Johnson v. Ford New Holland, Inc., S-97-733

• Decision Date: 06 March 1998
• Docket Number: No. S-97-733,S-97-733
• Citation: 254 Neb. 182,575 N.W.2d 392
• Parties: LeRoy JOHNSON, Appellant, v. FORD NEW HOLLAND, INC., Appellee.
• Court: Nebraska Supreme Court

Page 392

575 N.W.2d 392

254 Neb. 182

LeRoy JOHNSON, Appellant, v. FORD NEW HOLLAND, INC., Appellee.

No. S-97-733.

Supreme Court of Nebraska.

March 6, 1998.

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

3. Workers' Compensation: Judgments: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. However, the findings of fact made by a workers' compensation judge on original hearing have the effect of a verdict and are not to be disturbed on appeal unless clearly wrong.

4. Workers' Compensation. The Workers' Compensation Court does not have the right to establish rules of evidence, procedure, or discovery that are more restrictive or onerous than the rules applicable to the trial courts in this state.

5. Workers' Compensation: Pretrial Procedure. Substantive sanctions regarding discovery and other pretrial matters in the Workers' Compensation Court should be subject to at least the same procedural safeguards as comparable sanctions for alleged 6. Pretrial Procedure. Before the ultimate sanction of prohibiting a party from introducing otherwise admissible evidence is imposed in civil cases, all affected parties must have received notice and an opportunity to be heard on the merits.

discovery violations in Nebraska's civil courts.

7. Hearsay. Medical reports produced outside of the courtroom are hearsay.

8. Workers' Compensation: Rules of Evidence: Appeal and Error. The 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.

9. Motions for Continuance: Appeal and Error. A motion for continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.

10. Workers' Compensation. Neb.Rev.Stat. § 48-101 (Reissue 1993) compensates injury caused an employee by an accident arising out of and in the course of his or her employment.

11. Workers' Compensation: Proof. To recover workers' compensation benefits, an injured worker is required to prove by competent medical testimony a causal connection between the alleged injury, the employment, and the disability.

12. Workers' Compensation. A workers' compensation award cannot be based on possibility or speculation, and if an inference favorable to the claimant can only be reached on the basis thereof, then the claimant cannot recover.

Thomas A. Wagoner, Grand Island, for appellant.

Thomas D. Wulff and Kevin L. Flynn, of Welch & Wulff, Omaha, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN and McCORMACK, JJ.

CONNOLLY, Justice.

The trial court of the Nebraska Workers' Compensation Court refused to accept appellant Le Roy Johnson's unsigned medical report into evidence because it was not timely disclosed, in violation of Workers' Comp.Ct.R. of Proc. 4 (1996), and was not signed, in violation of Workers' Comp.Ct.R. of Proc. 10 (1996). The court then denied Johnson's motion for a continuance. Subsequently, the action was dismissed because Johnson failed to show causation. A review panel of the Workers' Compensation Court affirmed. We conclude that the trial court did not abuse its discretion by rejecting Johnson's unsigned medical report and by denying Johnson a continuance. We further conclude that the trial court did not err in determining that Johnson failed to prove causation. Accordingly, we affirm.

BACKGROUND

On January 20, 1994, while working for appellee Ford New Holland, Inc., Johnson used a hoist to position a combine component, known as a "grain head," that weighed approximately 2,500 to 3,000 pounds. As Johnson was positioning the grain head with the hoist, the grain head came toward him and he fell backward. Johnson felt a "twinge" in his back and testified that "it hurt." Johnson reported the incident to his supervisor but did not seek medical attention at that time. Johnson's back continued to bother him at work the next day, and at the end of his shift, Johnson told his supervisor that "[he could] hardly stand it."

Johnson had sustained a previous injury at Ford New Holland in 1983, when his foot became caught in some wire mesh while he was working several feet off the ground. As a result, Johnson fell and ended up hanging by his right leg. Johnson was stiff and sore following the incident but did not take any time off work as a result of it. The record indicates that Johnson experienced some pain in his right leg following this incident.

On January 23, 1994, Johnson bent over to pick up a paper from the floor in his home. When Johnson bent over, he could not get back up and had to be assisted to a chair.

                The next day, [254 Neb. 185] Johnson went to see his family physician, Dr. William Fowles, who later referred Johnson to Dr. Gordon D. Bainbridge.  Johnson did not work for about a month following the injury, then returned to work on "light duty."   Johnson continued to experience pain, and Dr. Bainbridge referred him to Dr. Patrick W. Bowman.  Under Dr. Bowman's care, Johnson underwent surgery on May 30, 1996, and following surgery, he did not return to work until August 1996.  After he returned to work, Johnson did not work full time but was on a schedule whereby his working hours would be gradually increased.  At the time of trial, Johnson was working 4 hours each workday
                

On January 16, 1996, Johnson filed a workers' compensation action in the Workers' Compensation Court, alleging that on or about January 23, 1994, he sustained a herniated thoracic disk in the course of his employment with Ford New Holland and that Ford New Holland had refused to pay some of his medical and hospitalization expenses, temporary total benefits, and compensation for his loss of earning capacity. Ford New Holland denied the allegations in Johnson's petition. Trial was set for July 24, 1996, and later was continued at Johnson's request until September 26.

At trial, two exhibits were entered into evidence. Exhibit 1 contained a written statement by Dr. Bainbridge. Following a description of the 1983 incident and Johnson's injuries on January 20 and 23, 1994, Dr. Bainbridge wrote:

[Johnson] asked me if this was related to the initial injury, he tells me the pain he is having in his right leg is the same as he experienced when he fell and I told him I can't preclude the fact that that might be the precipitating factor.

The statement did not specifically state which incident Dr. Bainbridge was referring to when he wrote "the initial injury" and "when he fell." Exhibit 1 also contained a report by Dr. Bowman describing Johnson's prior accidents and symptoms. Exhibit 2 contained a health insurance claim form filed by Dr. Bowman for services provided to Johnson on May 30, 1996. A box next to the word "no" was checked on the claim form in response to the question of whether the patient's condition was related to employment.

Johnson offered exhibit 3, consisting of a letter from Dr. Bainbridge stating that Johnson was injured at Ford New Holland in January 1994 and that, to a reasonable degree of medical certainty, Dr. Bainbridge believed the injury sustained at Ford New Holland resulted in Johnson's thoracic disk injury which required surgical intervention. The letter was dated September 25, 1996, 1 day before the trial, and was not signed. Ford New Holland objected to the exhibit on the grounds that it was not timely disclosed and was not signed by Dr. Bainbridge. Johnson argued that he had received the letter only the day before the trial and did not have time to get a copy to Ford New Holland on that day, and he stated that, if the objection was for timeliness, he was requesting a continuance. The trial court sustained the objection to the exhibit and denied the motion for a continuance. The trial court subsequently dismissed the action with prejudice because causation had not been established. The trial court further stated in its order that exhibit 3 was not admitted into evidence because it was dated 1 day before trial, was not signed, and thus, was not admissible under rules 4 and 10. The review panel affirmed the trial court's decision.

ASSIGNMENTS OF ERROR

Johnson assigns that the compensation court erred in (1) failing to receive his proposed exhibit 3, (2) refusing his motion for a continuance, and (3) finding he had failed to establish causation between his accident and the injuries he sustained.

STANDARD OF REVIEW

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 In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review...