Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hostetler v. First State Bank Nebraska And American Guarantee & Liability

Court of Appeals of Nebraska

December 20, 2016

Lisa Hostetler, appellee,
v.
First State Bank Nebraska and American Guarantee & Liability, appellants.

         1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify, reverse, or set aside a decision from the Workers' Compensation Court 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 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.__:__. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court, the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong.

         3. __: __ . An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

         4. Workers' Compensation: Evidence: Appeal and Error. Admission of evidence is within the discretion of the Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.

         5. Workers' Compensation: Rules of Evidence: Due Process. The Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence, but its discretion to admit evidence is subject to the limits on constitutional due process.

         6. Workers' Compensation. Workers' Comp. Ct. R. of Proc. 42(E) (2015) specifically provides that the parties cannot attempt to influence or control the meeting place, the evaluation's outcome, or the vocational rehabilitation counselor's recommendations, but that the employee can.

         [24 Neb.App. 416] 7. __ . Under the odd-lot doctrine, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which a claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his or her crippling handicaps.

         8. Workers' Compensation: Judgments: Appeal and Error. Whether an employee is totally and permanently disabled is a question of fact, and when testing the trial judge's findings of fact, an appellate court considers the evidence in the light most favorable to the successful party.

         9. Trial: Witnesses. As the trier of fact, the trial judge determines the credibility of the witnesses and the weight to give their testimony.

         10. Workers' Compensation: Words and Phrases. Total and permanent disability contemplates the inability of the worker to perform any work which he or she has the experience or capacity to perform.

         11. __: __ . Total disability does not mean a state of absolute helplessness. It means that because of an injury, (1) a worker cannot earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform or (2) the worker cannot earn wages for any other kind of work which a person of his or her mentality and attainments could do.

         Appeal from the Workers' Compensation Court: Laureen K. Van Norman, Judge. Affirmed.

          Patrick J. Mack and Gregory D. Worth, of McAnany, Van Cleave & Phillips, PA., for appellants.

          Franklin E. Miner, of Miner, Scholz & Dike, PC, L.L.O., for appellee.

          Inbody and Pirtle, Judges, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.