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Hale v. Vickers11/13/2001
1. Appeal and Error. In order to be considered by an appellate court, an assignment of error must be both specifically assigned and argued as error in the appellant's brief.
2. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing.
3. Workers' Compensation. As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony.
4. Evidence: Appeal and Error. 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, every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.
5. Workers' Compensation: Appeal and Error. Findings of fact by the Workers' Compensation Court trial judge are not to be disturbed on appeal unless clearly wrong.
6. ____: ____. An appellate court may not substitute its view of the facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court.
7. Workers' Compensation: Attorney Fees: Penalties and Forfeitures: Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2000) authorizes a penalty of 50 percent of compensation payable where there is no reasonable controversy regarding an employee's claim for workers' compensation and payment is delinquent for 30 days. Whether a reasonable controversy exists under § 48-125 is a question of fact.
8. Workers' Compensation: Attorney Fees: Penalties and Forfeitures: Words and Phrases: Appeal and Error. A reasonable controversy under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2000) may exist (1) if there is a question of law previously unanswered by the appellate courts, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or in part.
9. Workers' Compensation: Attorney Fees: Penalties and Forfeitures. To avoid the penalty provided for in Neb. Rev. Stat. § 48-125 (Cum. Supp. 2000), an employer need not prevail in the employee's claim, but must have an actual basis in law or fact for disputing the claim and refusing compensation.
10. Workers' Compensation: Trial. Whether an injury is caused by a work-related accident is a question of fact.
11. Workers' Compensation. It has long been recognized that the lighting up or acceleration of pre-existing conditions by accident is compensable.
12. ____. Neb. Rev. Stat. § 48-134 (Reissue 1998) provides that if the employer so requests, an employee seeking benefits under the Nebraska Workers' Compensation Act shall submit to an examination by a physician or surgeon furnished by the employer.
13. Workers' Compensation: Evidence. Under the plain language of Neb. Rev. Stat. § 48-134 (Reissue 1998), one purpose of the statute is to allow an employer to gather medical evidence to analyze, and perhaps dispute, all or part of a claim. This would include gathering evidence as to whether a proposed course
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