McGowan v. Lockwood Corp.

• Decision Date: 04 February 1994
• Docket Number: No. S-92-634,S-92-634
• Parties: Richard D. McGOWAN, Appellant, v. LOCKWOOD CORPORATION and The Hartford, A Corporation, Appellees.
• Court: Nebraska Supreme Court

Page 118

511 N.W.2d 118

245 Neb. 138

Richard D. McGOWAN, Appellant, v. LOCKWOOD CORPORATION and The Hartford, A Corporation, Appellees.

No. S-92-634.

Supreme Court of Nebraska.

Feb. 4, 1994.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. 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 and will not be set aside on appeal unless clearly wrong.

2. Workers' Compensation: Evidence: Appeal and Error. A judgment, order, or award of the compensation court may be modified, reversed, or set aside if the record does not contain sufficient competent 3. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party.

evidence to warrant the making of the order, judgment, or award.

4. Statutes. The proper construction and application of statutory terms is a question of law.

5. Workers' Compensation: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

6. Appeal and Error. To be considered by an appellate court, an error must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred.

7. Workers' Compensation. All calculations to be made under the provisions of Neb.Rev.Stat. § 48-121 (Reissue 1988), and amendments thereto, have reference to wages, percentages, and results as of the time of injury.

8. Workers' Compensation. A finding that a workers' compensation claimant currently maintains a minimum-wage job is not, in and of itself, sufficient to support a denial of vocational rehabilitation benefits.

9. Workers' Compensation. A determination as to whether an injured worker has had a loss of earning power and whether there is a reasonable probability that vocational rehabilitation services would reduce the amount of earning power lost by an injured worker, if any, are questions of fact to be determined by the Workers' Compensation Court.

George P. Burke, of Burke & Wilson, Kimball, for appellant.

Richard A. Douglas, of Nichols, Douglas and Kelly, P.C., Scottsbluff, for appellees.

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

FAHRNBRUCH, Justice.

Richard D. McGowan, who was injured in an accident during the course of his employment with defendant Lockwood Corporation, claims that a majority of the three-judge panel of the Workers' Compensation Court failed to award him all of the workers' compensation benefits to which he is entitled. Defendant The Hartford was Lockwood's insurance carrier at the time McGowan was injured.

The Nebraska Court of Appeals affirmed the Workers' Compensation Court's ruling on the issues raised in McGowan's petition for further review. We granted further review on those issues.

We reverse on the issue of vocational rehabilitation benefits and affirm in all other respects.

ASSIGNMENTS OF ERROR

Summarized and restated, McGowan, in his petition to this court for further review, assigns as error the Court of Appeals' affirmance of the Workers' Compensation Court's (1) sustainment of objections to his testimony and offers of proof regarding his employment contract and the hours he worked, (2) calculations of his average weekly wage, and (3) denial of his request for vocational rehabilitation.

As to McGowan's first restated assignment of error in this court, we note that the Workers' Compensation Court panel originally sustained objections to McGowan's testimony and offers of proof regarding his average weekly wage during the relevant period involved. However, before the hearing was concluded, the panel reversed its ruling and received into evidence McGowan's testimony on the subject. Thus, McGowan's first summarized and restated assignment of error in this court requires no further discussion because it has no merit.

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 and will not be A judgment, order, or award of the compensation court may be modified, reversed, or set aside if the record does not contain sufficient competent evidence to warrant the making of the order, judgment, or award. Wiese v. Becton-Dickinson Co., 239 Neb. 1033, 480 N.W.2d 156 (1992). In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party. Hernandez, supra. The proper construction and application of statutory terms is a question of law. Yager, supra. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. See, id.; Elrod v. Prairie Valley, 214 Neb. 697, 335 N.W.2d 317 (1983).

set aside on appeal unless clearly wrong. Hernandez v. Hawkins Constr. Co., 240 Neb. 129, 480 N.W.2d 424 (1992); Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

FACTS

McGowan was hired by Lockwood in January 1990 and began working as a machinist in Lockwood's fabrication department. On April 4, during the course of his employment, McGowan turned to pick up a piece of iron and injured his right knee. He underwent arthroscopic knee surgery April 6, and returned to work April 24 or 25. On August 21, McGowan suffered a recurrence of his right-knee injury during the course of his employment while working with a 5- by 12-foot sheet of metal.

