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Nebraska Supreme Court Advance S

297 Nebraska Report

HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

Ian T. Hintz, appellant, v. Farmers Coop

Association, appe

___ N.W.2d ___

Filed September 29, 2017. No. S-16-267.

1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. 

Stat. § 48-185 (Cum. Supp. 2016), 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 do not support the order or award.

2. ____: ____. Findings of fact made by the Workers’ Compensation Court 

have the same force and effect as a jury verdict and will not be set aside 

unless clearly erroneous.

3. Workers’ Compensation: Evidence: Appeal and Error. 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.

4. Workers’ Compensation. The Nebraska Workers’ Compensation Act 

provides that when an employee suffers personal injury caused by accident or occupational disease, arising out of and in the course of his or 

her employment, such employee shall receive compensation from his or 

her employer if the employee was not willfully negligent at the time of 

receiving such injury.

5. Workers’ Compensation: Proof. In order to recover under the Nebraska 

Workers’ Compensation Act, a claimant has the burden of proving by a 

preponderance of the evidence that an accident or occupational disease 

arising out of and occurring in the course of employment proximately 

caused an injury which resulted in disability compensable under the act.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/03/2017 12:12 AM CDT
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

6. Workers’ Compensation: Expert Witnesses. If the nature and effect 

of a claimant’s injury are not plainly apparent, then the claimant must 

provide expert medical testimony showing a causal connection between 

the injury and the claimed disability.

7. Expert Witnesses. Triers of fact are not required to take the opinions of 

experts as binding on them.

8. Workers’ Compensation: Expert Witnesses. It is the role of the 

Nebraska Workers’ Compensation Court as the trier of fact to determine 

which, if any, expert witnesses to believe.

9. Workers’ Compensation: Appeal and Error. Where the record presents nothing more than conflicting medical testimony, an appellate court 

will not substitute its judgment for that of the Workers’ Compensation 

Court.

10. Evidence: Words and Phrases. “Competent evidence” is defined as 

that which is admissible and relevant on the point in issue or, stated 

another way, admissible and tending to establish a fact in issue.

11. Expert Witnesses. When the subject matter is wholly scientific or so far 

removed from the usual and ordinary experience of the average man that 

expert knowledge is essential to the formation of an intelligent opinion, 

only an expert can competently give opinion evidence as to the cause of 

the physical condition.

12. Trial: Witnesses. The question as to the competency of a witness must 

be initially determined by the trial court.

13. ____: ____. The credibility and weight of the testimony to be given to a 

witness are for the trier of fact to determine.

14. Expert Witnesses: Physicians and Surgeons. For purposes of determining whether a medical expert’s testimony is admissible, it is acceptable, in arriving at a diagnosis, for a physician to rely on examinations 

and tests performed by other medical practitioners.

Petition for further review from the Court of Appeals, Inbod

and Pirtle, Judges, and McCormack, Retired Justice, on ap

thereto from the Workers’ Compensation Court, Thomas E

Stine, Judge. Judgment of Court of Appeals reversed, a

cause remanded with direction.

Thomas R. Lamb and Richard W. Tast, Jr., of Anderson, 

Creager & Wittstruck, P.C., L.L.O., for appellant.

Jason A. Kidd, of Engles, Ketcham, Olson & Keith, P.C., 

for appellee.
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297 Nebraska Report

HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

Heavican, C.J., Wright, Miller-Lerman, Cass

Kelch, and Funke, 

Funke, J

The issues in this litigation were the nature and extent of 

a work-related injury sustained by Ian T. Hintz, an employee 

of Farmers Cooperative Association (Farmers). The Nebraska 

Workers’ Compensation Court found that Hintz’ work-related 

injury was fully resolved within 3 days of the work accident 

and that Hintz’ need for additional medical treatment was the 

result of a non-work-related injury. Upon appeal, the Nebraska 

Court of Appeals reversed the decision and remanded the 

cause with directions for the court to reconsider the claim 

in light of competent medical opinion of causation and considering the beneficent purpose of the Nebraska Workers’ 

Compensation Act.1

We hold that there was sufficient competent evidence in the 

record to support the Workers’ Compensation Court’s determination that Hintz’ work-related injury was fully resolved prior 

to his fall on December 4, 2014. Therefore, we reverse the 

holding of the Court of Appeals.

