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Hagelstein v. Swift-Eckrich Div. of ConAgra2/23/2001
1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2000), 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. ___: ___. 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.
3. Workers' Compensation: Proof. To obtain a modification, an applicant must prove, by a preponderance of evidence, that the increase or decrease in incapacity was due solely to the injury resulting from the original accident.
4. Workers' Compensation. An employer's unilateral cessation of workers' compensation benefits is not to be the basis for the modification of an award of benefits.
5. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party, and the successful party will have the benefit of every inference reasonably deducible from the evidence.
6. ___: ___: ___. If the record contains evidence to substantiate the factual conclusions reached by the trial judge of the compensation court, an appellate court is precluded from substituting its view of the facts for that of the compensation court.
7. Evidence: Videotapes: Appeal and Error. The weight to be given videotaped evidence, admitted into evidence, is to be determined by the trier of fact, not the appellate court.
8. Workers' Compensation. Vocational rehabilitation benefits are properly awarded when an injured employee is unable to return to the work for which he or she has previous training or experience.
9. ___. A determination as to whether an injured worker has had a loss of earning power is a question of fact to be determined by the Workers' Compensation Court.
10. ___. A modification to a workers' compensation award cannot be applied retroactively beyond the date of application for modification.
Appeal from the Nebraska Workers' Compensation Court. Affirmed as modified.
NATURE OF CASE
Dale E. Hagelstein appeals from an order entered by a review panel of the Workers' Compensation Court. The review panel's order affirmed in part and reversed in part the trial judge's order, which modified a running award of total disability benefits to permanent partial disability benefits. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals.
SCOPE OF REVIEW
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2000), 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. Hollandsworth v. Nebraska Partners, 260 Neb. 756, 619 N.W.2d 579 (2000).
Upon appellate review, the findings of fact made by the trial
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