Pearson v. Lincoln Telephone Co.

• Citation: 513 N.W.2d 361,2 Neb.App. 703
• Decision Date: 15 March 1994
• Docket Number: No. A-93-656,A-93-656
• Parties: Clinton D. PEARSON, Appellee, v. LINCOLN TELEPHONE COMPANY, Appellant.
• Court: Nebraska Court of Appeals

Page 361

513 N.W.2d 361

2 Neb.App. 703

Clinton D. PEARSON, Appellee, v. LINCOLN TELEPHONE COMPANY, Appellant.

No. A-93-656.

Court of Appeals of Nebraska.

March 15, 1994.

Syllabus by the Court

1. Workers' Compensation: Final Orders. An order of a workers' compensation review panel which vacates a trial judge's dismissal and remands the case for trial is a final, appealable order.

2. Workers' Compensation: Appeal and Error. Factual determinations by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous.

3. Workers' Compensation. 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.

4. Statutes: Legislature: Intent. When statutory language is ambiguous and must be construed, recourse should be had to the legislative history for the purpose of discovering the lawmakers' intent.

5. Workers' Compensation: Appeal and Error. The findings of fact made by a Workers' Compensation Court trial judge are not to be disturbed upon appeal to a Workers' Compensation Court review panel unless they are clearly wrong, and if the record contains evidence to substantiate the factual conclusions reached by the trial judge, the review panel shall not substitute its view of the facts for that of the trial judge.

6. Workers' Compensation: Appeal and Error. If a Workers' Compensation Court review panel makes different findings of fact from those of the trial judge when there is evidence in the record before the trial judge to support the judge's findings, then the review panel has acted in excess of its powers.

7. Workers' Compensation: Expert Witnesses. Triers of fact are not required to take an expert's opinion as binding upon them, and a trier of fact may accept or reject an opinion from an expert witness.

J. Taylor Greer, of Woods & Aitken, Lincoln, for appellant.

Robert R. Moodie, of Friedman Law Offices, Lincoln, for appellee.

Before SIEVERS, C.J., and IRWIN and MILLER-LERMAN, JJ.

SIEVERS, Chief Judge.

In this case, we address the scope of review by a three-judge panel of the Workers' Compensation Court (review panel) after trial of the case to a single judge of the Workers' Compensation Court (trial judge or trial court). Rehearings before three-judge panels were eliminated in 1992 Neb.Laws, L.B. 360, in favor of a trial on the record to a single judge followed by review of that record by a three-judge panel. See Neb.Rev.Stat. § 48-179 (Cum.Supp.1992).

The trial judge dismissed the petition of Clinton D. Pearson, who claimed hearing loss by "accident arising out of and in the course of" his employment with Lincoln Telephone Company. The review panel vacated the order of dismissal, and "the cause [was] remanded to a trial judge for further determination." Lincoln Telephone appeals the vacation of the dismissal and the remand to the trial court. We reverse.

JURISDICTION

Pearson argues that the order of remand is not a final, appealable order, as it is interlocutory. Lincoln Telephone counters by asserting that the order of the review panel affects a substantial right in a special proceeding and is therefore final for purposes of appeal. Even if jurisdiction is not raised by the parties, an appellate court is dutybound to examine jurisdiction. Zoet v. Zoet, 2 Neb.App. 71, 507 N.W.2d 42 (1993).

The Nebraska Supreme Court, in Jarrett v. Eichler, 244 Neb. 310, 506 N.W.2d 682 (1993), points out that it is an erroneous assumption that an order is not final until it resolves all of the substantive issues between the parties. Pearson takes this erroneous position when he argues that the case must be tried upon remand before there is a final, appealable order. Jarrett holds that there are three types of final orders to be reviewed upon appeal: (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.

We believe that a workers' compensation case remanded by a review panel falls in the second category: an order affecting a substantial right made during a special proceeding. Jarrett provides the necessary definition:

A "special proceeding" occurs when the law has conferred a right and has authorized an application to the court to enforce that right. Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952). Further, this court has construed the phrase "special proceeding" to mean every civil statutory remedy which is not encompassed in chapter 25 of the Nebraska Revised Statutes.