Because of the injury to his right knee, McGowan could not return to his previous duties. In mid-December 1990, Lockwood offered McGowan light-duty work. On December 17, McGowan was assigned the task of measuring certain distances in Lockwood's fabrication department. The personnel director expected that assignment to take 3 or 4 days. After McGowan finished the work in 1 1/2 to 2 hours, Lockwood's personnel director assigned McGowan to work as a clerk in the company's toolcrib. He worked there 4 hours on the afternoon of December 17, 7 hours on December 18, and 5 hours on December 19. McGowan was paid $5 per hour for the measuring and toolcrib work. The evidence is in conflict as to whether the toolcrib work would be permanent.

As a Lockwood machinist, McGowan initially was paid $6 per hour plus a 25-cents-per-hour shift differential. Prior to the accident on April 4, McGowan had received a wage increase to $6.33 per hour. He continued to receive the 25-cents-per-hour shift differential. At the time of the recurrence of his knee injury on August 21, McGowan was earning $6.61 per hour plus a 25-cents-per-hour shift differential.

McGowan last worked for Lockwood on December 19, 1990. He left his toolcrib work early that day for an appointment with a counselor from the division of vocational rehabilitation services. This absence from work was approved by his supervisor.

As a result of McGowan's consultations with the vocational rehabilitation counselor, a plan was developed by which McGowan would study farm or ranch management at a community college, with the ultimate goal of becoming a feedlot or ranch manager. With financial aid from the division of vocational rehabilitation services, McGowan began attending Western Nebraska Community College in Scottsbluff in January 1991. He was in his third semester at the time of his hearing before the three-judge compensation court panel in March 1992. At the time of the hearing, McGowan, who was then 45 years old, was wearing a right knee brace which he had worn since September 1990.

About a month after McGowan started school, he began working part time at Banner Feed Company in a feedlot. He worked at this part-time job until the first part of June 1991, and earned $5 per hour. His job included riding a horse through the cattle pens and helping process cattle. McGowan testified that he left that job "because they were out of cattle down there. They didn't have any more part-time work."

In June 1991, McGowan worked for about 10 days swathing alfalfa for a local farmer. He worked 2 to 5 hours per day and was paid $6.50 per hour. Later, he helped his wife and two children take care of 63 cows and 8 After completion of a single-judge hearing, the compensation court found that McGowan had suffered a 44-percent permanent disability of his right leg and that he was entitled to vocational rehabilitation services as well as compensation and other benefits. Following a rehearing, a majority of a three-judge compensation panel agreed with the single compensation judge's calculation of McGowan's average weekly wage of $302.24. Although awarding McGowan other benefits, the panel majority refused to award McGowan vocational rehabilitation services, stating that he "failed to prove that he is unable to return to work for which he has had prior training or experience...." The panel majority found that McGowan could have continued as a toolcrib clerk and that he was working as a cowboy as well.

horses that he and his wife purchased in the fall of 1991 with borrowed money.

On appeal, the Court of Appeals affirmed the panel majority's ruling on all issues raised in McGowan's petition for further review. The Court of Appeals found sufficient evidence to support the panel majority's computations of McGowan's weekly wages. In addition, the Court of Appeals found that the toolcrib clerk position provided a salary comparable to McGowan's previous salary and that the clerk position required no vocational rehabilitation.

ANALYSIS

In regard to his second and third summarized and restated assignments of error in this court, McGowan argues that on rehearing, the panel majority of the Workers' Compensation Court and the Court of Appeals in its review failed to apply the...