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Hintz v. Farmers Cooperative Association

Supreme Court of Nebraska

September 29, 2017

Ian T. Hintz, appellant,
Farmers Cooperative Association, appellee.

         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 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. ___:___. Findings of fact made by the Workers' Compensation Court have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous.

         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. The Nebraska Workers' Compensation Act provides that when an employee suffers personal injury caused by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation from his or her employer if the employee was not willfully negligent at the time of receiving such injury.

         5. Workers' Compensation: Proof. In order to recover under the Nebraska Workers' Compensation Act, a claimant has the burden of proving by a preponderance of the evidence that an accident or occupational disease arising out of and occurring in the course of employment proximately caused an injury which resulted in disability compensable under the act.

         [297 Neb. 904] 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. Expert Witnesses. Triers of fact are not required to take the opinions of experts as binding on them.

         8. Workers' Compensation: Expert Witnesses. It is the role of the Nebraska Workers' Compensation Court as the trier of fact to determine which, if any, expert witnesses to believe.

         9. 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.

         10. Evidence: Words and Phrases. "Competent evidence" is defined as that which is admissible and relevant on the point in issue or, stated another way, admissible and tending to establish a fact in issue.

         11. Expert Witnesses. When the subject matter is wholly scientific or so far removed from the usual and ordinary experience of the average man that expert knowledge is essential to the formation of an intelligent opinion, only an expert can competently give opinion evidence as to the cause of the physical condition.

         12. Trial: Witnesses. The question as to the competency of a witness must be initially determined by the trial court.

         13. ___:___. The credibility and weight of the testimony to be given to a witness are for the trier of fact to determine.

         14. Expert Witnesses: Physicians and Surgeons. For purposes of determining whether a medical expert's testimony is admissible, it is acceptable, in arriving at a diagnosis, for a physician to rely on examinations and tests performed by other medical practitioners.

         Petition for further review from the Court of Appeals, Inbody and Pirtle, Judges, and McCormack, Retired Justice, on appeal thereto from the Workers' Compensation Court, Thomas E. Stine, Judge. Judgment of Court of Appeals reversed, and cause remanded with direction.

          Thomas R. Lamb and Richard W. Tast, Jr., of Anderson, Creager & Wittstruck, PC, L.L.O., for appellant.

          Jason A. Kidd, of Engles, Ketcham, Olson & Keith, PC, for appellee.

         [297 Neb. 905] Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy. Kelch, and Funke, JJ.

          FUNKE, J.

         The issues in this litigation were the nature and extent of a work-related injury sustained by Ian T. Hintz, an employee of Farmers Cooperative Association (Farmers). The Nebraska Workers' Compensation Court found that Hintz' work-related injury was fully resolved within 3 days of the work accident and that Hintz' need for additional medical treatment was the result of a non-work-related injury. Upon appeal, the Nebraska Court of Appeals reversed the decision and remanded the cause with directions for the court to reconsider the claim in light of competent medical opinion of causation and considering the beneficent purpose of the Nebraska Workers' Compensation Act.[1]

         We hold that there was sufficient competent evidence in the record to support the Workers' Compensation Court's determination that Hintz' work-related injury was fully resolved prior to his fall on December 4, 2014. Therefore, we reverse the holding of the Court of Appeals.


         On Thursday, November 13, 2014, Hintz was employed by Farmers as a tire technician and was repairing a semitrailer tire, when the tire exploded. At the time of the explosion, Hintz was kneeling directly in front of the tire. As a result of the explosion, Hintz was thrown approximately 10 feet and landed on his back. He could not feel his legs, had pain in his groin and hips, and heard "a whistling" in his ears. Within a few minutes, Hintz was able to get up and walk, but he had limited use of his right leg.

         Due to the pain Hintz was experiencing, he left work immediately after the explosion and did not return until the [297 Neb. 906] following Monday. However, Hintz did not seek medical care for his injuries in the days immediately following the incident. Hintz indicated that upon returning to work, he was able to work only "a little" at that time.

         To the contrary, Farmers offered evidence which suggested that in the days and weeks after Hintz returned to work, he was able to complete all of his job requirements. Such evidence included Hintz' payroll records and the testimony of his coworkers that Hintz resumed his normal job duties without any notable problems.

         On December 4, 2014, while walking up a set of stairs at home, Hintz tripped and fell, hitting his hip. Hintz sought medical treatment the next day with Dr. James Gallentine, an orthopedic doctor. Hintz told Gallentine that he was suffering from pain in his right leg which began the night before, when he tripped on his stairs and hit his right hip and knee. Hintz also told Gallentine about the November 13 incident at work; however, he said that since that incident, he had returned to work and "was jumping on and off trucks without any difficulty." Based upon his evaluation, Gallentine prescribed pain medication for Hintz and told him not to return to work for a few days.

         The pain in Hintz' right hip and leg did not resolve, and as a result, Gallentine ordered an MRI, which revealed that Hintz was suffering from a "superior labral tear and also some irregularity in the posterior labrum with a possible paralabral cyst forming." Gallentine referred Hintz to Dr. Justin Harris, an orthopedic doctor, "for a possible hip arthroscopy" and directed Hintz to remain off work until further notice. Hintz then completed an application for short-term disability benefits from Farmers. On the application, Hintz indicated that he was temporarily, totally disabled and that his condition was not related to his occupation.

         On December 30, 2014, Harris examined Hintz. In his examination notes, Harris indicated that Hintz had been experiencing pain in his right hip since December 4, when he [297 Neb. 907] "tripped going up stairs." ...

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