Norris v. Iowa Beef Processors, Inc.

• Decision Date: 13 March 1987
• Docket Number: No. 86-159,86-159
• Citation: 402 N.W.2d 658,224 Neb. 867
• Court: Nebraska Supreme Court
• Parties: Larry J. NORRIS, Appellee and Cross-Appellant, v. IOWA BEEF PROCESSORS, INC., Appellant and Cross-Appellee, State of Nebraska, Second Injury Fund, Appellee and Cross-Appellee.

Page 658

402 N.W.2d 658

224 Neb. 867

Larry J. NORRIS, Appellee and Cross-Appellant, v. IOWA BEEF PROCESSORS, INC., Appellant and Cross-Appellee State of Nebraska, Second Injury Fund, Appellee and Cross-Appellee.

No. 86-159.

Supreme Court of Nebraska.

March 13, 1987.

Syllabus by the Court

1. Workers' Compensation: Second Injury Fund. Under the statutory scheme of Neb.Rev.Stat. § 48-128 (Reissue 1984), the amount payable from the Second Injury Fund is, ordinarily, the difference between the weekly benefits payable for permanent disability from a second injury which is compensable and the weekly benefits payable for the combined permanent disabilities from a previous injury and such second injury.

2. Workers' Compensation: Second Injury Fund: Proof. To recover from the Second Injury Fund, Neb.Rev.Stat. § 48-128 (Reissue 1984), a claimant must prove by a preponderance of evidence (1) a prior permanent partial disability, (2) a second or subsequent injury which is compensable, causing permanent disability, and (3) the combination of permanent disabilities existing after such second or subsequent injury is substantially greater in degree or percentage than permanent disability from the second or subsequent injury, considered by itself and not in conjunction with the prior permanent disability.

3. Workers' Compensation: Second Injury Fund: Proof. One claiming against the Second Injury Fund, Neb.Rev.Stat. § 48-128 (Reissue 1984), has the burden to prove that the combination of permanent disabilities is substantially greater in degree or percentage than the permanent disability from the second or subsequent compensable injury considered by itself.

4. Workers' Compensation: Second Injury Fund. Whether a combination of permanent disabilities, within the purview of Neb.Rev.Stat. § 48-128 (Reissue 1984), is substantially greater than permanent disability from a second or subsequent compensable injury is a question of fact.

5. 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.

6. Workers' Compensation: Appeal and Error. 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.

7. Workers' Compensation: Appeal and Error. Factual determinations by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly wrong. Regarding facts determined and findings made after rehearing in the Workers' Compensation Court, Neb.Rev.Stat. § 48-185 (Reissue 1984) 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.

8. Workers' Compensation: Witnesses. 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. Entering into a resolution by the Workers' Compensation Court regarding any conflict of evidence are factors such as the respective interests of the parties in the lawsuit; demeanor of witnesses, including the parties, while testifying before the court; the apparent fairness exhibited by the witnesses; the extent to which the testimony of the various witnesses was corroborated; and the reasonableness or unreasonableness of statements of such witnesses.

9. Workers' Compensation: Second Injury Fund: Words and Phrases. With the exception of increased disability resulting from additional injury to the same specific member of the body, as classified by Neb.Rev.Stat. § 48-121(3) (Reissue 1984), disability, for the purpose of Neb.Rev.Stat § 48-128 (Reissue 1984) means the decrease or loss of earning power (capacity) or diminished employability.

10. Workers' Compensation: Second Injury Fund: Proof. In addition to establishing an employee's decrease or loss of earning power or diminished employability, a claimant seeking payment from the Second Injury Fund must also establish that, after the second or subsequent compensable injury, an employee's combined permanent disabilities are substantially greater than the permanent disability from the last compensable injury considered by itself.

11. Workers' Compensation: Second Injury Fund: Words and Phrases. Under Neb.Rev.Stat. § 48-128 (Reissue 1984), a combination of permanent disabilities is "substantially greater" than permanent disability from the second or subsequent injury when the resulting permanent disability from all causes combined is substantially greater than the disability resulting solely from the second or subsequent compensable injury.

12. Workers' Compensation: Second Injury Fund. For the combination of permanent disabilities necessary to sustain a claim against the Second Injury Fund, the prior permanent partial disability or disabilities must interact with the effects of the second or subsequent compensable injury and enhance the permanent disability that otherwise results from the later compensable injury alone.

