 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Green v. Drivers Management2/15/2002
he is permanently partially disabled as a result of a work-related accident and has experienced a 50-percent loss of earning capacity and (2) overruling the trial judge's award for future medical benefits issued upon his motion for order nunc pro tunc to augment the original award.
STANDARD OF REVIEW
An appellate court may modify, reverse, or set aside a decision from the compensation court 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 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. Hagelstein v. Swift-Eckrich, 261 Neb. 305, 622 N.W.2d 663 (2001).
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).
An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Fay v. Dowding, Dowding, 261 Neb. 216, 623 N.W.2d 287 (2001); Logsdon v. ISCO Co., 260 Neb. 624, 618 N.W.2d 667 (2000); Sheldon-Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000).
ANALYSIS
Permanent Partial Disability
Impairments to the body as a whole are compensated in terms of loss of earning power or capacity. Snyder v. IBP, inc., 235 Neb. 319, 455 N.W.2d 157 (1990). In the instant case, Green was assigned a 50-percent loss of earning capacity by the trial judge. The trial judge, however, did not make a specific finding of impairment, and instead commented only on the evidence of Green's disability.
The Court of Appeals relied upon Snyder v. IBP, Inc., 222 Neb. 534, 385 N.W.2d 424 (1986), to hold that there can be no award for disability or loss of earning capacity in the absence of proof of permanent physical impairment to the body as a whole. Green v. Drivers Mgmt., Inc., 10 Neb. App. 299, 634 N.W.2d 22 (2001). The Court of Appeals also held that it cannot rely solely on the claimant's testimony for evidence of permanent impairment to the body as a whole when the injury is subjective in nature. Id. The Court of Appeals went on to hold that the record did not demonstrate that Green suffered a permanent impairment to his body, nor did it establish the crucial causal link between the accident and the limitations. Id.
[5-7] While the claimant has the burden to prove by a preponderance of the evidence that his or her employment proximately caused the injury which resulted in a compensable disability, the issue of causation of injury or disability is one for determination of the trier of fact. Bernhardt v. County of Scotts Bluff, 240 Neb. 423, 482 N.W.2d 262 (1992). Along with causation, the issue of whether the claimant has sustained a permanent impairment, and the extent of impairment, are questions of fact. Hoffart v. Fleming Cos., 10 Neb. App. 524, 634 N.W.2d 37 (2001). See, also, Crouch v. Goodyear Tire & Rubber Co., 255 Neb. 128, 582 N.W.2d 356 (1998). In testing the sufficiency of the evidence to support the findings of fact, the evidence must be considered in the light most favorable to the successful party. Cords v. City of Lincoln, supra.
We agree with the Court of Appeals that before permanent partial disability benefits can be awarded, the claimant must prove that he or she has a permanent impairment. Additionally, if the nature and effect of a claimant's injury are not plainly apparent, then the claimant must
Page 1 2 3 4 5 6 7 8 Nebraska Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|