Canas v. Maryland Cas. Co.

• Decision Date: 24 August 1990
• Docket Number: No. 89-1374,89-1374
• Citation: 459 N.W.2d 533,236 Neb. 164
• Parties: , 89 A.L.R.4th 1045 Jose L. CANAS, Appellee, v. MARYLAND CASUALTY COMPANY and F & S Sausage Company, Appellants.
• Court: Nebraska Supreme Court

Page 533

459 N.W.2d 533

236 Neb. 164, 89 A.L.R.4th 1045

Jose L. CANAS, Appellee, v. MARYLAND CASUALTY COMPANY and F & S Sausage Company, Appellants.

No. 89-1374.

Supreme Court of Nebraska.

Aug. 24, 1990.

Syllabus by the Court

1. Workers' Compensation: Evidence: Appeal and Error. In determining whether the evidence is sufficient to support an award by the compensation court, the evidence must be considered in the light most favorable to the successful party. The findings of fact made by the compensation court after rehearing will not be set aside unless clearly wrong.

2. Workers' Compensation. As the trier of fact, the compensation court is the sole judge of the credibility of witnesses and the weight to be given their testimony.

3. Workers' Compensation: Wages. The calculation of the wages received at the time of injury is prescribed in Neb.Rev.Stat. § 48-126 (Reissue 1988). In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour, the employee's weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week's work, using as the basis of calculation his or her earnings during as much of the preceding 6 months as he or she worked.

4. Statutes. Effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided.

5. Appeal and Error. Although the Supreme Court will not consider assignments of error which are not discussed in the briefs, it always reserves the right to note plain error which was uncomplained of at trial or on appeal but is plainly evident from the record, and which is of such nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process.

6. Workers' Compensation: Statutes: Time. In making the calculations under Neb.Rev.Stat. § 48-121 (Reissue 1988), an amendatory statute may not be applied retroactively, and the statute as it existed at the time of injury governs.

7. Workers' Compensation. The employer shall be liable for all reasonable medical, surgical, and hospital services, appliances, supplies, prosthetic devices, and medicines, as and when needed, which are required by the nature of the injury and which will relieve pain or promote and hasten the employee's restoration to health and employment.

8. Workers' Compensation: Trial. Whether an injury is caused by a work-related accident is a question of fact.

9. Workers' Compensation. In a workers' compensation case, compensation is not restricted to physical pain.

10. Trial: Expert Witnesses. Expert opinion testimony is not required just because the case may concern a matter of science or special knowledge. The test is whether the particular issue can be determined from the evidence presented and the common knowledge and usual experience of the fact finders.

Appeal from the Nebraska Workers' Compensation Court. Affirmed in part, and in part reversed and remanded with directions.

Stephen L. Ahl, of Wolfe, Anderson, Hurd, Luers & Ahl, Lincoln, for appellants.

Claude E. Berreckman, of Berreckman & Berreckman, P.C., Cozad, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

An employer and its insurer appeal a Workers' Compensation Court finding that an injured worker's temporary total disability benefits were incorrectly computed and that the cost of a penile implant is a compensable medical procedure. We affirm in part, and in part reverse and remand.

The determinations were made by a majority of a three-judge Workers' Compensation Court panel upon rehearing.

"In determining whether the evidence is sufficient to support an award by the compensation court, the evidence must be considered in the light most favorable to the successful party. The findings of fact made by the compensation court after rehearing will not be set aside unless clearly wrong." Snyder v. IBP, Inc., 235 Neb. 319, 320, 455 N.W.2d 157, 159 (1990). As the trier of fact, the compensation court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Brazee v. City of Lincoln, 234 Neb. 680, 452 N.W.2d 529 (1990).

