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Blodgett-McDeavitt v. University of Nebraska12/7/2004
ology of this difficulty."
We recognize that the above-referenced medical evidence appears to be founded only on Blodgett-McDeavitt's subjective reports that she suffered an electric shock. However, Blodgett-McDeavitt was also examined by Dr. Samuel Mehr, a doctor specializing in nuclear medicine, who reviewed Blodgett-McDeavitt's medical records and administered a positron emission tomography (PET) scan on Blodgett-McDeavitt. Based on the PET scan, Mehr assessed Blodgett-McDeavitt with the following: " etabolic function of the brain is abnormal," "metabolic abnormalities of the brain are consistent with electric shock injury ," " ther etiologies for the metabolic abnormalities of the brain are excluded by the medical record," and "metabolic abnormalities of the brain are a direct result of the electric shock injury sustained September 11, 1997."
The University challenges the reliability of the medical evidence presented by Blodgett-McDeavitt. The University recognizes that the standards for the admissibility of scientific expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), and adopted by the Nebraska Supreme Court in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), do not apply to workers' compensation cases. See Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004). Nonetheless, the University asserts that the Daubert criteria "should be used as a guidepost in determining whether expert testimony is sufficiently reliable to support a finding of causation in a workers' compensation court." Brief for appellant at 20.
The University's position is that while the trial court did not err in admitting the medical evidence presented by Blodgett-McDeavitt, the court did err in relying on the medical evidence. The University essentially seeks to have the standards set forth in Daubert applied in Nebraska workers' compensation cases, despite the ruling in Veatch, by requiring the standards to be met before a court may rely on certain properly admitted evidence. This position would render the ruling in Veatch futile.
The University argues that "the causation opinions from [Blodgett-McDeavitt's] medical experts are inherently unreliable, such that the trial court was clearly wrong in relying on any such evidence." Brief for appellant at 20. The University specifically states that the PET scan conducted by Mehr was "a novel technique or theory that has never been tested or peer reviewed, and is not generally accepted in the scientific community." Id. at 21. However, as the trier of fact, the trial judge of the compensation court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003); Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003). The findings of fact of the trial judge will not be disturbed on appeal unless clearly wrong. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003); Schwan's Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002). Because evidence exists on the record to support the findings of the trial court and the University's arguments challenge only the credibility of Blodgett-McDeavitt's medical evidence, we affirm the findings of medical causation by the trial court.
The review panel stated in its order of affirmance, "Even though the members of the review panel may agree that as trial judges we would have weighed the evidence to the opposite conclusion, we cannot find that [the trial court's] findings of fact were clearly wrong, as evidence existed in the record in support of [the court's] findin
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