Berggren v. Grand Island Accessories, Inc., S-95-201
| Decision Date | 05 April 1996 |
| Docket Number | No. S-95-201,S-95-201 |
| Citation | 545 N.W.2d 727,249 Neb. 789 |
| Parties | Lance BERGGREN, Appellee, v. GRAND ISLAND ACCESSORIES, INC., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Nebraska Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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 judgment, order, or award; or (4) the findings of fact by the compensation court do not support the order or award.
2. Judgments: Appeal and Error. On questions of law, an appellate court is obligated to make its own determinations.
3. Workers' Compensation: Rules of Evidence: Appeal and Error. The Nebraska Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence; admission of evidence is within the discretion of the compensation court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.
4. Workers' Compensation: Expert Witnesses. It is for the Nebraska Workers' Compensation Court to determine which, if any, expert witnesses to believe.
5. 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.
6. Workers' Compensation: Expert Witnesses: Proof. Expert medical testimony couched in terms of probability is sufficient to sustain a workers' compensation claimant's burden of proof.
7. Workers' Compensation: Words and Phrases. For purposes of workers' compensation claims, the phrase "more likely than not" is the equivalent of the statement that a causal relationship is probable.
8. Workers' Compensation: Expert Witnesses: Words and Phrases. For workers' compensation claims, medical testimony based on "reasonable certainty" is the same as medical testimony based on "reasonable probability."
9. Workers' Compensation: Expert Witnesses: Case Overruled. To the extent that Husted v. Peter Kiewit & Sons Constr. Co., 210 Neb. 109, 313 N.W.2d 248 (1981), and Fuglsang v. Blue Cross, 235 Neb. 552, 456 N.W.2d 281 (1990), hold that a medical opinion based on a reasonable degree of medical probability is not sufficient to establish a causal relationship, they are overruled.
10. Workers' Compensation: Words and Phrases. Earning power, as used in Neb.Rev.Stat. § 48-121(2) (Reissue 1993), is measured by an evaluation of a worker's general eligibility to procure and hold employment, the worker's capacity to perform the required tasks, and the worker's ability to earn wages in employment for which he or she is engaged or fitted.
11. Workers' Compensation: Appeal and Error. Factual determinations by the Nebraska Workers' Compensation Court will not be set aside on appeal unless they are clearly erroneous.
Petition for further review from the Nebraska Court of Appeals, HANNON, IRWIN, and MILLER-LERMAN, Judges, on appeal thereto from the Nebraska Workers' Compensation Court.
Douglas J. Peterson, of Knudsen, Berkheimer, Richardson & Endacott, for appellant.
David P. Kyker for appellee.
The Nebraska Workers' Compensation Court ordered the defendant-appellant employer, Grand Island Accessories, Inc., to pay the plaintiff-appellee employee, Lance Berggren, benefits for solvent toxicity resulting in seizures. In seeking review by the Nebraska Court of Appeals, Grand Island Accessories asserted, in summary, that the compensation court erred in (1) excluding certain evidence, (2) finding that Berggren's condition was compensable, and (3) finding that Berggren sustained a loss of earning power. The Court of Appeals reversed the compensation court's award. Berggren v. Grand Island Accessories, 95 NCA No. 45, case No. A-95-201 (). Berggren then successfully sought further review by this court. We now reverse the judgment of the Court of Appeals.
A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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 judgment, order, or award; or (4) the findings of fact by the compensation court do not support the order or award. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); Cox v. Fagen Inc., 249 Neb. 677, 545 N.W.2d 80 (1996); Pettit v. State, 249 Neb. 666, 544 N.W.2d 855 (1996); Toombs v. Driver Mgmt., Inc., 248 Neb. 1016, 540 N.W.2d 592 (1995); Buckingham v. Creighton University, 248 Neb. 821, 539 N.W.2d 646 (1995); Neb.Rev.Stat. § 48-185 (Reissue 1993). However, as in other cases, an appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Shilling v. Moore, 249 Neb. 704, 545 N.W.2d 442 (1996); Pettit, supra; Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995); McGowan v. Lockwood Corp., 245 Neb. 138, 511 N.W.2d 118 (1994).
Berggren began working for Grand Island Accessories in October 1987, being initially hired as an assembler. As such, his duties included painting and assembling parts, working with paints and thinners, and packaging the parts for shipping.
After working as an assembler for a little over a year, he was transferred to the "sputter coater room," in which the environment was controlled in order to keep the temperature constant and to keep dust out. The main activity in this room was to put a topcoat on styrene parts and then apply a brass coating on them. Berggren's duties in this activity included stocking parts, changing the paint filters, keeping the paint vat full, dumping the runoff of the excess paint, and maintaining the paint guns and paint tunnel. In the course of performing these duties, Berggren came into contact with a variety of solvents.
When Berggren first began working in the coater room, he developed a rash on his arms, ankles, and feet. He testified that he would feel faint and dizzy when working around the paints, changing the filters, and working in the "sputter coater machine" itself. In addition, he would occasionally experience an "aura," a feeling that he now associates with the oncoming of a seizure. He described this sensation as feeling "spacey," developing a funny taste in his mouth, and hearing loud ringing in his ears.
In February or March 1992, Berggren left the coater room and began working in the maintenance department. As a maintenance worker, Berggren fixed various equipment and maintained the company grounds. On occasion, his maintenance duties required him to be in the coater room, although only a few days a month. Berggren continued to work in the maintenance department until his employment with Grand Island Accessories was terminated in January 1993.
Berggren had his first seizure on July 15, 1992, at which time he was working in the maintenance department. He had experienced an aura at approximately noon that day and later, while working on a tape machine, had a seizure. The last thing he remembers is working on the tape machine; being transported in an ambulance is the first thing he remembers after that. He was treated in a hospital emergency room and released, and he spent the rest of the day at home, returning to work the next day.
A second seizure occurred on September 25, 1992. In the time between the two seizures, Berggren occasionally experienced auras while working, but did not have a seizure. The second seizure took place when Berggren was cleaning the lunchroom. He was again transported by ambulance to a hospital where he was treated and released. Berggren did not return to work for several days.
This second seizure was the last one Berggren had while employed by Grand Island Accessories, but he had another in June or July 1993. At the time of the compensation court trial, he was working in the shipping and receiving department at a furnace company.
After Berggren's second seizure, he was seen by a physician, who was unable to determine the cause, notwithstanding that the physician had a number of diagnostic studies performed. Berggren then consulted a second physician, who too was unable to confirm that a toxin was the cause of the seizures.
After his third seizure, Berggren was treated by still another physician, who stated in a report that she believed with reasonable medical certainty that Berggren suffered repetitive solvent toxicity during his employment at Grand Island Accessories and that the toxicity, although not the cause of his seizure disorder, significantly contributed to its onset. This third physician testified by deposition:
Q. ... And the basis of your opinion as to the seizures, as I understand it, comes down to the two articles--or the articles that you have referenced regarding studies?
A. It comes down also to my training and experience in clinical toxicology....
... There is an extensive literature concerning the risk for solvent-exposed individuals to seizures as well as to dementia and peripheral nerve damage. They are certainly at neurologic risk even though they do not have liver disease or they do not have occular motor dysfunction, and because they are at risk, I think it is contraindicated for a person with a convulsive disorder to become intoxicated, to take drugs of abuse or to be exposed to solvents. I think they are all of high risk and will increase the manifestations or precipitate the onset, and I think that...
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