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Merrill v. Griswold's2/8/2005
ty and that he be given additional time to gather evidence on whether he sustained permanent impairment as a result of his injury on October 6, 2000. The court stated that Merrill was to request an impairment rating as of December 26, 2000, since this was the date Merrill reached MMI after his first surgery. The court further stated that if Merrill has an impairment, he should apply for the appointment of a vocational counselor to prepare a loss of earning power report, and that either party could obtain a rebuttal report. The court also stated that if the parties could not agree on Merrill's loss of earnings, either party could apply for a further hearing, and that a further hearing could also be held on Merrill's entitlement to vocational rehabilitation services.
Griswold's appealed, and in an order filed June 9, 2004, the review panel affirmed the trial court's award in all respects. Griswold's now appeals to this court.
ASSIGNMENTS OF ERROR
On appeal, Griswold's contends that the trial court erred in (1) finding that Merrill sustained injuries as a result of work-related accidents in April and October 2000; (2) deferring ruling on permanent benefits, loss of earning capacity, and entitlement to vocational rehabilitation; and (3) failing to make findings complying with Workers' Comp. Ct. R. of Proc. 11 (2002).
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).
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. Id.
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.
ANALYSIS
Work-Related Injuries
On appeal, Griswold's contends that there was insufficient evidence to support the trial court's findings that Merrill sustained two work-related injuries in 2000, one in April and one in October. As to the April injury , Griswold's argues that the trial court should not have awarded Merrill benefits because Merrill could not pinpoint at trial the specific date of his injury and because although Merrill stated that he was working at a specific residence when his injury occurred, the record showed otherwise. Griswold's also points to the fact that when Merrill saw Marsh on April 6, Merrill told Marsh that he had been experiencing back pain for at least 3 months and did not specify a date for his injury.
We point out that at trial, Merrill stated that he could have been confused as to the dates and that although he could not remember the exact date, he injured his back while carpeting steps in late March or early April 2000. Merrill acknowledged that he had had prior back pain but stated that the pain he experienced at the time of this injury was different than any other pain that he had experienced. Merrill denied telling Marsh that he had had back pain for the previous 3 mon
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