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Moyers v. International Paper Co.

Court of Appeals of Nebraska

November 21, 2017

Morton Moyers, appellee,
v.
International Paper Company and One Republic Insurance Company, appellants.

         1. 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.

         2. 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.

         3. ___: ___: 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.

         4. 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.

         5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.

         6. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), an appellate court may review three types of final [25 Neb.App. 283] orders: (1) an order that affects a substantial right and that determines the action and prevents a judgment, (2) an order that affects a substantial right made during a special proceeding, and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered.

         7. Workers' Compensation: Appeal and Error. A party can appeal an order from the Workers' Compensation Court if it affects the party's substantial right.

         8. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Reissue 2016) include those legal rights that a party is entitled to enforce or defend.

         9. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken.

         10. _: _ . When multiple issues are presented to a trial court for simultaneous disposition in the same proceeding and the court decides some of the issues, while reserving other issues for later determination, the court's determination of fewer than all the issues is an interlocutory order and is not a final order for the purpose of an appeal.

         11. Workers' Compensation: Judgments: Final Orders. A Workers' Compensation Court's finding of a compensable injury or its rejection of an affirmative defense without a determination of benefits is not an order that affects an employer's substantial right in a special proceeding.

         12. 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.

         13. Workers' Compensation: Rules of Evidence: Appeal and Error. The Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence; it has discretion to admit evidence, and its decision to admit or exclude evidence will not be reversed on appeal absent an abuse of discretion.

         14. Workers' Compensation: Words and Phrases. Under the Nebraska Workers' Compensation Act, an occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.

         15. Workers' Compensation: Time. Under the Nebraska Workers' Compensation Act, an injury has occurred as the result of an occupational disease when violence has been done to the physical structure of [25 Neb.App. 284] the body and a disability has resulted. In other words, an occupational disease has caused an "injury" within the meaning of the act, at the point it has resulted in disability.

         16. Workers' Compensation. A workers' compensation claimant may recover when an injury, arising out of and in the course of employment, combines with a preexisting condition to produce disability, notwithstanding that in the absence of the preexisting condition no disability would have resulted.

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

         18. 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.

         19. Workers' Compensation. Whether a plaintiff in a Nebraska workers' compensation case is totally disabled is a question of fact.

         20. ___: Total disability exists when an injured employee is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the employee's mentality and attainments could perform.

         21. Workers' Compensation: Expert Witnesses. Although medical restrictions or impairment ratings are relevant to a claimant's disability, the trial judge is not limited to expert testimony to determine the degree of disability but instead may rely on the testimony of the claimant.

         Appeal from the Workers' Compensation Court: Julie A. Martin, Judge. Affirmed.

          Timothy E. Clarke and Thomas B. Shires, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellants.

          Terry M. Anderson and David M. O'Neill, of Hauptman, O'Brien, Wolf & Lathrop, PC, for appellee.

          Inbody, Pirtle, and Riedmann, Judges.

          PIRTLE, JUDGE.

         I. INTRODUCTION

         International Paper Company and One Republic Insurance Company (collectively IPC) appeal the decision of the Nebraska [25 Neb.App. 285] Workers' Compensation Court in which Morton Moyers was found to be permanently and totally disabled as a result of an occupational disease. The court found Moyers was entitled to weekly permanent disability benefits from and after the date he stopped working, September 20, 2014, except during those periods in which he was entitled to receive temporary total disability benefits. For the reasons that follow, we affirm.

         II. PROCEDURAL BACKGROUND

         On February 13, 2015, Moyers filed a petition alleging that he had sustained a personal injury to his respiratory system and lungs arising out of and in the scope and course of his employment with International Paper Company. He alleged the "incident and injury" occurred over the course of his 42 years of employment as he was "continually exposed to paper dust in his work environment which has caused chronic lung and respiratory condition." He alleged that he provided notice of the accident and injury on or about August 27, 2014, and that IPC had failed or refused to pay workers' compensation benefits to him.

         IPC generally denied Moyers' allegations and affirmatively alleged that his condition was caused by an inherent condition and that any disability was the result of an independent intervening cause. IPC alleged that Moyers failed to timely file his cause of action and that he failed to give timely notice of his injury as soon as practicable.

         On April 14, 2016, this matter was heard before the Nebraska Workers' Compensation Court. An award was issued on July 22, in which the court found Moyers sustained his burden to prove that he sustained an occupational disease arising out of his employment. The court found that Moyers became temporarily totally disabled on September 20, 2014, the date he stopped working at International Paper Company, and that he reached maximum medical improvement on June 29, 2015.

         The court found that Moyers was entitled to vocational rehabilitation services and stated that "[a]fter vocational rehabilitation services have been provided to [Moyers] as a result [25 Neb.App. 286] of the injuries incurred on September 20, 2014, a further hearing may be had on the extent of [his] permanent partial disability measured as a loss of earning power." The court found Moyers was entitled to certain medical expenses, but denied Moyers' requests for future medical expenses, waiting-time penalties, attorney fees, and interest.

         Moyers' motion for a determination of loss of earning capacity was filed on October 11, 2016. The vocational consultant, Ted Stricklett, provided his opinion that Moyers was unable to participate in a vocational rehabilitation plan due to his ongoing breathing issues and that he was not a viable candidate in the open labor market. IPC filed a motion to quash Moyers:motion and a motion to compel vocational rehabilitation. The motions were heard on November 9, and an order was filed on December 2. The court found Moyers sustained a 100-percent loss of earning capacity and was "so handicapped that he [would] not be employed regularly in any well-known branch of the labor market." The court found Moyers suffered permanent total disability as a result of his occupational disease and found ...


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