Roan Eagle v. State

• Decision Date: 25 April 1991
• Docket Number: No. 90-459,90-459
• Citation: 468 N.W.2d 382,237 Neb. 961
• Parties: James ROAN EAGLE, Appellee, v. STATE of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 382

468 N.W.2d 382

237 Neb. 961

James ROAN EAGLE, Appellee, v. STATE of Nebraska, Appellant.

No. 90-459.

Supreme Court of Nebraska.

April 25, 1991.

Syllabus by the Court

1. Workers' Compensation. 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.

2. Workers' Compensation: Appeal and Error. In considering whether evidence sustains a finding for an award or dismissal by the Nebraska Workers' Compensation Court on rehearing, an appellate court does not reweigh evidence, but considers the compensation court's award or dismissal in a light most favorable to the successful party and resolves evidential conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

3. Workers' Compensation: Proof. For an award based on disability, a claimant must establish, by a preponderance of the evidence, that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act.

4. Workers' Compensation: Proof. An employee has the burden to show the cause-and-effect relationship involving employment, an industrial injury, and disability.

5. Workers' Compensation. An employee who is injured to the extent that the employee cannot perform services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for the services is nonexistent may be classified as totally disabled.

6. Workers' Compensation. Whether an injured employee has reached maximum physical recovery after medical treatment is, generally, a factual question for the Workers' Compensation Court.

7. Workers' Compensation. Whether a claimant has sustained disability which is total or partial and which is temporary or permanent is a question of fact.

8. Limitations of Actions: Proof. A defendant alleging the statute of limitations as an affirmative defense has the burden to prove such defense.

9. Workers' Compensation. As a general rule, an employee may recover compensation for a new injury, or aggravation of an injury, which results from medical or surgical treatment of the employee's compensable injury if an intervening independent cause does not break the chain of causation between the employee's original injury and the new or aggravated injury.

Robert M. Spire, Atty. Gen., and Douglas J. Peterson, Lincoln, for appellant.

Leonard G. Tabor, Gering, for appellee.

Before HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

The State of Nebraska appeals from an award on rehearing by the Nebraska Workers' Compensation Court in favor of James Roan Eagle. We affirm.

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. [Citations omitted.] 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. [Citations omitted.] Factual determinations by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous. Regarding facts determined and findings made after rehearing in the Workers' Compensation Court, § 48-185 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. [Citations omitted.] 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."

Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 460-61, 461 N.W.2d 565, 568 (1990). Accord, Fees v. Rivett Lumber Co., 228 Neb. 617, 423 N.W.2d 483 (1988); Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987). See, also, Neb.Rev.Stat. § 48-185 (Reissue 1988).

In considering whether evidence sustains a finding for an award or dismissal by the Nebraska Workers' Compensation Court on rehearing, an appellate court does not reweigh evidence, but considers the compensation court's award or dismissal in a light most favorable to the successful party and resolves evidential conflicts

in favor of the successful party, [237 Neb. 963] who is entitled to every reasonable inference deducible from the evidence. Cf. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987).

BACKGROUND FOR ROAN EAGLE'S ACCIDENT

Before the accident, the Game and Parks Commission of the State of Nebraska had employed Roan Eagle for 4 years as a wrangler at the Fort Robinson State Park near Crawford, Nebraska. A wrangler is a cowboy in charge of saddle horses. In addition to wrangling, Roan Eagle's duties included taking "tourists out on trail rides, horse back out in the hills," tours which might last for several hours.

On June 26, 1986, Roan Eagle, on horseback, was accompanying a dozen tourist trail riders in the hills near Fort Robinson, when Roan Eagle's horse "spooked and started bucking." Roan Eagle was thrown from his horse, struck the ground, and sustained injury to his right leg, which injury produced pain in the "middle of [his] hip."

Another wrangler rode ahead to Fort Robinson. On Roan Eagle's arrival at the fort, he was transported by rescue unit to the Crawford hospital and then to the hospital at Alliance, Nebraska, for orthopedic attention.

