Cords v. City of Lincoln

• Decision Date: 29 March 1996
• Docket Number: No. S-95-838,S-95-838
• Citation: 545 N.W.2d 112,249 Neb. 748
• Parties: Herbert CORDS, Appellee, v. CITY OF LINCOLN, Appellant.
• Court: Nebraska Supreme Court

Page 112

545 N.W.2d 112

249 Neb. 748

Herbert CORDS, Appellee, v. CITY OF LINCOLN, Appellant.

No. S-95-838.

Supreme Court of Nebraska.

March 29, 1996.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1993), 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. Workers' Compensation: Appeal and Error. 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. 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. Whether an accident arose "out of" and "in the course of" employment must be determined from the facts of each case.

5. Workers' Compensation: Proof. The onus of proving that an injury arose both "out of" and "in the course of" the employment rests upon the applicant.

6. Workers' Compensation: Words and Phrases. "Arising out of" is a term which describes the accident and its origin, cause, and character, i.e., whether it resulted from risks arising within the scope or sphere of the employee's job.

7. Workers' Compensation: Words and Phrases. "In the course of" refers to the time, place, and circumstances surrounding the accident.

8. Workers' Compensation. The test to determine whether an act or conduct of an employee which is not a direct performance of his work "arises out of" his employment is whether the act is reasonably incident thereto, or is so substantial a deviation as to constitute a break in the employment which creates a formidable independent hazard.

9. Workers' Compensation. All acts reasonably necessary or incident to the performance of the work, including such matters of personal convenience and comfort, not in conflict with specific instructions, as an employee may normally be expected to indulge in under the conditions of his work, are regarded as being within the scope or sphere of the employment.

10. Workers' Compensation: Proof. The "in the course of" requirement demands that the injury be shown to have arisen within the time and space boundaries of employment and in the course of an activity whose purpose is related to employment.

11. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside the judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing.

12. Workers' Compensation: Appeal and Error. Neb.Rev.Stat. § 48-185 (Reissue 1993) precludes an appellate court's substitution of its view of the facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court.

13. Workers' Compensation. 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.

14. Workers' Compensation: Words and Phrases. "Earning power," as used in Neb.Rev.Stat. § 48-121(2) (Reissue 1993), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he is engaged or for which he is fitted.

15. Workers' Compensation: Expert Witnesses. While expert witness testimony may be necessary to establish the cause of a 16. Workers' Compensation. A determination as to whether there is a reasonable probability that vocational rehabilitation services would reduce the amount of earning power lost by an injured worker is a question of fact to be determined by the Workers' Compensation Court.

claimed injury, 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.

Appeal from the Nebraska Workers' Compensation Court. Affirmed.

William F. Austin, Lincoln City Attorney, and James D. Faimon, Lincoln, for appellant.

Rollin R. Bailey, of Bailey, Polsky, Cope & Knapp, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CONNOLLY, Justice.

Herbert Cords brought this action against the City of Lincoln (City) seeking workers' compensation benefits for an injury sustained to his lower back as a result of an accident which occurred on July 8, 1992. At trial, a single judge of the Nebraska Workers' Compensation Court held that Cords' claimed accident "[arose] out of and in the course of his employment" with the City, and that Cords experienced a 10-percent loss of earning power as a result of the injury. Therefore, the court ordered the City to pay Cords permanent partial disability at a rate of $51.39 per week for 300 weeks, along with medical expenses and vocational rehabilitation benefits. The appeals panel of the Workers' Compensation Court affirmed the trial court's order. The City appeals.

Under the authority granted to us by Neb.Rev.Stat. § 24-1106 (Cum.Supp.1994) to regulate the caseloads of the appellate courts of this state, we remove the appeal to this court. We conclude there was sufficient competent evidence to support the trial court's findings and the award granted. As a result, we affirm the appeals panel's decision affirming the trial court's order.

FACTUAL BACKGROUND

Cords, age 60, began his employment with the City's parks and recreation department in 1961 and had held the position of assistant superintendent of parks since 1966. Cords' educational background includes high school and a few college courses. Prior to his employment with the City, Cords worked as a mechanic, farmed, drove a truck, and worked at an equipment company and a grocery store. As assistant superintendent of parks, Cords earned wages of $770.76 per week and reported only to the superintendent of parks, James Morgan, who in turn reported only to the mayor of Lincoln, Mike Johanns. Approximately 80 full-time employees were under Cords' supervision and direction. Cords' duties included overseeing the City's mechanical maintenance shop, carpentry maintenance shop, swimming pools, greenhouse, and four golf courses, along with seeing that orders were placed and fulfilled. In the performance of these duties, Cords would go to Lincoln's County-City Building approximately three to four times a week.

On July 7, 1992, Cords was told by his superior, Morgan, that due to a complaint against Cords, the City was offering him a chance to retire or he would be terminated. This ultimatum resulted from an alleged incident which involved a newspaper reporter. Cords asked Morgan whether he should contact the complaining party, retain a lawyer, or appeal to the mayor or personnel director regarding his job status. He was advised against contact with the complaining party but was informed that he was free to pursue whatever options he chose. Cords elected to contact the mayor's office and was able to schedule an appointment.

On July 8, 1992, Cords reported to work at approximately 7 a.m. and began performing some of his usual duties. At approximately 10:30 a.m., Cords went to the County-City Building to speak with the mayor and to speak with someone in the purchasing department about some grass seed he had ordered. Cords first attempted to inquire about the grass seed, but neither of the On July 9, 1992, while at home due to his injuries, Cords received a letter of termination of employment from Morgan. The letter, which was dated July 9, stated that Cords was suspended immediately pending discharge. The letter further stated that Cords had "ten working days to appeal this suspension prior to discharge" and that "at the end of the suspension period [he would] be terminated and may appeal the termination as provided in the Lincoln Municipal Code." On that date, Cords wrote a letter of resignation giving 2 weeks' notice and laid it on Morgan's desk.

                individuals he needed to speak with was there.  He then went to the mayor's office and was advised that the mayor would follow the recommendation of Morgan.  After speaking with the mayor, Cords went down to the first floor to speak with Ron Todd, an acquaintance in the personnel department.  After speaking with Todd, Cords decided to go back upstairs to "talk to the Mayor one more time."   On his way to the mayor's office, Cords decided against revisiting the mayor.  As a result, he started back down the stairs, planning to return to his office and to talk again to Morgan.  As he was approximately four to five stairs from the bottom of the stairwell, Cords slipped, turned his ankle, and fell backward onto the stairs, injuring his lower back.  After the fall, Cords went to the parks office to fill out an accident report, as is required after all accidents by City employees.  He then attempted to see Morgan, who was out of the office.  Cords then went to his own office and began returning phone calls, but began to hurt and decided to go home
                

As a result of his injury, Cords saw a family physician, an orthopedic surgeon, a physical therapist, and a neurologist. The orthopedic surgeon, Dr. Samuel Smith, gave Cords "a 2% partial permanent impairment for the body as a whole on the basis of his injury." At trial, Cords testified that he continued to suffer from lower back pain and from numbness in the...