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Merrill v. Griswold's2/8/2005
ths. Given the conflicting evidence, the trial court clearly chose to believe Merrill's testimony. As the sole trier of fact, the compensation court is the sole judge of the credibility of the medical evidence and the weight to be given to it. Weichel v. Store Kraft Mfg. Co., 10 Neb. App. 276, 634 N.W.2d 276 (2001). We will not overturn the trial court's findings in those regards.
Griswold's also contends that the court erred in finding that Merrill injured his back in a second work-related accident on October 6, 2000. Griswold's points to Merrill's testimony at trial in which Merrill could not recall hurting his back at work in October 2000. In contrast, in conjunction with his visit to Messer on October 24, Merrill completed a questionnaire in which he noted the date of his injury as October 6. Messer stated that the history given to him by Merrill was consistent with an October 6 injury because at that visit, Merrill told him that he had been having back pain, with additional pain in his leg, for almost 3 weeks.
Where a witness makes contradictory statements, the question of what the facts really were is for the jury. Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997); Mendoza v. Pepsi Cola Bottling Co., 8 Neb. App. 778, 603 N.W.2d 156 (1999). Self-contradicting testimony presents a question to be resolved by the trier of fact. Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995); Mendoza v. Pepsi Cola Bottling Co., supra. Clearly, the trial court resolved this contradiction in favor of Merrill, and we conclude that the trial court was not clearly wrong in finding that Merrill sustained an injury on October 6, 2000.
Deferred Issues
On appeal, Griswold's contends that the court erred in deferring the issues of permanency and the issue of vocational rehabilitation upon Merrill's request. The court did so over the objection of Griswold's and the statement by Griswold's that the postponement would prejudice Griswold's.
In granting Merrill's request that he be allowed additional time to gather evidence on whether he sustained permanent impairment as the result of his injuries, the court stated:
On February 4, 2003 Dr. Messer writes that [Merrill] reached which did not give [Merrill] time to obtain an impairment rating and request a determination of loss of earning power. This is made more difficult because until [Merrill] obtains a ruling on whether or not [Merrill] is entitled to benefits for one or both surgeries, a loss of earning power report could not be prepared. Cost is also a factor.
The court stated that pursuant to its order, Merrill was to request an impairment rating; 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 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 argues that the court erred in allowing Merrill additional time to obtain an impairment rating. In support of its position, Griswold's cites the proposition that upon a determination that an employee has reached MMI, absent a valid reason for not making such a determination, the trial court is obligated to make a determination as to the employee's loss of earning power. Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998); Weichel v. Store Kraft Mfg. Co., 10 Neb. App. 276, 634 N.W.2d 276 (2001).
The trial court did not make a determination as to Merrill's loss of earning c
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