Miner v. Robertson Home Furnishing

Decision Date15 November 1991
Docket NumberNo. 91-064,91-064
PartiesMelvin Lee MINER, Appellant, v. ROBERTSON HOME FURNISHING and Cornhusker Casualty, Appellees. State of Nebraska, Vocational Rehabilitation Fund, Intervenor-Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Workers' Compensation. Agreements to settle workers' compensation cases not filed in and approved by the Workers' Compensation Court are void and of no effect.

2. Workers' Compensation. A finding that an employee's injury is compensable under the Workers' Compensation Act is required for approval of any vocational rehabilitation plan paid for by the vocational rehabilitation trust fund.

3. Workers' Compensation. When the parties to a workers' compensation suit agree to a settlement including a program of vocational rehabilitation paid for by the employer or its insurer, a finding that the injury is covered by the act is not necessarily required.

4. Workers' Compensation: Legislature: Intent. The Legislature intended the Workers' Compensation Court, in approving settlement agreements, to focus on protecting the economic interests of the employee, rather than assessing the validity of the underlying claim.

5. Workers' Compensation: Appeal and Error. Findings of fact by the 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.

6. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court after rehearing, the evidence is considered in the light most favorable to the successful party.

7. Workers' Compensation: Proof. In a workers' compensation case involving a preexisting condition, the claimant must prove by a preponderance of evidence that the claimed injury or disability was caused by the claimant's employment and is not merely the progression of a condition present before the employment-related incident alleged as the cause of the disability.

8. Workers' Compensation. A workers' compensation claimant is entitled to 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.

9. Workers' Compensation: Expert Witnesses. Unless its nature and effect are plainly apparent, an injury is a subjective condition requiring an expert opinion to establish a causal relationship between the incident and the injury or disability.

10. Workers' Compensation: Expert Witnesses. An expert's opinion is not sufficient to support a claim unless the opinion is based on a reasonable degree of medical certainty or a reasonable probability.

11. Appeal and Error. Regarding a question of law, the Supreme Court has an obligation to reach its conclusion independent of the conclusion reached by the court whose judgment is subject to review.

12. Workers' Compensation: Expert Witnesses: Proof. Expert testimony giving rise to conflicting inferences of equal probability as to the cause of an injury is insufficient, but if the inferences are not equally consistent and the more probable 13. Workers' Compensation: Expert Witnesses: Proof: Words and Phrases. Medical testimony expressed in terms of "possibility" is insufficient, while such testimony couched in terms of "probability" is sufficient.

conclusion supports the employee's claim, the claimant sustains his burden of proof on that issue.

14. Workers' Compensation: Expert Witnesses. "Magic words" to the effect that an expert's opinion is based on a reasonable degree of medical certainty or probability are not necessary.

15. Workers' Compensation: Expert Witnesses. The sufficiency of an expert's opinion is judged in the context of the expert's entire statement.

O. William VonSeggern, of Grimminger & VonSeggern, Grand Island, for appellant.

Scott A. Burcham and David A. Dudley, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees.

Don Stenberg, Atty. Gen., and Lisa D. Martin-Price, Lincoln, for intervenor-appellee.

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

WHITE, Justice.

This workers' compensation case is before us for the second time. The first decision is reported at Miner v. Robertson Home Furnishing, 236 Neb. 514, 462 N.W.2d 96 (1990). This court takes judicial notice of the record in that case. See State ex rel. Pederson v. Howell, 239 Neb. 51, 474 N.W.2d 22 (1991).

BACKGROUND

The record shows that the plaintiff-appellant, Melvin Lee Miner, has a history of back problems. On October 10, 1986, while in the employ of the defendant-appellee Robertson Home Furnishing (Robertson), Miner reinjured his back while moving a refrigerator. Robertson and its insurer, defendant-appellee Cornhusker Casualty, voluntarily paid Miner's medical bills and disability from the date of injury until the initial hearing in this case.

