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Kaiser v. Metropolitan Utilities District

Court of Appeals of Nebraska

June 26, 2018

Dan Kaiser, appellant and cross-appellee.
v.
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.

         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. ____: ___. 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.

         4. 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.

         5. Workers' Compensation: Appeal and Error. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

         6. 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.

         7. 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.

         8. 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.

         9. Workers' Compensation: Notice. Knowledge imputed to an employer can satisfy the notice requirement of Neb. Rev. Stat. § 48-133 (Reissue 2010).

         10. ___: ___. When an employer's foreman, supervisor, or superintendent has knowledge of the employee's injury, that knowledge is imputed to the employer.

         11. Presumptions: Proof: Words and Phrases. A rebuttable presumption is generally defined as a presumption that can be overturned upon the showing of sufficient proof.

         12. 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.

         13. 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.

          Appeal from the Workers' Compensation Court: Daniel R. Fridrich, Judge. Affirmed in part, and in part reversed and remanded with direction.

          James E. Harris and Britany S. Shotkoski, of Harris & Associates, PC, L.L.O., for appellant.

          Thomas D. Wulff, of Law Office of Thomas D. Wulff, PC, and Mark Mendenhall, of Metropolitan Utilities District, for appellee.

          Moore, Chief Judge, and Pirtle and Arterburn, Judges.

          [26 Neb.App. 40] ARTERBURN, JUDGE.

         I. INTRODUCTION

         Dan 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 ...


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