On May 16, 1978, Jose L. Canas was employed as a boner at F & S Sausage Company in Cozad, Nebraska. A "boner" removes the bones from a carcass. On Following the accident, Canas experienced acute low back and left leg pain and numbness in his left leg, and his left leg would give way. In July 1978, Canas underwent a lumbosacral fusion in Hastings. After the surgery, he continued to experience pain and weakness and his left leg continued to give way. Shortly after the surgery, Canas began having problems with his sexual functioning. It gradually worsened. On March 24, 1981, Canas had a second lumbosacral fusion performed in Lincoln. Medical records document Canas' continuing problems with his back and legs in the years following the second surgery. A Cozad physician reported on April 11, 1989, that Canas had spinal stenosis and used two canes for walking. At the time of the rehearing, he was completely impotent. Since the accident, Canas has not been able to work. The compensation court found that Canas has been totally disabled from and including May 17, 1978, to and including the date of the rehearing and that Canas would remain totally disabled indefinitely. That finding has not been challenged. At the time of rehearing, Canas was 59 years of age and married.

that date, Canas slipped and fell to a concrete floor on his back while carrying a quarter side of beef. There is no dispute that the injury arose out of and in the course of Canas' employment with F & S Sausage Company. The defendant Maryland Casualty Company is the employer's workers' compensation insurance carrier.

Prior to the commencement of this action, Canas was receiving temporary total disability benefits of $148.19 per week from the date of the accident. Penile implant surgery was scheduled for Canas on August 22, 1986, but he canceled the surgery after the appellants denied coverage. The compensation court panel majority determined that Canas was entitled to receive $168.08 per week in temporary total disability benefits from and including May 17, 1978, to and including the date of the rehearing and for so long as Canas remains totally disabled. In determining the average weekly wage, the majority excluded from the 26 weeks preceding the accident those weeks during which Canas worked fewer than 40 hours due to holidays, vacation, and sick leave. The majority further determined that the penile implant was a compensable procedure.

AVERAGE WEEKLY WAGE

Under the schedule of compensation as set forth in Neb.Rev.Stat. § 48-121 (Reissue 1988), the compensation during a period of total disability is 66 2/3 percent of the wages the employee received at the time of injury up to a maximum limit and not below a minimum amount. The calculation of the wages received at the time of injury is prescribed in Neb.Rev.Stat. § 48-126 (Reissue 1988). In relevant part, § 48-126 states:

Wherever in the Nebraska Workers' Compensation Act the term wages is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.... In continuous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour [the employee's] weekly wages shall be taken to be his or her average weekly income for the period of time ordinarily constituting his or her week's work, and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked....

Canas was receiving a wage of $5.25 per hour at the time of his injury. The president of F & S Sausage testified that he did not guarantee Canas a certain number of hours of work per week but that Canas was paid on the number of hours Canas actually worked in a week. He further testified that Canas' ordinary workweek was 45 to 50 hours. In the 26 weeks preceding the accident, each of Canas' workweeks was not less than 44.03 hours or more than 50.87 hours, with seven exceptions. In those 7 weeks, Canas worked 20.77, 37.43, 34.75, 14.35, 36.63, 7.78, and 36.75 hours, respectively. It is uncontroverted that Canas' shortened workweeks were due to vacation time incurred in moving The fallacy of the appellants' argument can be demonstrated by deleting the following language from § 48-126: "for the period of time ordinarily constituting his or her week's work." Without that clause, the sentence at issue would read: "[W]eekly wages shall be taken to be his or her average weekly income ... and using as the basis of calculation his or her earnings during as much of the preceding six months as he or she worked for the same employer." If the statute so read, one would determine the average weekly wage just as the appellants suggest. Thus, the appellants' calculation would be the same even if the foregoing language were deleted. However, effect must be given, if possible, to all the several parts of a statute; no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. NC + Hybrids v. Growers Seed Assn., 219 Neb. 296, 363 N.W.2d 362 (1985). We conclude that by inclusion of the clause "for the period of time ordinarily constituting his or her week's work," the Legislature sought to exclude those abnormally low workweeks from the 26-week period used for the calculation. The appellants' reading of the statute would lead to harsh and oppressive results where, for example, an employee was ill during much or all of the 6 months preceding his or her work-related accident. Our conclusion in this case is further dictated by the result in the recent case of ...