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Meredith v. Schwarck Quarries8/9/2005
injured employee is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the employee's mentality and attainments could perform. Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999); Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991). Total disability in the context of the workers' compensation law does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Willuhn v. Omaha Box Co., 240 Neb. 571, 483 N.W.2d 130 (1992). Whether a claimant has sustained disability which is total or partial and which is temporary or permanent is a question of fact. Harmon, supra; Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).
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. Starks v. Cornhusker Packing Co., 254 Neb. 30, 573 N.W.2d 757 (1998). See Harmon, supra.
In the case at bar, the trial court determined on remand that Meredith was permanently totally disabled as of May 13, 2000. The court stated that it based its determination on Meredith's testimony and on Gammel's restrictions as it quoted in its original order. The court found that Meredith is "not . . . able to perform suitable work for which he has previous training or experience." We find that this determination of the trial court is not clearly wrong.
The trial court's original order, referenced in its modified order, noted that Gammel opined:
[Meredith] suffered chronic myofascitis of the cervical spine and an aggravation injury resulting in chronic myofascitis of the lumbar spine due to a work related injury of September 1, 1999, . . . suffered no additional permanent disability because of the aggravation to his lumbar spine, and suffered a 5 percent impairment to the cervical spine as a result of the accident of September 1, 1999.
The trial court also noted in its original order that "[Meredith] testified that he had had some problems with his neck before the injury in this case, but not like that which existed after the accident at [Schwarck's]." The court then specifically found "[Meredith's] testimony to be believable and . . . that the 5 percent impairment represents an impairment to the body as a whole, attributable solely to the accident and injury to [Meredith's] cervical spine on September 1, 1999." While expert witness testimony may be necessary to establish the cause of a claimed injury, the Workers' Compensation Court does not need to depend on expert testimony to determine the degree of disability but instead may rely on the testimony of the claimant. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996). See Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815 (1990).
The trial court stated in its original order that "[Meredith] has prior work experience as a self employed mechanic, rock quarry worker, farmer, woodcutter, and landscaper's helper." The court stated that Gammel had "established restrictions for [Meredith's] neck injury to be no repetitive arm motions, no reaching forward, and no job requiring static or frequent flexing or frequent bending of the neck." The court then found that Meredith would "have significant problems in the future with his cervical spine/neck and related headaches" and that " ith these restrictions, [Meredith] is not a
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