Aken v. Nebraska Methodist Hosp.

• Decision Date: 11 February 1994
• Docket Number: No. S-92-079,S-92-079
• Citation: Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (Neb. 1994)
• Parties: Renee AKEN, Appellant, v. NEBRASKA METHODIST HOSPITAL, Appellee.
• Court: Nebraska Supreme Court

Page 762

511 N.W.2d 762

245 Neb. 161

Renee AKEN, Appellant, v. NEBRASKA METHODIST HOSPITAL, Appellee.

No. S-92-079.

Supreme Court of Nebraska.

Feb. 11, 1994.

Syllabus by the Court

1. Workers' Compensation. Findings of fact made by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case.

2. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party.

3. Workers' Compensation: Appeal and Error. Factual determinations by the Nebraska Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous.

4. Workers' Compensation: Appeal and Error. Neb.Rev.Stat. § 48-185 (Cum.Supp.1992) precludes an appellate court's substitution of its view of the facts for that of the Nebraska Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court.

5. Workers' Compensation. As the trier of fact, the Nebraska Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony.

6. Appeal and Error: Case Overruled. On the issue of the scope of appellate review, State Farm Mut. Auto. Ins. Co. v. Budd, 185 Neb. 343, 175 N.W.2d 621 (1970), and Dugdale of Nebraska v. First State Bank, 227 Neb. 729, 420 N.W.2d 273 (1988), are overruled.

7. Workers' Compensation: Expert Witnesses. Triers of fact, including the Nebraska Workers' Compensation Court, are not required to take the opinions of expert witnesses as binding.

8. Workers' Compensation: Evidence: Videotapes: Appeal and Error. The admission of videotape evidence is within the discretion of the Nebraska Workers' Compensation Court, whose determination with regard to the admission of such evidence will not be reversed on appeal absent a showing of abuse of that discretion.

9. Trial: Evidence: Videotapes: Appeal and Error. The weight to be given videotaped evidence, admitted in evidence, is to be determined by the trier of fact, not the appellate court.

Virginia L. Cullan and Daniel B. Cullan, Cullan & Cullan, Omaha, for appellant.

Kirk S. Blecha, Carol C. Knoepfler, and R.J. (Randy) Stevenson, Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

GRANT, Justice, Retired.

Plaintiff Renee Aken filed her petition in the Workers' Compensation Court on June 13, 1989, seeking compensation from her employer, defendant Nebraska Methodist Hospital (Methodist), for injuries she received on January 5, 1987, while engaged in her employment. On November 30, 1989, the parties stipulated that Methodist had paid temporary total disability benefits and all medical expenses associated with Aken's injury up to that time and that Methodist would continue to pay such expenses and to pay temporary total disability of $180 per week until the compensation court modified or terminated Methodist's obligation. A single judge of the compensation court approved the parties' stipulation and entered an order awarding Aken the benefits, subject to either party's seeking modification of the order.

On May 8, 1990, Aken filed an application requesting pain management treatment for her injuries. On November 29, 1990, Methodist filed its motion, alleging that Aken was not then totally disabled and was self-employed as a child-care provider in her home. Methodist sought an order terminating its obligation to pay temporary total disability payments to Aken. On December 21, 1990, a hearing was held before a single judge of the compensation court on the parties' respective motions. On March 11, 1991, an order was entered denying Aken's motion, sustaining Methodist's motion to terminate payments, and dismissing Aken's petition of June 13, 1989.

Aken timely sought rehearing of this order before a panel of the Workers' Compensation Court. On January 2, 1992, after rehearing before the panel on June 3, 1991, the single-judge order of dismissal was affirmed by the panel, with one judge concurring with the findings of the majority as to the termination of temporary total disability and dissenting, in part, on the question of Aken's "permanent partial disability, if any." Aken timely appealed to the Nebraska Court of Appeals. On March 2, 1993, the Court of Appeals reversed the compensation court's decision and remanded the cause for further proceedings. This court then granted Methodist's petition for further review. We reverse the judgment of the Court of Appeals and direct that the cause be remanded to the Court of Appeals, where an order shall be entered affirming the order of dismissal entered by the Workers' Compensation Court.

