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Romero v. IBP2/6/2001
1. 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 the single judge who conducted the original hearing.
2. ____: ____. The findings of fact made by a workers' compensation judge on original hearing have the effect of a verdict and are not to be disturbed on appeal unless clearly wrong.
3. Evidence: Appeal and Error. In testing the sufficiency of the evidence to support findings of fact, the evidence must be considered in the light most favorable to the successful party.
4. Workers' Compensation: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.
5. ____: ____. Findings of fact made by a Workers' Compensation Court trial judge are not to be disturbed upon appeal to a Workers' Compensation Court review panel unless they are clearly wrong, and if the record contains evidence to substantiate the factual conclusions reached by the trial judge, the review panel shall not substitute its view of the facts for that of the trial judge.
6. ____: ____. A Workers' Compensation Court review panel may review a single-judge decision for errors of law.
7. Workers' Compensation: Presumptions. In determining whether the presumption contained in Neb. Rev. Stat. § 48-162.01(3) (Reissue 1998) has been rebutted, a single judge of the Workers' Compensation Court is required to make factual findings.
8. Workers' Compensation. Loss of earning power is a question of fact measured by a myriad of factors.
9. Workers' Compensation: Expert Witnesses. The Workers' Compensation Court does not need to depend on expert testimony to determine the degree of disability but instead may rely on the testimony of the claimant.
10. Workers' Compensation: Presumptions: Expert Witnesses. The rebuttable presumption in Neb. Rev. Stat. § 42-162.01(3) (Reissue 1998) can be rebutted not only by the testimony of another expert, but also by the testimony of the claimant.
Appeal from the Nebraska Workers' Compensation Court.
Reversed.
INTRODUCTION
Ricardo Romero, employed by IBP, inc., appeals from an order of the Workers' Compensation Court review panel which reversed an award by the single-judge court and remanded the case to the single-judge court for further factual findings. For the reasons set forth below, we reverse the order by the review panel.
BACKGROUND
Romero, 30 years of age at the time of trial, began working for IBP on September 15, 1995, employed as a "lumper," a job that entailed carrying boxes, weighing from 40 to 100 pounds, and placing them on wooden forms. On or about October 7, 1996, Romero was injured when a wagon loaded with boxes ran over his foot, and he fell over. On the day of his accident, Romero was reassigned from his lumper position to that of "box gluer," gluing together cardboard boxes containing meat. Approximately 3 months before the April 7, 1999, trial, Romero was assigned the job of "beef stamper," a task that involved stamping beef carcasses with government seals.
At the time of his injury, Romero first experienced pain only in his foot; however, within 2 weeks, he began suffering back pain. Romero underwent two back surgeries: on April 14 and October 20, 1997.
The primary issue at trial was the extent of Romero's injuries and any resulting disability. Romero testified, through an interpreter, that he suffers pain "all the time" and that he is
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