Heiliger v. Walters and Heiliger Elec., Inc.

• Decision Date: 26 October 1990
• Docket Number: No. 90-013,90-013
• Citation: 461 N.W.2d 565,236 Neb. 459
• Parties: Duane P. HEILIGER, Appellee, v. WALTERS AND HEILIGER ELECTRIC, INC., a Nebraska Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 565

461 N.W.2d 565

236 Neb. 459

Duane P. HEILIGER, Appellee, v. WALTERS AND HEILIGER ELECTRIC, INC., a Nebraska Corporation, Appellant.

No. 90-013.

Supreme Court of Nebraska.

Oct. 26, 1990.

Syllabus by the Court

1. Workers' Compensation: Proof. In a workers' compensation case, by a preponderance of evidence a claimant must prove that the claimant's employment proximately caused the claimed injury or disability and thereby correspondingly negate that a claimant's condition existing independent of the claimant's employment and before a work-related incident alleged to be a cause of the claimed disability is the sole cause of the disability for which compensation is sought.

2. Workers' Compensation: Proof. A claimant is entitled to an award under the Workers' Compensation Act for a work-related injury and disability if the claimant shows, by a preponderance of evidence, that the claimant sustained an injury and disability proximately caused by an accident which arose out of and in the course of the claimant's employment, even though a preexisting disability or condition has combined with the present work-related injury to produce the disability for which the claimant seeks an award.

3. Workers' Compensation. A workers' compensation claimant may recover when an injury, arising out of and in the course of employment, combines with a preexisting condition to produce disability, notwithstanding that in the absence of the preexisting condition no disability would have resulted.

4. Workers' Compensation: Proof: Case Disapproved. Language in previous decisions, such as Brokaw v. Robinson, 183 Neb. 760, 164 N.W.2d 461 (1969); Benson v. Barnes & Barnes Trucking, 217 Neb. 865, 354 N.W.2d 127 (1984); Hayes v. A.M. Cohron, Inc., 224 Neb. 579, 400 N.W.2d 244 (1987); and Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988), which has imposed an enhanced degree of proof by an employee prosecuting a claim under the Nebraska Workers' Compensation Act is disapproved.

5. Workers' Compensation: Proof. For an award based on disability, a claimant must establish, bya preponderance of the evidence, that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act.

6. Proximate Cause: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.

7. Workers' Compensation. An employee's disability as a basis for compensation under Neb.Rev.Stat. § 48-121(1) and (2) (Reissue 1988) is determined by the employee's diminution of employability or impairment of earning power or earning capacity, and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function.

8. Workers' Compensation. An employee's return to work does not in every case terminate an employee's total disability 9. Workers' Compensation. If an employee, after a work-related injury, receives wages equal to or greater than the wages received before the injury, the wages may be considered in the determination whether an employee has sustained an impairment of earning capacity.

from a work-related injury and does not preclude a finding that the employee's total disability continues notwithstanding the return to work.

10. Workers' Compensation. When an injured workerhas attained maximum physical recovery after a work-related injury, any residual disability from a compensable injury is permanent and prevents the worker's entitlement to compensation for temporary disability.

11. Workers' Compensation: Second Injury Fund. In the absence of an established claim against the Second Injury Fund, Neb.Rev.Stat. § 48-128 (Reissue 1988), an employee may be entitled to full compensation from the employer, notwithstanding that the employee's disability is the result of a preexisting condition aggravated by a work-related injury.

12. Expert Witnesses. A fact finder or trier of fact may accept or reject an opinion from an expert witness.

13. Expert Witnesses. A good faith conflict due to self-contradiction of an expert's opinions presents a question to be resolved by the trier of fact.

Wesley C. Mues, of Knapp, Mues, Beavers, Luther & Fangmeyer, Kearney, for appellant.

Andrew J. McMullen, Kearney, for appellee.

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

SHANAHAN, Justice.

Walters and Heiliger Electric, Inc. (W & H Electric), appeals from an award on rehearing by the Nebraska Workers' Compensation Court in favor of Duane P. Heiliger (Heiliger). We affirm.