After the October 10 accident, the parties also agreed to a vocational rehabilitation plan whereby Miner would be trained as a pilot so that he could become a crop duster. This plan was denied, however, by the vocational rehabilitation specialist of the Workers' Compensation Court. See Neb.Rev.Stat. § 48-162.01 (Reissue 1988). Based on this rejection, Miner filed suit in the Workers' Compensation Court on July 15, 1988. In their answer, the appellees for the first time denied that Miner's condition arose out of and in the course of his employment with Robertson.

After a hearing held on November 16, 1988, the Workers' Compensation Court found that Miner's injuries were caused by the October 10 accident and thus were compensable, but rejected the rehabilitation plan agreed to by the parties. The court gave Miner 90 days to submit a new plan for approval.

Following this disposition two significant events occurred. First, the appellees petitioned for a rehearing, contesting the court's findings that Miner's injuries arose out of and during the course of his employment with Robertson and that he was entitled to vocational rehabilitation. Second, an alternative rehabilitation plan signed by both Robertson's insurer and the Workers' Compensation Court rehabilitation specialist, dated February 10, 1989, was received in the Workers' Compensation Court on March 6.

On rehearing, the Workers' Compensation Court dismissed Miner's petition, finding that he failed to produce sufficient expert evidence linking his injuries to the accident of October 10. We remanded for a clarification regarding whether certain evidence was admitted during the rehearing and whether the second rehabilitation plan constituted a settlement of the case. In response, the Workers' Compensation Court filed an "Amplification of Dismissal," from which Miner appeals.

ASSIGNMENTS OF ERROR

On appeal, Miner argues that the Workers' Compensation Court erred in (1) finding that the second rehabilitation plan did not constitute a binding settlement of the case and (2) finding that he failed to produce expert testimony sufficiently definite and certain to establish a causal connection between his injuries and the October 10 accident.

THE REHABILITATION PLAN

In its amplified order, the Workers' Compensation Court states that the second rehabilitation plan was received into evidence and considered by the rehearing panel. The court then offers three grounds for its decision that the plan does not constitute a binding settlement agreement. First, the court asserts that "an employee who suffers disability as a result of an injury not covered by the Nebraska Workers' Compensation Act is not entitled under any circumstances to vocational rehabilitation services under the Act." Second, the court finds that the plan does not constitute an agreement to settle the case. Finally, the court holds that even if the plan does manifest an agreement to settle the case, it is not binding because the court never approved it.

Neb.Rev.Stat. § 48-136 (Reissue 1988) requires that a copy of any settlement agreement reached by the parties be filed with the Workers' Compensation Court and that the agreement otherwise comply with the act. Neb.Rev.Stat. § 48-140 (Reissue 1988) provides that no settlement is final unless approved by and "a finding [is made] by" the Workers' Compensation Court and the district court or any appellate court. This court has construed these two sections as rendering void and of no effect settlement agreements not filed in and approved by the Workers' Compensation Court. See, Duffy Brothers Constr. Co. v. Pistone Builders, Inc., 207 Neb. 360, 299 N.W.2d 170 (1980); James v. Rainchief Constr. Co., 197 Neb. 818, 251 N.W.2d 367 (1977); Miller v. Schlereth, 151 Neb. 33, 36 N.W.2d 497 (1949); Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810 (1943); Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935).

In its amplified order, the Workers' Compensation Court suggests that a finding that the injury is covered by the act is necessary to approve a settlement involving vocational rehabilitation. Though it is not necessary to specifically decide this issue today, we question the validity of this conclusion.

Section 48-162.01 gives the Workers' Compensation Court authority to include a program of vocational rehabilitation in a covered employee's compensation award. The costs of such a program are paid for out of a state vocational rehabilitation trust fund. See § 48-162.01(3) and Neb.Rev.Stat. § 48-162.02 (Reissue 1988). To facilitate the efficient and effective provision of rehabilitation programs, the Legislature also authorized the Workers' Compensation Court to hire vocational rehabilitation specialists to maintain a directory of approved rehabilitation facilities and to aid the court in determining appropriate rehabilitation plans for injured...

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    ...notwithstanding that in the absence of the preexisting condition no disability would have resulted. Miner v. Robertson Home Furnishing, 239 Neb. 525, 531, 476 N.W.2d 854, 859 (1991). We do not accept the defendants' characterization that Cox was performing "everyday activity" when he sustai......
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