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Martinez v. Millard Processing Services and Sentry Claims Service2/18/2003
rance of the evidence that she had experienced a material and substantial change for the worse in her condition, distinct and different from that for which the previous adjudication was made. The dissent from the review panel decision argued that the trial court erred in determining that the plaintiff could return to work as either a scaler or an arranger, disagreed with the trial court's having given Stratman's opinion the presumption of correctness, and asserted that the review panel should remand the cause for the trial court to consider the evidence given that Stratman's opinion had been effectively rebutted.
ASSIGNMENTS OF ERROR
We have arranged the plaintiff's assignments of error in the order we deem most efficient for consideration, excluding the arguments and duplications contained therein. The plaintiff alleges that the trial court erred in (1) finding that there was no material change in the plaintiff's medical condition; (2) failing to find that psychiatric injuries are compensable; (3) failing to appropriately weigh the evidence regarding vocational rehabilitation services in that it gave the presumption of correctness to a report by vocational expert Stratman, which report was not a vocational plan or opinion on loss of earning capacity and which was rebutted; (4) finding that the plaintiff could return to work in the position of scaler or arranger; and (5) finding that Kuhnlein was an orthopedic surgeon and relying on his opinions with regard to a material and substantial change in the plaintiff's medical condition.
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 do not support the order or award. Rodriguez v. Monfort, Inc., 262 Neb. 800, 635 N.W.2d 439 (2001).
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 court that conducted the original hearing; the findings of fact of the trial court will not be disturbed on appeal unless clearly wrong. Id.
Statutory interpretation presents a question of law. Id. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id.
ANALYSIS
The record shows that on January 19, 1999, the plaintiff received an award finding that she had suffered a compensable injury from a work-related accident while employed by Millard Processing on April 25, 1997. In that action, the court found that she had suffered an injury to her left arm and lower back and as a result, had an 11-percent permanent partial disability of the left arm and a 25-percent loss of earning capacity. She was awarded appropriate monetary sums for that injury. The award was appealed by Millard Processing but affirmed.
The original award states that the plaintiff complained of knee pain and sought treatment for it. The trial court specifically found that she suffered only injuries to her left arm and lower back. There is some evidence in the record that the left knee strain became worse; however, evidence of an injury found not to have been caused by the accident could not result in an increase in a previous award. Evidence of injury to the left knee is irrelevant and will not be mentioned again in this opinion.
Neb.
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