ROAN EAGLE'S INJURY

Dr. Chris Wilkinson, an orthopedist, attended Roan Eagle and diagnosed the injury as "a closed proximal femoral fracture which is basically an intertrochanteric subtrochanteric comminuted fracture." The femur, or thigh bone, transmits weight of a person's trunk from the hip to the lower extremities and is comprised of the femoral head, neck, two processes or prominences called the greater trochanter and lesser trochanter, and a shaft. The femoral head is smooth and globular, forming more than half a sphere, and fits into and articulates with the acetabulum, a cup-shaped formation of the hip bone, to form a ball-and-socket joint. The femur's neck lies between the femoral head and shaft. The greater trochanter is located laterally at the base of the femoral neck and slightly above the lesser trochanter on the nearly opposite side of the shaft.

On June 27, Dr. Wilkinson surgically reduced the somewhat transverse or oblique fracture of the shaft in Roan Eagle's right femur, a fracture which was located just below the femoral neck between the trochanters. After aligning the femoral fragments, Dr. Wilkinson secured the reduction by laterally countersinking two "cortical screws" in the femur's shaft, one above and the other below the fracture. Over the cortical screws, Dr. Wilkinson laid a contoured six-hole metal plate against the femur, drilled six holes into the shaft, and inserted cortical screws through the plate into the shaft, with three screws above and three screws below the fracture. A 3 3/4-inch "lag screw" was then implanted into the femur's head and by a compression screw was tightened to extend through the femoral head and neck into the femur's shaft at the fracture site.

Roan Eagle was then transferred to the Crawford hospital and eventually returned to his home. For the remainder of 1986, Roan Eagle made monthly trips to Chadron for postoperative checkups by Dr. Wilkinson. In the course of those visits, Dr. Wilkinson noted that Roan Eagle's pain persisted in the right hip, and "fluoroscoped the hip to see if it was possible to see any position in which the leg [sic] screw protruded from the head into the joint. I could not tell on any angle or amount of rotation" that the screw had protruded into the hip joint. Roan Eagle's pain continued virtually unchanged until December 1986 when Dr. Wilkinson, without further "radiographs," rendered the assessment that Roan Eagle was "doing well as far as I can tell," although Roan Eagle had not returned to work at that time. Since Roan Eagle's hip was apparently mending, Dr. Wilkinson expressed the opinion that "it'll be a year before he is really back to normal and possibly as long as two years before he has his strength built up and can resume unlimited activities." Dr. Wilkinson recommended On one of Roan Eagle's visits in the forepart of 1987, Dr. Wilkinson told Roan Eagle that he was "pretty good" and decided to leave the metal implant in Roan Eagle's femur, but suggested that Roan Eagle not do any heavy lifting. It was not until June 1988 that Roan Eagle returned to work for the State, this time as an operator of a power lawnmower, but, on account of pain from getting on and off the mower, was unable to continue this employment. His hip started "hurting [him] more" in the last part of 1988. At that point Roan Eagle found that he was unable to walk for any appreciable distance and that his hip pain was increasing, necessitating Roan Eagle's use of a wheelchair or cane for locomotion. Roan Eagle filed his action in the Nebraska Workers' Compensation Court on June 26, 1989.

that Roan Eagle "not lift anything and carry only light objects."

Roan Eagle then returned to Dr. Wilkinson on July 25, 1989. Dr. Wilkinson reviewed Roan Eagle's orthopedic history and noted that Roan Eagle had been unable to return to work. Also, Dr. Wilkinson concluded that, throughout his previous treatment of Roan Eagle, "[a]t no point ... could the lag screw head be demonstrated to impinge onto the joint." During his further examination of Roan Eagle on the July 1989 visit, Dr. Wilkinson observed "some motion about the lag screw," but was unable to determine the exact extent of the lag screw's movement in the femoral head. At that point, Dr. Wilkinson became disturbed on account of Roan Eagle's...