Dan Kaiser, appellant and cross-appellee.
Metropolitan Utilities District, APPELLEE AND CROSS-APPELLANT.
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.
___. 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.
____: ___. On appellate review, the factual findings made by
the trial judge of the Workers' Compensation Court have
the effect of a jury verdict and will not be disturbed unless
they are clearly wrong.
Judgments: Appeal and Error. In testing the
sufficiency of the evidence to support the findings of fact,
an appellate court considers the evidence in the light most
favorable to the successful party, every controverted fact
must be resolved in favor of the successful party, and the
appellate court gives the successful party the benefit of
every inference reasonably deducible from the evidence.
Workers' Compensation: Appeal and Error.
With respect to questions of law in workers' compensation
cases, an appellate court is obligated to make its own
Workers' Compensation: Proof. To recover
under the Nebraska Workers' Compensation Act, a claimant
must prove by a preponderance of the evidence that an
accident or occupational disease arising out [26 Neb.App. 39]
of and occurring in the course of employment caused an injury
which resulted in disability compensable under the act.
Workers' Compensation: Expert Witnesses.
Unless its nature and effect are plainly apparent, an injury
is a subjective condition requiring an expert opinion to
establish the causal relationship between the employment and
the injury or disability.
Workers' Compensation: Appeal and Error.
The determination of causation is, ordinarily, a matter for
the trier of fact, whose factual findings will not be set
aside unless clearly wrong.
Workers' Compensation: Notice. Knowledge
imputed to an employer can satisfy the notice requirement of
Neb. Rev. Stat. § 48-133 (Reissue 2010).
___: ___. When an employer's foreman, supervisor, or
superintendent has knowledge of the employee's injury,
that knowledge is imputed to the employer.
Presumptions: Proof: Words and Phrases. A
rebuttable presumption is generally defined as a presumption
that can be overturned upon the showing of sufficient proof.
Workers' Compensation: Presumptions:
Proof. In all cases not otherwise provided for by
statute or by these rules, a presumption imposes on the party
against whom it is directed the burden of proving that the
nonexistence of the presumed fact is more probable than its
existence. This rule applies to the rebuttable presumption
that an opinion regarding loss of earning capacity expressed
by a vocational rehabilitation counselor appointed or
selected pursuant to Neb. Rev. Stat. § 48-162.01(3)
(Reissue 2010) is correct.
Moot Question: Appeal and Error. An
appellate court need not reach any remaining assignment of
error which is rendered moot by its decision to reverse, and
remand for further proceedings.
from the Workers' Compensation Court: Daniel R. Fridrich,
Judge. Affirmed in part, and in part reversed and remanded
E. Harris and Britany S. Shotkoski, of Harris &
Associates, PC, L.L.O., for appellant.
D. Wulff, of Law Office of Thomas D. Wulff, PC, and Mark
Mendenhall, of Metropolitan Utilities District, for appellee.
Chief Judge, and Pirtle and Arterburn, Judges.
Neb.App. 40] ARTERBURN, JUDGE.
Kaiser appeals and Metropolitan Utilities District (MUD)
cross-appeals from an order entered by the Nebraska
Workers' Compensation Court finding Kaiser had suffered a
work-related injury, awarding a 70-percent loss of earning
capacity, and finding him entitled to 300 weeks of permanent
partial disability benefits and 43.1429 weeks of temporary
total disability benefits. On appeal, Kaiser argues the
compensation court erred in failing to find him to have
suffered a 100-percent loss of earning capacity and in
failing to find him to be totally disabled. On cross-appeal,
MUD argues the compensation court erred in finding Kaiser
suffered an accident and injury arising out of the scope of
his employment and in finding ...