BACKGROUND

On Thursday, November 13, 2014, Hintz was employed by 

Farmers as a tire technician and was repairing a semitrailer 

tire, when the tire exploded. At the time of the explosion, Hintz 

was kneeling directly in front of the tire. As a result of the 

explosion, Hintz was thrown approximately 10 feet and landed 

on his back. He could not feel his legs, had pain in his groin 

and hips, and heard “a whistling” in his ears. Within a few 

minutes, Hintz was able to get up and walk, but he had limited 

use of his right leg.

Due to the pain Hintz was experiencing, he left work 

immediately after the explosion and did not return until the 

1 Hintz v. Farmers Co-op. Assn., 24 Neb. App. 561, 891 N.W.2d 716 (2017).
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

following Monday. However, Hintz did not seek medical care 

for his injuries in the days immediately following the incident. 

Hintz indicated that upon returning to work, he was able to 

work only “a little” at that time.

To the contrary, Farmers offered evidence which suggested 

that in the days and weeks after Hintz returned to work, he 

was able to complete all of his job requirements. Such evidence included Hintz’ payroll records and the testimony of his 

coworkers that Hintz resumed his normal job duties without 

any notable problems.

On December 4, 2014, while walking up a set of stairs at 

home, Hintz tripped and fell, hitting his hip. Hintz sought 

medical treatment the next day with Dr. James Gallentine, an 

orthopedic doctor. Hintz told Gallentine that he was suffering 

from pain in his right leg which began the night before, when 

he tripped on his stairs and hit his right hip and knee. Hintz 

also told Gallentine about the November 13 incident at work; 

however, he said that since that incident, he had returned to 

work and “was jumping on and off trucks without any difficulty.” Based upon his evaluation, Gallentine prescribed pain 

medication for Hintz and told him not to return to work for a 

few days.

The pain in Hintz’ right hip and leg did not resolve, and 

as a result, Gallentine ordered an MRI, which revealed that 

Hintz was suffering from a “superior labral tear and also some 

irregularity in the posterior labrum with a possible paralabral 

cyst forming.” Gallentine referred Hintz to Dr. Justin Harris, 

an orthopedic doctor, “for a possible hip arthroscopy” and 

directed Hintz to remain off work until further notice. Hintz 

then completed an application for short-term disability benefits 

from Farmers. On the application, Hintz indicated that he was 

temporarily, totally disabled and that his condition was not 

related to his occupation.

On December 30, 2014, Harris examined Hintz. In his 

examination notes, Harris indicated that Hintz had been experiencing pain in his right hip since December 4, when he 
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

“tripped going up stairs.” Harris’ notes did not mention the 

November 13 work incident.

On February 25, 2015, Harris performed surgery on Hintz 

to repair the injuries to his hip. The surgical procedures performed included a right hip arthroscopy and labral repair. 

Harris directed Hintz to remain off work until at least his next 

scheduled appointment, 6 weeks postsurgery.

After the surgery, Hintz participated in physical therapy. He 

continued to complain of pain in his right hip and leg and, as 

a result, was prescribed pain medication. Hintz did not report 

any notable improvements to his condition.

Farmers terminated Hintz in March 2015 because he had not 

been to work since December 4, 2014. Within days of being 

fired, Hintz attended an appointment with Harris, at which 

time he told Harris that his hip injury was caused by a “tire 

[blowing] up on him two weeks prior to . . . seeking medical care.”

