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Carr v. Ganz

Court of Appeals of Nebraska

June 12, 2018

Richard Carr, appellant,
Gordon Ganz. doing business as g & h farms, appellee.

         1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from non-final orders.

         5. Jurisdiction: Appeal and Error. When an appellate court is without jurisdiction to act, the appeal must be dismissed.

         6. Final Orders: Appeal and Error. Generally, 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 expressly reserving some issue or issues for later determination, the court's determination of less than all the issues is an interlocutory order and is not a final order for the purpose of an appeal.

         7. Statutes: Courts. When interpreting a statute, a court will first consider the plain language.

         [26 Neb.App. 15] 8. Statutes: Legislature: Intent. In discerning the meaning of a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense, as it is the court's duty to discover, if possible, the Legislature's intent from the language of the statute itself.

         9. Workers' Compensation. Under the Nebraska Workers' Compensation Act, it has long been the policy to construe the statute liberally so that its beneficent purposes may not be thwarted by technical refinements of interpretation.

         10. ___ . The obvious purpose of Neb. Rev. Stat. § 48-120 (Cum. Supp. 2016) is to authorize the compensation court to order an employer to pay the costs of the medicines and medical treatment reasonably necessary to relieve the worker from the effects of the injury.

         11. ___ . An order modifying an award to exclude a specific surgery does not foreclose an employee from establishing at a later date that the surgery is reasonably necessary to treat his or her compensable injury and is therefore encompassed under the terms of the award.

         12. ___ . The general rule under Neb. Rev. Stat. § 48-120 (Cum. Supp. 2016) is that, should a court determine a medical treatment for a condition unrelated to a work-related injury is medically reasonable and necessary to treat the underlying work-related injury, the medical treatment is required by the nature of the injury and is compensable.

          Appeal from the Workers' Compensation Court: J. Michael Fitzgerald, Judge. Reversed and remanded for further proceedings.

          Ryan C. Holsten and Brynne Holsten Puhl, of Atwood. Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O., for appellant.

          John W. Iliff and Adam J. Wachal, of Gross & Welch, P.C., L.L.O., for appellee.

          Moore, Chief Judge, and Inbody and Bishop, Judges.

          INBODY, JUDGE


         Richard Carr appeals the Nebraska Workers' Compensation Court's denial of his motion to compel Gordon Ganz, doing [26 Neb.App. 16] business as G & H Farms, to pay for Carr's coronary artery bypass procedure. Specifically, Carr appeals the compensation court's orders on December 23 and 30, 2016, and January 19, 2017. Because we conclude the December 30, 2016, order modified the December 23 order to reserve disposition of some of the issues, the December 23 order was not final and appealable until the January 19, 2017, order. Thus, we find Carr's February 7 notice of appeal was timely filed and we have jurisdiction to consider the appeal. For the reasons set forth below, we reverse the compensation court's order pertaining to the compensability of Carr's coronary artery bypass procedure and remand the cause for further proceedings.


         In January 2012, while employed by Ganz, Carr was "bucked off" a horse and injured in the course of his employment. Specifically, Carr received the following injuries due to the accident: symphysis pubis and sacral fractures, hernia, urinary incontinence, and erectile dysfunction. Following a petition filed with the Nebraska Workers' Compensation Court, the parties entered into a stipulation in April 2014, and the court entered an award pursuant to this stipulation wherein Carr was awarded temporary total disability benefits to be paid by Ganz until Carr reached maximum medical improvement for his ...

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