Scott v. Pepsi Cola Co.
| Decision Date | 29 December 1995 |
| Docket Number | No. S-95-399,S-95-399 |
| Citation | 541 N.W.2d 49,249 Neb. 60 |
| Parties | Todd SCOTT, Appellee, v. PEPSI COLA COMPANY and Lumbermens Mutual Company, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Evidence: Appeal and Error. The workers' compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law.
2. Workers' Compensation: Appeal and Error. A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.
3. Workers' Compensation: Appeal and Error. Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong.
4. Workers' Compensation: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.
5. Appeal and Error. To be considered by an appellate court, a claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party.
6. Workers' Compensation: Notice. A lack of prejudice is not an exception to the requirement of notice under Neb.Rev.Stat. § 48-133 (Reissue 1993).
7. Workers' Compensation: Notice. Knowledge of an employee's injury gained by the employee's foreman, supervisor, or superintendent in a representative capacity for an employer is knowledge imputed to the employer and notice to an employer sufficient for the notice requirement of Neb.Rev.Stat. § 48-133 (Reissue 1993).
8. Workers' Compensation: Notice. Neb.Rev.Stat. § 48-133 (Reissue 1993) contemplates a situation where an employer has notice or knowledge sufficient to lead a reasonable person to conclude that an employee's injury is potentially compensable and that, therefore, the employer should investigate the matter further.
Walter E. Zink, II and Thomas B. Wood, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellants.
Steven H. Howard, of Law Offices of Ronald J. Palagi, P.C., Omaha, for appellee.
Pepsi Cola Company and Lumbermens Mutual Company appeal from an award entered by the Workers' Compensation Court in favor of Todd Scott. The trial court was not persuaded that lack of notice was a defense in the case, and the court opined that Pepsi and Lumbermens were not prejudiced by the delay in the reporting of the injury. The review panel found that Scott had given proper notice under Neb.Rev.Stat. § 48-133 (Reissue 1993). Pepsi and Lumbermens appealed from the order of the review panel, and under the authority granted to us by Neb.Rev.Stat. § 24-1106(3) (Cum.Supp.1994) to regulate the caseloads of the appellate courts of this state, we removed the appeal to this court.
The workers' compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law. Neb.Rev.Stat. § 48-179 (Reissue 1993); Larson v. Hometown Communications, Inc., 248 Neb. 942, 540 N.W.2d 339 (1995).
A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Neb.Rev.Stat. § 48-185 (Reissue 1993); Larson v. Hometown Communications, Inc., supra.
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Id.
An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).
Scott began working for Pepsi as a route driver in October or November 1990. His responsibilities included delivering Pepsi products to restaurants, grocery stores, and convenience stores. He used a truck to make the deliveries, and on an average day, he would make between 50 and 100 stops. At each stop, Scott exited the cab of the truck by stepping down 2 or 2 1/2 feet, usually onto a concrete surface.
Scott began to experience problems with his heels in July 1992. The problems gradually became more severe, and he first saw a doctor on April 2, 1993. At that time, Scott reported to his supervisor, Mike Thiem, that he was experiencing problems with his heels. Although Scott believed that the problems were related to his work at Pepsi, he did not specifically discuss with Thiem whether his problems were work related.
In August 1993, Scott informed Thiem that Scott would need surgery on his heels. Thiem stated that Scott should wait until January to have the surgery, because Thiem did not want to run a route. Scott subsequently had surgery on October 28 and December 9. Following the surgeries, Scott's heel problems began to improve; however, Scott testified that he was not back to the point where he was before the problems occurred. In Scott's current employment as a liquor store manager, there are certain physical tasks that he is unable to perform.
Following a hearing on September 12, 1994, a trial judge of the Workers' Compensation Court found that Scott had suffered a work-related injury and was entitled to benefits. The court found that on or about April 2, 1993, Scott was in the employ of Pepsi as a route driver and that
while so employed and on said date and while engaged in the duties of his employment he suffered injuries to both heels as a result of the cumulative effect of repetitive trauma to his heels which occurred when [Scott] repeatedly jumped down from his truck in the performance of his job duties.
As a part of their defense, Pepsi and Lumbermens alleged that Scott did not give notice as soon as practicable after the happening of his accident. The trial court noted that Scott did not attribute the heel complaints to his employment when reporting them to his supervisor, but found that there was no prejudice to Pepsi and Lumbermens in the delay of the reporting. The court also found that the lack of notice was not a defense in the case.
On appeal, the review panel held that the trial judge did, in essence, find that the notice contemplated by § 48-133 was provided in that Scott advised his supervisor that Scott needed to see a doctor due to his heel condition. The review panel found that the trial court's statement regarding prejudice was irrelevant and harmless. The review
panel affirmed the award of the trial court, holding that the judgment of the trial court was based on findings of fact which were not clearly wrong and that there was no error of law. Pepsi and Lumbermens timely appealed.
Pepsi and Lumbermens assign as error that the trial court erred as a matter of law and was clearly wrong (1) in finding that Scott suffered an accident or injury on April 2, 1993, as a result of the cumulative effect of repetitive trauma to his heels arising out of and in the course of his employment; (2) in finding that there was sufficient expert medical evidence to establish that Scott's injuries were causally related to cumulative trauma; (3) in finding that the...
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