On April 21, 2015, Hintz filed his petition with the Workers’ 

Compensation Court, in which he alleged that he had sustained 

personal injury in an accident arising out of and in the course 

of his employment on or about November 13, 2014, and that as 

a result, he was entitled to disability benefits.

On May 7, 2015, Farmers answered Hintz’ petition, denying 

most of Hintz’ assertions. In addition, Farmers affirmatively 

alleged that any injury or disability Hintz was suffering from 

was not caused by a “work-related accident.”

On May 18, 2015, Harris authored a letter to Hintz’ counsel, 

discussing Hintz’ injury to his right hip and the cause of that 

injury. Harris stated:

I understand that causation is an issue in this case. 

When the patient initially presented to me on December 

30, 2014, the history that was entered into our notes 

states that the patient had tripped up his stairs on 

December 4 . . . . The work injury was not documented 

at that time.

. . . .
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

As I have had the opportunity to discuss the case with 

[Hintz] since our initial visit, he makes it very clear to 

me that his symptoms all started with his work injury 

and that he was basically trying to deal with these on his 

own in order to keep working until the symptoms became 

unrelenting in December.

Unfortunately, the documentation that we have in 

our notes does not necessarily corroborate what [Hintz] 

is currently stating. It should be noted, however, that 

the labral tear that we found at surgery was relatively 

severe and the mechanism of injury seems much more 

likely to be a high energy work injury as opposed to 

simply falling up the steps in order to create this type of 

labral tear.

On that same day, Gallentine also authored a letter to Hintz’ 

counsel, discussing the cause of Hintz’ injury. Gallentine 

stated:

It is very difficult to specifically assign causation to one 

event versus the other in the case of . . . Hintz. An individual could certainly have hip related pain and labral 

pathology from the injury as reported at work on the 13th

of November. He also could have similar findings from 

a fall as he noted having on December 5 [sic], 2014. I 

do not know that there is any reasonable degree of medical certainty that would specifically assign his injury to 

one event versus the other. I would certainly be willing 

to defer to . . . Harris’ opinion as he did perform a hip 

arthroscopy on . . . Hintz and would have had a more 

direct evaluation of the actual intraarticular pathology 

noted at that time and whether this could be assigned 

more directly to one event or the other.

Dr. Dennis Bozarth, an orthopedic doctor, reviewed Hintz’ 

medical records at the request of Farmers’ counsel and, on 

June 8, 2015, authored a letter concerning the cause of Hintz’ 

injury. In the letter, Bozarth states that although he “can’t 

say to a reasonable degree of medical certainty that the work 
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

event on November 13, 2014 had any factor in [Hintz’] complaints of right hip pain,” he believes that “more likely than 

not, [Hintz’ hip injury] is related to a trip and fall at home.” 

Bozarth concluded:

Therefore after review of the available medical records, 

more likely than not, my opinion is that . . . Hintz did 

have an accident at work where a tire did blow up, injuring his left lower extremity. This did resolve, and he was 

working without restrictions. A new incident occurred on 

November 25 [sic], 2014, causing his right hip to become 

symptomatic.

After a hearing on Hintz’ petition for disability benefits, the 

compensation court entered an order denying Hintz any workers’ compensation benefits. The court noted that both parties 

agreed that Hintz had a work accident on November 13, 2014. 

However, the court found that any injury Hintz suffered as a 

result of the work accident was resolved within 3 days. It further found that Hintz’ right hip injury which required surgery 

was the result of a fall on his stairs at home and not the work 

accident. Hintz appealed.

The Court of Appeals concluded that the trial court erred in 

finding that there was no medical evidence to support Hintz’ 

contention that his injury was caused by the tire explosion 

at Farmers, and as a result, the Court of Appeals reversed 

the decision of the compensation court and remanded the 

cause with directions for the court to reconsider the claim in 

light of competent medical opinion of causation. The appellate court concluded that the finding by the compensation 

court—wherein the court rejected Harris’ opinions because 

they were “based on an inconsistent history given by [Hintz] 

and, therefore, [his] opinions lack a credible foundation”—was 

clearly wrong.