13. Workers' Compensation: Appeal and Error. In an appeal after rehearing in the Nebraska Workers' Compensation Court, the Supreme Court will consider only those issues or questions properly presented and disposed in the Nebraska Workers' Compensation Court.

14. Appeal and Error. In the absence of plain error, where an issue is raised for the first time in the Supreme Court, such issue will be disregarded inasmuch as the court whose judgment is being reviewed cannot commit error regarding an issue never presented and submitted for disposition.

Wayne E. Boyd of Smith & Boyd, South Sioux City, for appellant.

Dennis J. Mahr, Sioux City, Iowa, for appellee Norris.

Robert M. Spire, Atty. Gen., and John R. Thompson, Lincoln, for appellee Second Injury Fund.

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

SHANAHAN, Justice.

Iowa Beef Processors, Inc., now IBP, Inc., appeals the award obtained by Larry J. Norris in the Nebraska Workers' Compensation Court. Also, the Nebraska Workers' Compensation Court dismissed the action against the State of Nebraska, Second Injury Fund, impleaded by IBP. Norris cross-appeals on issues regarding the degree of Norris' permanent disability determined by the Nebraska Workers' Compensation Court, and compensation from the Second Injury Fund. We affirm.

In his petition Norris alleged that as a result of his employment at IBP, he had sustained bodily injuries, and sought compensation for injuries to his legs, shoulders, right arm, and back. IBP filed a "claim against the Second Injury Fund," and the State of Nebraska, Second Injury Fund, was impleaded in the action.

Born on March 23, 1949, Larry Norris, at age 4, sustained accidental injury to his right eye and, since age 7, has had a prosthesis in his right eye socket. Norris has corrected vision in his left eye but has some trouble with peripheral vision in that eye. On account of Norris' loss of sight in the right eye, some prospective employers declined to hire Norris at the risk of possible total blindness resulting from employment. In his written application to IBP for employment in 1976, Norris stated: "I'm blind in my right eye." Similar statements about the absence of sight in Norris' right eye appear in other records of IBP, establishing IBP's knowledge of the disability when IBP hired Norris.

From 1978 through the fall of 1983, IBP employed Norris as a "beef lugger," a job which required Norris to unload trucks and carry quarters of beef which had an average weight of 185 pounds. The lightest pieces of beef weighed 135 pounds, and the quarters had a normal maximum weight of 235 pounds. Norris carried an average of 480 pieces of beef per day, thus daily bearing an average weight of more than 88,000 pounds of beef. While a truck was being unloaded, "fronts" of beef dropped a distance of 2 feet from the delivery truck onto Norris' shoulders. Occasionally, workers slipped and fell on the plant floor, which was slick with animal fat and blood.

In 1980, Norris slipped and fell at IBP, underwent six separate surgical procedures on his knees (three procedures on each knee), and eventually required a patellectomy (removal of kneecap) of his right knee in 1984. Norris also suffered a carpal tunnel syndrome (nerve entrapment at the wrist or elbow) in his right arm, restricting mobility and repetitive work involving Norris' right arm.

As a consequence of his employment at IBP, Norris sustained various bodily injuries resulting in his inability to be on his feet for any prolonged duration; shoulder problems experienced when Norris pushed or reached with his arms; inability to lift more than 40 pounds; limitations in pushing and pulling leg controls on machinery or equipment; and general difficulty in squatting and crawling or climbing stairs. Loss of sight in the right eye never interfered with Norris' job at IBP.

Since 1981 Dr. John J. Dougherty, an orthopedist, has treated Norris' various injuries. Dr. Dougherty expressed his opinion that Norris has sustained permanent partial disability in five areas on account of injuries sustained at IBP, namely, disability of 1 percent of the right arm, 20 percent of the right knee, 5 to 10 percent of the left knee, and 1 to 2 percent in each shoulder. Referring to the American Medical Association, Guides to the Evaluation of Permanent Impairment (2d ed. 1984), and as an additional evaluation based on the five separate areas of Norris' disability, Dr. Dougherty extrapolated percentages of permanent disability to Norris' body as a whole. According to Dr. Dougherty, Norris sustained the following permanent partial disability to the body as a whole: 1 percent as the result of the arm injury; 8...