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Del Cid Escobar v. JBS USA

Court of Appeals of Nebraska

February 6, 2018

Gerson Saul Del Cid Escobar, appellee and cross-appellant,
v.
JBS USA, appellant and cross-appellee.

         1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), an appellate court may only modify, reverse, or set aside a Workers' Compensation Court decision 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. ___: ___. Factual determinations by a workers' compensation trial judge have the effect of a jury verdict and will not be disturbed unless they are clearly wrong.

         4. ___: ___. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

         5. Workers' Compensation: Evidence: Proof. When an employee in a workers' compensation case presents evidence of medical expenses resulting from injury, he or she has made out a prima facie case of fairness and reasonableness, causing the burden to shift to the employer to adduce evidence that the expenses are not fair and reasonable.

         6. Workers' Compensation: Expert Witnesses: Records. Outside expert testimony is not required to establish a causal link between the work-related injury and a worker's hospitalization where the records establish a relationship to the work-related injury.

          [25 Neb.App. 528] 7. Workers' Compensation. Whether medical treatment is reasonable or necessary to treat a workers' compensation claimant's compensable injury is a question of fact.

         8. Workers' Compensation: Proof. The burden rests on the employee to make out a prima facie case that the medical treatment the employee received is a result of a work-related injury.

         9. ___: ___. Once a prima facie case is established, the burden shifts to the employer to rebut the employee's evidence.

         10. Workers' Compensation: Words and Phrases. Temporary disability is the period during which the employee is submitting to treatment, is convalescing, is suffering from the injury, and is unable to work because of the accident.

         11. Workers' Compensation. 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.

         12. ___. Whether a plaintiff in a Nebraska workers' compensation case is totally disabled is a question of fact.

         13. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact in a workers' compensation case, every controverted fact must be resolved in favor of the successful party and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

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

         15. 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.

         16. ___: ___. Although an expert witness may be necessary to establish the cause of a claimed injury, the Workers' Compensation Court is not limited to expert testimony to determine the degree of disability but instead may rely on the testimony of the claimant.

         17. ___: ___. 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.

         18. Workers' Compensation. Under Neb. Rev. Stat. § 48-121 (Reissue 2010), a workers' compensation claimant may receive permanent or [25 Neb.App. 529] temporary workers' compensation benefits for either partial or total disability.

         19. ___. Temporary disability benefits should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

         20. ___ . When an injured employee has reached maximum medical improvement, any remaining disability is, as a matter of law, permanent.

         21. Rules of the Supreme Court: Attorney Fees: Appeal and Error. Neb. Ct. R. App. P. § 2-109(F) sets forth the procedure for a successful party to request attorney fees.

         Appeal from the Workers' Compensation Court: Julie A. Martin, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Dallas D. Jones and Thomas B. Shires, of Baylor, Evnen, Curtiss, Grimit & ...


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