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Martinez v. Millard Processing Services and Sentry Claims Service2/18/2003
rt, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given their testimony and may determine which, if any, of the expert witnesses to believe. Lounnaphanh v. Monfort, Inc., 7 Neb. App. 452, 583 N.W.2d 783 (1998).
The plaintiff's counsel relies upon the evidence from the UNMC pain clinic. That treatment was in a period shortly after the hearing which resulted in the original award; and therefore the evidence from UNMC does not purport to compare her condition at the time of the first trial with that at the time of the hearing on the application. Furthermore, the UNMC evidence does not appear to cover the most significant time period because it covers only the 6 months immediately after the original proceeding. It may be that the evidence would support a finding by the trier of fact that the plaintiff's condition had materially and substantially worsened, a question which we need not and do not decide. However, it is clear that the evidence does not require such a finding as a matter of law, or expressed in other terms, we cannot say that the trial court, in finding that the plaintiff's condition did not materially and substantially worsen, was clearly wrong, which is our standard of review.
The plaintiff alleges that the trial court also erred in handling the opinion evidence of vocational rehabilitation specialists concerning the plaintiff's ability to return to work. Particularly, the plaintiff alleges that the court erred in giving the presumption of correctness to the opinion that concluded the plaintiff could return to work in the position of scaler or arranger. This question would be material to the resolution of this case only if there were a material and substantial change in the plaintiff's condition that would justify a modification of the previous award. The trial court found otherwise, and we have concluded above that the trial court was not clearly wrong in that finding. Therefore, the correctness of the trial court's ruling on this issue is not necessary to the resolution of this appeal. An appellate court is not obligated to engage in an analysis which is not necessary to adjudicate the case and controversy before it. Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994). We will not consider this unnecessary issue.
CONCLUSION
We find that the trial court was not clearly wrong in concluding that the plaintiff had failed to prove by a preponderance of the evidence that she had experienced a material and substantial increase in incapacity following the original award. Therefore, we affirm the decision of the trial court.
Affirmed.
Carlson, Judge, participating on briefs.
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