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Gann v. Vickers3/15/2005
y pain related. Gold noted that Gann was not treated for depression prior to the 1993 back injury.
After examining the above-identified causation opinions, we conclude, as did the review panel, that Vickers' claim that there were no sufficiently identified causation opinions to substantiate the trial court's findings is inaccurate. Expert testimony in a workers' compensation case must be based on a reasonable degree of medical certainty or a reasonable probability. Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004). However, an expert medical opinion need not be couched in "magic words" such as "reasonable medical certainty" or "reasonable probability." Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003). We conclude that the causation opinions cited by the trial court provided sufficient medical testimony showing a causal connection between Gann's work-related back injury and her psychological disability.
Vickers also essentially argues that the opinions of Davis were more credible than the opinions of Bowman. However, triers of fact are not required to take the opinions of experts as binding upon them. Schneider v. Chavez-Munoz, 9 Neb. App. 579, 616 N.W.2d 46 (2000). The trial court was free to accept or reject the opinions of either Bowman or Davis in whole or in part and was the sole judge of the credibility and weight to be given those opinions. See Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003). If the record contains evidence to substantiate the factual conclusions reached by the single judge in workers' compensation cases, an appellate court is precluded from substituting its view of the facts for that of the compensation court. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003). Because there is evidence in the record to support the trial court's award of benefits for Gann's psychological injury , we decline to substitute our own view of the facts for that of the compensation court. Vickers' assignment of error is without merit.
Failure to Attach Rebuttable Presumption of Correctness
Vickers asserts that the trial court erred in failing to attach a rebuttable presumption of correctness to the opinions of the agreed-upon vocational counselor. Under Neb. Rev. Stat. § 48-162.01(3) (Cum. Supp. 2002), a loss of earning power evaluation performed by a vocational rehabilitation counselor selected by the parties is entitled to a rebuttable presumption of correctness. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002). A rebuttable presumption is generally defined as a presumption that can be overturned upon the showing of sufficient proof. Id. In all cases not otherwise provided for by statute or by the Nebraska Evidence Rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. Frauendorfer v. Lindsay Mfg. Co., supra. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to § 48-162.01(3) is correct. Frauendorfer v. Lindsay Mfg. Co., supra. In determining whether the presumption contained in § 48-162.01(3) has been rebutted, the single judge is required to make factual findings. Frauendorfer v. Lindsay Mfg. Co., supra.
Although the trial court did not explicitly address § 48-162.01(3) in its award, the trial court did make factual findings, stating that " ased upon the opinions of James Rogers Jack Greene [vocational counselors], the testimony of [Gann] which I believe credible and the evidence as a whole, I find [Gann] has
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