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Gann v. Vickers3/15/2005
psychological injury, because Bowman, as an orthopedic surgeon, was unable to provide competent medical testimony regarding such injury; (3) relying on reports from Bowman and Gold, because such reports did not comply with Workers' Comp. Ct. R. of Proc. 10 (2004); (4) finding that Gann was entitled to compensation as a result of her psychological injury; and (5) failing to attach a rebuttable presumption of correctness to the opinions of the agreed-upon vocational counselor.
Vickers also asserts that determining loss of earning capacity without regard to the positive effects of vocational rehabilitation frustrates the purpose of the Nebraska Workers' Compensation Act and results in an unjust double recovery. In setting forth this "assignment of error" or in making arguments relating thereto, Vickers has not identified an error by the review panel or trial court, but, rather, sets out certain policy arguments based upon the "current application of the [Nebraska Workers' Compensation] Act" found in Collins v. General Casualty, 258 Neb. 852, 606 N.W.2d 93 (2000), relied on by the review panel in reference to Vickers' fifth assignment of error as identified above. Brief for appellant at 39. A party waives all errors of the workers' compensation trial judge not specifically assigned to the review panel, and as such, an appellate court cannot consider errors of the trial court which were not assigned to the review panel. Walsh v. City of Omaha, 11 Neb. App. 747, 660 N.W.2d 187 (2003). An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. Scurlocke v. Hansen, 268 Neb. 548, 684 N.W.2d 565 (2004). Because the issue raised in this "assignment of error" was not presented to or passed upon by the trial court, we decline to consider it further.
We have not incorporated into the above-restated assignments of error any of Vickers' original 16 assignments of error that Vickers did not specifically argue in its brief on appeal, and we do not consider any of Vickers' original assignments of error that have not been so incorporated. We remind Vickers for future reference that to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Scurlocke v. Hansen, supra.
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. Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004).
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. Id. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Id.
When testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence. Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003).
If the record in a workers' compensation case presents conflicting medical reports and testimony, an appellate court will not
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