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Arbtin v. Puritan Manufacturing Co.5/17/2005
ss than 37.75 hours. [Arbtin] worked six weeks where he had between 37.75 hours and under 40 hours. [Arbtin] work eleven weeks where he had between 40 and 45 hours and worked seven weeks where he had more than 45 hours. It is reasonable to find that [Arbtin's] ordinary work week is at least 40 hours per week.
We believe that weeks 16 and 23 should be excluded in the computation of [Arbtin's] average weekly wage. When one excludes week 16 the number of hours worked at $11.50 per hour is 683.75 hours. The wages earned during this period of time would be $7,863.12. When week 23 is excluded [Arbtin] worked 344.25 hours at $12.50 per hour. This equals $4,303.12. The total wages for 24 weeks is $12,166.24 which divided by 24 weeks equals $506.93 per week. [Arbtin] is entitled to $337.95 per week for temporary benefits.
Arbtin has timely appealed to this court.
ASSIGNMENTS OF ERROR
Arbtin's assignments of error, restated, can be consolidated into one: The review panel erred when it affirmed the trial court's finding that Arbtin's herniated cervical disk was not a compensable injury that arose out of his work-related accident. Puritan and Columbia cross-appeal, alleging that the review panel erred when it reversed the trial court's award regarding Arbtin's average weekly wage.
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. Williamson v. Werner Enters., 12 Neb. App. 642, 682 N.W.2d 723 (2004).
[2,3] 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.
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 the trial judge who conducted the original hearing. Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004).
ANALYSIS
Compensability of Herniated Cervical Disk Injury.
Arbtin alleges that the review panel erred when it affirmed the trial court's finding that Arbtin's herniated cervical disk was not a result of his work-related accident. 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. Williamson v. Werner Enters., supra. 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 the trial judge who conducted the original hearing. Veatch v. American Tool, supra.
[5,6] It is the role of the Nebraska Workers' Compensation Court as the trier of fact to determine which, if any, expert witnesses to believe. Ludwick v. TriWest Healthcare Alliance, 267 Neb. 887, 678 N.W.2d 517 (2004). Where the record presents nothing more than conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court. Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999).
The instant case presents a clear exa
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