The record shows that Aken was a registered nurse who injured her foot on January 5, 1987, while working for Methodist. As set out above, Methodist paid temporary total disability benefits and medical expenses from January 5, 1987, to March 2, 1991, when the compensation court granted Methodist's motion to terminate all payments and dismissed Aken's petition.

The record of the hearing before the panel shows that Aken had been a floor nurse for Methodist for 9 years prior to her injury. She developed bunions on both feet. On October 29, 1986, a bunionectomy was performed on her left foot. Aken had no postoperative complications from this operation. On November 14, 1986, a bunionectomy was performed on her right foot.

On January 5, 1987, Aken returned to work at Methodist as a registered nurse and on that day, while engaged in the duties of her employment, sustained a stress fracture in her right foot at the site of the operation of November 14, 1986. Doctors later determined that a nerve had been impinged in Aken's right foot and that a tendon had been ruptured. Aken underwent four further surgical operations in 1987, followed by many sessions of physical therapy, a "TENS unit" prescription, two caudal blocks, cortisone injections in her knees, and psychiatric treatments. All of these procedures were attempts to control the pain Aken described to her doctors and to alleviate Aken's depression. The conclusion of Dr. Jack Stark, psychiatric counselor; Dr. David Cornell, podiatrist; and Dr. Timothy Fitzgibbons, orthopedic surgeon, was that Aken was suffering symptoms of a reflex sympathetic dystrophy. Dr. Richard G. Belatti, Jr., an anesthesiologist and director of the Pain Control Center, St. Joseph Hospital, Creighton University Medical Center in Omaha, examined Aken on May 2, 1991, and reported to Dr. Fitzgibbons on May 7, 1991, as follows:

Ms. Aken certainly does give a history which is at least partially suggestive of a reflex sympathetic dystrophy.... Interestingly, in the many cases of reflex sympathetic dystrophy I have encountered, after several years of sympathetic dystrophy, the affected extremity is generally grossly atrophic. I would have expected to see severe muscle wasting, bone deformity, nailbed changes, and skin changes. Fortunately, Ms. Aken shows the presence of none of these signs. In essence, the foot appeared to be identical in conformation and muscle mass to the unaffected foot.

To summarize, Ms. Aken has a history which is partially consistent with the diagnosis of reflex sympathetic dystrophy. The physical signs which I would expect to be present at this point do not appear to be so, however. This does speak against a diagnosis of sympathetic dystrophy. Also speaking against the diagnosis of a sympathetic dystrophy is the patient's reluctance to receive any type of medical treatment at this point. My experience with patients with sympathetic dystrophy has been their overwhelming wish to "try anything" (even amputation) in order to try to attain pain relief. Ms. Aken's reluctance does not fit this usual pattern. At this time, I would like to defer my final diagnosis until Ms. Aken can return for photographs of her discolored extremity, further cutaneous temperature mapping, and/or sympathetic nerve blockage.

Dr. Stark testified in his deposition on May 30, 1991, that he thought Aken could benefit from treatment in a pain management center. In that regard, he testified:

This is something we discussed. I think it's worth trying. I'll be very candid with you. I don't know what to do with this lady. I've had other cases--other sympathetic reflex dystrophy cases. And I talked with Dr. Belatti about it because we're writing a book together. And we both kind of look at each other and say, "Boy, these are the toughest cases to work with." Now, again, not saying that she absolutely does have that.

But in referring her to him--I know Dr. Fitzgibbons--he's one of the best orthopedic surgeons around. And I discussed it informally with him a couple of times. And he's saying, "Geez, I don't know what to do" and looking at me and I'm saying, "I don't know what to do for sure." But I think it would be good to really get this checked out with Dr. Belatti before we try a Pain Clinic....

Other evidence before the panel showed that Aken had cared for preschool children in her home beginning in April 1988. She had some help from her husband and her two school-age children. In 1988, she earned $815 in 9 months. She earned $2,267 in 1989, $6,118 in 1990, and $3,846 up to May 31, 1991.

In additional testimony, James Rogers, a vocational rehabilitation counselor who worked with Aken, concluded that in his opinion Aken could not resume work as a floor nurse, but that "she has the physical capacity to do other areas of employment within her experience." This witness also testified that in August 1989, he asked Aken about doing some work for him in the review of medical records. Aken did not think she could do such work at the...