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Blodgett-McDeavitt v. University of Nebraska12/7/2004
niversity argues, restated and renumbered, that the trial court erred in (1) finding that Blodgett-McDeavitt suffered a work-related injury, (2) finding that Blodgett-McDeavitt suffered permanent partial disability, (3) awarding Blodgett-McDeavitt vocational rehabilitation, and (4) awarding Blodgett-McDeavitt medical benefits. The University further argues that the review panel erred in reversing the trial court's calculation of Blodgett-McDeavitt's average weekly wage.
IV. ANALYSIS
1. Standard of Review
An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (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 did not support the order or award. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003); Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the trial judge who conducted the original hearing; the findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Dawes, supra; Schwan's Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Dawes, supra; Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).
2. Award of Benefits
(a) Work-Related Injury
The University first argues that the trial court erred in finding that Blodgett-McDeavitt suffered an injury during the course of her employment with the University. Specifically, the University argues that Blodgett-McDeavitt failed to prove she suffered an electric shock from an alternating current, because "the undisputed evidence at trial showed that it was impossible for [Blodgett-McDeavitt] to have been shocked by an alternating current." Brief for appellant at 10. The University asserts its experts testified that after inspecting the source from which Blodgett-McDeavitt claimed she had received an electric shock, they believed there was no possibility that Blodgett-McDeavitt could have received the type of shock she claimed to have received. The University further asserts that the only shock Blodgett-McDeavitt could have received was a static electricity shock, which, according to Blodgett-McDeavitt's own experts, could not have caused the injuries Blodgett-McDeavitt suffered.
However, Blodgett-McDeavitt testified that on September 11, 1997, she had been standing stationary at a co-worker's cubicle for approximately 5 minutes with her finger touching the cubicle's metal frame, when a shock "came through hand." Blodgett-McDeavitt stated:
t felt like a searing pain coming up through my finger. And then it built as it went through my arm and up through my shoulder and then into my head. And there was a stabbing -- a stabbing hot pain in my -- in my head.
Blodgett-McDeavitt also testified that she has experienced static electricity shocks in the past and that she is familiar which such shocks, but that the shock she felt on September 11 was different from a static electricity shock. Blodgett-McDeavitt testified that the shock she received on September 11 was different from a static electricity shock in that " tatic electricity shock is -- is like a -- a snap that -- that hurts the end of t
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