence that tends to establish the fact in issue.

3. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court, an appellate court will not disturb the findings of fact of the trial judge unless clearly wrong.

4. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact by the Workers' Compensation Court, the evidence is considered in the light most favorable to the successful party, every controverted fact is resolved in favor of the successful party, and the successful party has the benefit of every inference that is reasonably deducible from the evidence.

5. Workers' Compensation: Proof: Expert Witnesses. To recover compensation benefits, an injured worker is required to prove by competent medical testimony a causal connection between the alleged injury, the employment, and the disability.

6. Workers' Compensation: Expert Witnesses. If the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability.

7. Workers' Compensation: Expert Witnesses: Words and Phrases. Although expert medical testimony need not be couched in the magic words "reasonable medical certainty" or "reasonable probability, " it must be sufficient [21 Neb.App. 212] as examined in its entirety to establish the crucial causal link between the plaintiff's injuries and the accident occurring in the course and scope of the worker's employment.

8. Workers' Compensation: Rules of Evidence: Appeal and Error. The compensation court is not bound by the usual common-law or statutory rules of evidence; admission of evidence is within the discretion of the compensation court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.

9. Workers' Compensation: Evidence: Due Process. The compensation court's discretion to admit evidence is subject to the limits of constitutional due process.

10. Workers' Compensation: Evidence. Workers' Comp. Ct. R. of Proc. 10 (2011) allows for the introduction into evidence of signed medical reports in place of live expert testimony; such reports would often be hearsay in trial courts.

11. ___: ___. Workers' Comp. Ct. R. of Proc. 10 (2011) allows the compensation court to admit into evidence medical reports that would not normally be admissible in trial courts, provided that those reports are signed.

Appeal from the Workers' Compensation Court: J. Michael Fitzgerald, Judge.

Jennifer S. Caswell, of Ritsema & Lyon, P.C., for appellant.

Michael W. Meister for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Irwin, Judge.

I. INTRODUCTION

Wal-Mart Stores, Inc. (Wal-Mart), appeals an order of the Nebraska Workers' Compensation Court awarding temporary benefits and payment of medical bills in favor of Anna Marie Roness for an aggravation of carpal tunnel syndrome allegedly caused by Roness' employment with Wal-Mart. On appeal, Wal-Mart challenges the compensation court's admission of and reliance on reports and deposition testimony of a physician's assistant in lieu of live testimony and challenges the court's finding that Roness demonstrated with sufficient medical evidence that there was a compensable injury caused by her employment. We find that there was not sufficient evidence to support an award of benefits, without the need to resolve the question concerning the admissibility of depositions or reports of physician's assistants. We reverse.

[21 Neb.App. 213] II. BACKGROUND

In August 2011, Roness filed a petition in the Workers' Compensation Court, seeking benefits from an alleged work-related accident. Roness alleged that she had been injured on or about December 19, 2010, and alleged that the injury suffered was an aggravation of bilateral carpal tunnel syndrome.

1. Factual Background

Roness testified that in 2005, prior to her employment with Wal-Mart, she had undergone surgery to relieve carpal tunnel syndrome in her right hand. She testified that the surgery had been successful and that she experienced no continuing problems after a period of 5 or 6 months' recovery time.

In September 2010, Roness began working for Wal-Mart. She worked the overnight shift in the dairy department. She testified that her job duties involved "offload[ing]" and "downstack[ing]" pallets, placing freight onto carts, and stocking shelves.

Roness testified that on or about December 19, 2010, she helped other employees unload "milk freight." This was not something that she normally did, but she helped out on this occasion. She testified that "milk freight" involved removing crates of milk from pallets and placing them into a cooler. She testified that the crates arrived "stacked five high, " that there were "nine stacks on a pallet, " and that each crate had to be removed from the pallet and stacked in the cooler. She testified that between 15 and 20 pallets of milk came in each shipment.

Roness testified that in December 2010, her "hands felt funny." She testified that "[t]hey felt different than they did the last time" and that she "wasn't sure what was wrong with them." She described the sensation as "buzzing, like you were holding onto something that vibrates." She testified that she experienced this sensation in both hands. According to Roness, the symptoms began before she did "milk freight, " but they became "significantly worse after [she] did milk freight."

Roness testified that she did not immediately report any issues to management, because other employees had told her that "as long as [she] could do [her] job, [she] probably should [21 Neb.App. 214] keep [her] mouth shut." She testified that she initially could still do her job, but that eventually, "[i]t got worse and worse and then it got painful and then [her hands] went completely numb, " causing her to start "dropping product."

In April 2011, Roness reported her injury to management and stopped working. She testified that she filled out an incident report, and Wal-Mart sent her ...


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