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Nichols v. Fairway Building Products, L.P.

Supreme Court of Nebraska

September 2, 2016

Dennis

         1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

         2. __: __. Determinations by a trial judge of the Workers' Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in light of the evidence.

         3. Workers' Compensation: Evidence: Appeal and Error. When testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence.

         4. Workers' Compensation. As the trier of fact, the single judge of the Workers' Compensation Court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

         5. Workers' Compensation: Appeal and Error. Where the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the Workers' Compensation Court.

         [294 Neb. 658] 6. Workers' Compensation: Evidence: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2014), an appellate court may modify an award of the compensation court when there is not sufficient competent evidence in the record to support the award.

         7. Workers' Compensation: Appeal and Error. For the purposes of Neb. Rev. Stat. § 48-125 (Supp. 2015), a reasonable controversy exists if (1) there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the compensation court about an aspect of an employee's claim, which conclusions affect allowance or rejection of an employee's claim, in whole or in part.

         8. Workers' Compensation: Trial: Testimony. When there is some conflict in the medical testimony adduced at trial, reasonable but opposite conclusions could be reached by the compensation court.

         Appeal from the Workers' Compensation Court: John R. Hoffert, Judge.

          Christopher A. Sievers, of Prentiss Grant, L.L.C., for appellants.

          Christa Binstock Israel, of Atwood, Holsten, Brown, Deaver & Spier Law Firm, PC, L.L.O., for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Wright, J.

         NATURE OF CASE

         Fairway Building Products, L.P, and its workers' compensation insurer, Pennsylvania Manufacturers' Association Insurance Co. (collectively Fairway), appeal, and the claimant, Dennis "DJ" Nichols, cross-appeals from an award entered by the Nebraska Workers' Compensation Court in favor of Nichols. The court found that Nichols was permanently and totally disabled as a result of his workplace injury. It determined that Nichols was entitled to temporary total and temporary partial disability benefits for the periods and amounts [294 Neb. 659] stipulated by the parties. In addition, it awarded permanent total disability benefits of $440.27 per week for as long as Nichols remains permanently and totally disabled, plus past and future medical benefits.

         BACKGROUND

         On June 18, 2012, Nichols was operating a forklift in the course of his employment with Fairway when the hydraulic lift dock supporting the forklift collapsed, causing the fork-lift and Nichols to suddenly drop approximately 8 inches. Nichols sought medical treatment later that day, complaining of "piercing" midback to low-back pain that had been persistent for several hours, which he attributed to the forklift accident. An x ray was performed, which did not reveal any abnormalities. Nichols was prescribed a pain medication and was advised to limit lifting, twisting, and bending, apply ice or heat to the area, and take ibuprofen or another over-the-counter pain reliever as needed.

         Nichols testified that he experienced persistent and worsening back pain over the next few months, which gradually extended into his legs and caused urinary urgency and discomfort. He testified that he continued to work through the pain, because he was involved in a child custody dispute at that time and was concerned that if were restricted from working, he would lose custody of his children.

         On July 22, 2012, Nichols presented to a medical clinic reporting "sharp" abdominal pain and discomfort when urinating. Nichols testified that he was still experiencing back pain at that time, but did not know that urinary symptoms could be associated with a low-back injury. His doctor prescribed a pain medication and ordered a urinalysis, which did not show any abnormalities.

         Nichols presented to a urology clinic on October 11, 2012. He reported midback and low-back pain with radiation to the abdomen and continued urinary urgency. Due to his history of kidney stones, the doctor ordered a CT scan, which showed a very small nonobstructing renal stone. The doctor noted [294 Neb. 660] possible swelling in the paraspinous muscles on the left lower thoracic area of Nichols' back, and gave him a shot of medication for his pain. The doctor indicated in the report that she did not believe ...


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