STANDARD OF REVIEW

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. [Citations omitted.] 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. [Citations omitted.] Factual determinations by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous. Regarding facts determined and findings made after rehearing in the Workers' Compensation Court, § 48-185 precludes the Supreme Court's substitution of its view of facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. [Citations omitted.] 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.

Fees v. Rivett Lumber Co., 228 Neb. 617, 620, 423 N.W.2d 483, 486 (1988); Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987); Neb.Rev.Stat. § 48-185 (Reissue 1988).

BACKGROUND FOR CLAIM

Heiliger's Injury.

As a shareholder and president of W & H Electric, a corporate electrical contractor, Heiliger was also employed as an electrician for W & H Electric and was frequently involved in its electrical work. In his duties as an electrician, Heiliger lifted heavy objects such as spools of copper wire. Before March 16, 1988, Heiliger was also responsible for onsite management of W & H Electric's projects, work which required that he drive to each of the company's projects and help individual workers. Heiliger's only office work involved W & H Electric's occasional bidding on new projects.

On March 16, 1988, Heiliger and a fellow worker, Eugene Walters, who was also the vice president and office manager of W & H Electric, were transferring "[t]housand foot reels of copper wire" from a pickup to a storage trailer at one of W & H Electric's jobsites. Each spool, weighing slightly more than 100 pounds, had to be moved from the pickup into the trailer's doorway, which was about 2 feet above the bed of the pickup. Heiliger, facing generally toward the spools in the pickup and with his feet stationary on the pickup's bed, lifted a spool and, in a "twisting motion," placed the spool in the trailer's elevated entry. During the process of lifting and twisting with a spool of wire, Heiliger "felt a sensation in his back," and experienced "back and leg pain, mainly leg pain." According to Heiliger, "I knew that I'd--I'd injured myself." At that point, Heiliger told Walters that Heiliger had sustained "this [back] injury." A year earlier, Heiliger had a back malady of undetermined origin and had undergone disk surgery in March 1987, but had experienced no back problem for the "eight to nine" months immediately preceding March 1988. When Walters and Heiliger returned to W & H Electric's shop on March 16, Heiliger told other W & H Electric employees that he had injured his back earlier that day.

Heiliger's Medical Treatment and Surgery.

On account of persistent back pain, on March 30, 1988, Heiliger went to the office of Dr. Ramon R. Salumbides, the surgeon who had performed a hemilaminectomy on Heiliger in March 1987. Regarding Heiliger's previous hemilaminectomy, Dr. Salumbides had noted in 1987:

Patient approximately three weeks now post lumbar laminectomy and disc excision of L5-S1 on the left side. He does not complain of any severe pain in his back or leg.... He occasionally has some tightness which is experienced in the lumbar area. Upon certain turning he will experience some achiness also in the posterior aspect of the left thigh but rather mild.

EXAMINATION: The wound is healing well. No tenderness over the operative site. Straight leg raising test is bilaterally negative. His gait is normal. Patient is able to flex his back 90 degrees but would experience some discomfort in the back of the left thigh.

Post-operative course is quite satisfactory.

At the time of Heiliger's March 1988 visit, Dr. Salumbides recorded the following:

MAR 30 1988 [Heiliger] is returning for a consult because of recurrence of back pain. He states that two weeks ago he did some heavy lifting involving weights of up to about 100 pounds. He was lifting wires weighing that much and was transferring and twisting his back in the process. He then experienced sudden and severe pain in his lumbar area with radiation towards the left buttock. Much of the pain is mostly concentrated over his lumbar are[a]. He feels that he describes a funny sensation in the posterior aspect of the left thigh but no actual pain. He has not had any treatment in the form of medications or physical therapy since that time. Over the last two days he feels much better. Sitting and walking is well tolerated. Turning from side to side while in bed on occasion causes some discomfort. Getting out of bed in the morning is also most difficult for him.

When Heiliger's back pain persisted, Dr. Salumbides, on April 28, 1988, reexamined Heiliger and later recommended another hemilaminectomy, which Dr. Salumbides performed on May 3, 1988, at the same general site as the previous hemilaminectomy, the fifth lumbar and first sacral...