244 Neb. at 313-14, 506 N.W.2d at 685.

Jarrett further points out that the inquiry does not end with the determination that an order arose during a special proceeding; a substantial right still must be affected. A workers' compensation action, as provided for in chapter 48 of the Nebraska Revised Statutes, is a special proceeding. Jarrett held that an order which vacated a dismissal destroyed the defense which was previously available to the appealing party, and thus the order affected a substantial right.

The same is true here, as the order of the review panel destroyed the dismissal Lincoln Telephone had obtained from the trial judge, which obviously was to its advantage. Accordingly, a substantial right has been affected. We hold that an order of a workers' compensation review panel which vacates a trial judge's dismissal and remands the case for trial is a final, appealable order.

FACTUAL BACKGROUND

Pearson began working for Lincoln Telephone in 1972 in the construction department. He was part of a crew involved in the burying of telephone cable, which consists of digging a trench, laying cable, and covering the trench. A three-person crew does the work: one operates the trencher, one operates the truck carrying the reels of cable, and one walks behind the trencher and feeds the cable through it. Pearson worked in the construction department laying cable for approximately 5 or 6 years, and then went to the combination services department, where he worked until 1986. He then returned to the construction department as a group leader of a three-person cable-laying crew.

The trencher is apparently a noisy machine. The testimony from Pearson was that it is so loud that the operator, who sits atop the machine, and the person working behind it cannot communicate except by hand signals or yelling into each other's faces. Lincoln Telephone offered evidence that the noise level 10 feet from the machine when the digger was operating was 95 decibels and that under the Occupational Safety and Health Act standards, a worker could be exposed to such noise for 4 hours without violation. The worker who operated the machine from a position on top of it would be exposed to 102 decibels, but Pearson's position was most often on the ground behind the machine or occasionally with the cable reel truck.

In September 1991, Pearson went to Dr. Tim Fischer for a physical examination in order to get his commercial driver's license. Pearson could not pass this examination unless outfitted with a hearing aid, because he was found to have hearing loss. Prior to this diagnosis, Pearson felt he was noticing some problems with his hearing, such as missing parts of conversations. He testified it had been 3 or 4 years since he first noticed a problem with his hearing, and he thought it was gradually getting worse. Pearson also testified with respect to other nonwork noise exposures. He served in the Marine Corps in Vietnam and was exposed to some artillery fire, although he was not part of a guncrew. In addition, he testified he also does some hunting.

An audiologist reported that Pearson had a sensorineural hearing loss, commonly called nerve deafness. Dr. Trent Quinlan, an otolaryngologist, opined that Pearson's test revealed a speech reception threshold in the right ear of 45 decibels with an 84-percent speech discrimination score, and in the left ear, a speech reception threshold of 40 decibels with an 80-percent speech discrimination score, which, according to Dr. Quinlan, would place Pearson "at the margin of comfortable listening or below in typical social situations." Using the American Medical Association's formula for determination of hearing handicap, Dr. Quinlan stated that Pearson's handicap was 34.9 percent, which did not take into account his speech discrimination scores.

TRIAL COURT ORDER

The trial court dismissed the petition, concluding that the medical evidence "does not provide the Court with sufficient specificity as to the amount of hearing loss, if any, plaintiff sustained as a result of his exposure to noise in the employment of the defendant and his petition must therefore be dismissed."

REVIEW PANEL DECISION

We conclude that Judge Vrana was clearly wrong in light of the evidence he otherwise cites in the order of dismissal including the percentage loss of hearing suffered by plaintiff and the doctor's statement that plaintiff's "significant noise exposure for over six years has played a significant role in exacerbating these changes."

With this comment, the review panel vacated the trial judge's dismissal and remanded the matter to a "trial judge" for "further determination."

ASSIGNMENTS OF ERROR

First, Lincoln Telephone claims that the review panel of the compensation court erred in failing to conclude that the hearing loss injury was not compensable because there was no identifiable event wherein Pearson's symptoms manifested themselves and within a reasonable period of time thereafter required medical attention and prevented Pearson from continuing his work. Second, Lincoln Telephone maintains that there was ample evidence supporting the trial judge's order of dismissal and that therefore it cannot be found to be "clearly wrong" by the review pane...