Evidence: Records: Appeal and Error. A bill
of exceptions is the only vehicle for bringing evidence
before an appellate court; evidence which is not made a part
of the bill of exceptions may not be considered.
Judicial Notice: Records. Papers requested
to be judicially noticed must be marked, identified, and made
a part of the record.
Judicial Notice: Appeal and Error. The trial
court's ruling should state and describe what it is the
court is judicially noticing. Otherwise, a meaningful review
of its decision is impossible.
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.
__. 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.
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.
Neb.App. 878] 7. Workers'
Compensation: Appeal and Error. An appellate court
is obligated in workers' compensation cases to make its
own determinations as to questions of law.
Workers' Compensation: Proof. To obtain
a modification of an award, an applicant must prove, by a
preponderance of evidence, that the increase or decrease in
incapacity was due solely to the injury resulting from the
__ . To obtain a modification of a prior award, the applicant
must prove there exists a material and substantial change for
the better or worse in the condition-a change in
circumstances that justifies a modification, distinct and
different from the condition for which the adjudication had
been previously made.
Workers' Compensation. Whether an
applicant's incapacity has increased under the terms of
Neb. Rev. Stat. § 48-141 (Reissue 2010) is a finding of
Workers' Compensation: Expert Witnesses.
Although a claimant's medical expert does not have to
couch his or her opinion in the magic words "reasonable
medical certainty" or "reasonable probability,
" the opinion must be sufficient to establish the
crucial causal link between the claimant's injuries and
the accident occurring in the course and scope of the
Expert Witnesses: Physicians and Surgeons: Appeal and
Error. An appellate court examines the sufficiency
of a medical expert's statements from the expert's
entire opinion and the record as a whole.
Workers' Compensation: Expert Witnesses:
Physicians and Surgeons. The Workers'
Compensation Court is the sole judge of the credibility and
weight to be given medical opinions, even when the health
care providers do not give live testimony.
__: __. Resolving conflicts within a health care
provider's opinion rests with the Workers'
Compensation Court, as the trier of fact.
Workers' Compensation: Evidence: Appeal and
Error. If the record contains evidence to
substantiate the factual conclusions reached by the trial
judge in workers' compensation cases, an appellate court
is precluded from substituting its view of the facts for that
of the compensation court.
Workers' Compensation: Proof. To
establish a change in incapacity under Neb. Rev. Stat. §
48-141 (Reissue 2010), an applicant must show a change in
impairment and a change in disability.
Workers' Compensation: Words and
Phrases. In a workers' compensation context,
impairment refers to a medical assessment, whereas disability
relates to employability.
Neb.App. 879] Appeal from the Workers' Compensation
Court: Daniel R. Fridrich, Judge. Reversed and remanded for
Hamer Conway, of Prentiss Grant, L.L.C., for appellant.
Terrence J. Salerno and Danny C. Leavitt for appellee.
Chief Judge, and Inbody and Bishop, Judges.
Industries, doing business as Aurstaff Temporary Agency (the
Appellant), appeals from the order of the Nebraska
Workers' Compensation Court which entered a further award
of benefits to Willie Moss, also known as Lamont Kirkland
(Kirkland). For the ...