Specifically, the appellate court determined that Harris’ 

opinion was based upon his personal observations of the injury 

during surgery. The court also noted that Gallentine deferred 

to Harris’ opinion, because Harris performed the surgery.
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

The Court of Appeals further determined that Bozarth’s 

opinion was not based on any medical conclusions, but merely 

the review of Hintz’ medical records. Thus, the court concluded that Bozarth’s opinion did not constitute competent 

medical testimony.

ASSIGNMENTS OF ERROR

Hintz did not specifically assign errors in his brief before 

the Court of Appeals, but argued that the compensation court 

erred (1) in finding that there was not a causal relationship 

between his injuries and the November 13, 2014, incident at 

Farmers and (2) in finding that he was not entitled to any disability benefits.

In its petition for further review, Farmers assigns that the 

Court of Appeals erred (1) by misapplying the clear error 

standard of review, in that it did not weigh the evidence in 

the light most favorable to the successful party and substituted 

its judgment for that of the trial court; (2) by holding that the 

opinion of Farmer’s expert witness, Bozarth, was “‘not competent medical testimony’”; (3) by applying the rule of liberal 

construction of the Nebraska Workers’ Compensation Act to 

evidence; and (4) in considering Hintz’ appeal, given Hintz’ 

failure to specifically assign any errors within his brief.

STANDARD OF REVIEW

[1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), 

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 do not support the order 

or award.2

2 Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016).
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

[2,3] Findings of fact made by the Workers’ Compensation 

Court have the same force and effect as a jury verdict and will 

not be set aside unless clearly erroneous.3 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.4

ANALYSIS

This case involves two contradictory factual scenarios: (1) 

whether Hintz fully recovered from the workplace accident and 

was then reinjured at home or (2) whether Hintz continued to 

experience pain from the accident and was then reinjured as 

a result.

[4] The Nebraska Workers’ Compensation Act provides that 

when an employee suffers personal injury caused by accident 

or occupational disease, arising out of and in the course of his 

or her employment, such employee shall receive compensation 

from his or her employer if the employee was not willfully 

negligent at the time of receiving such injury.5

[5] In order to recover under the Nebraska Workers’ 

Compensation Act, a claimant has the burden of proving by a 

preponderance of the evidence that an accident or occupational 

disease arising out of and occurring in the course of employment proximately caused an injury which resulted in disability 

compensable under the act.6

[6-8] If the nature and effect of a claimant’s injury are not 

plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury 

3 See Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).

4 Nichols, supra note 2.

5 Neb. Rev. Stat. § 48-101 (Reissue 2010).

6 Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).
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Cite as 297 Neb. 903

and the claimed disability.7 The rule in this jurisdiction is that 

triers of fact are not required to take the opinions of experts 

as binding on them.8 It is the role of the Nebraska Workers’ 

Compensation Court as the trier of fact to determine which, if 

any, expert witnesses to believe.9

Sufficienc

Here, the compensation court considered the expert medical 

opinions of three orthopedic doctors and noted that there was 

conflicting medical evidence presented concerning the nature 

and extent of Hintz’ injuries. Harris opined that Hintz’ labral 

tear which was found at surgery was relatively severe and that 

the mechanism of injury seemed much more likely to be a 

“high energy work injury” as opposed to simply falling on the 

stairs; Bozarth opined that more likely than not, Hintz’ work 

accident injuring his left lower extremity fully resolved prior 

to his fall at home and that his fall at home caused his right 

hip to become symptomatic; and Gallentine opined that Hintz 

could have suffered his hip injury from either the work-related 

incident or the fall at home.

The compensation court rejected Harris’ opinion, finding it 

not credible that Hintz could have returned to work full duty 

for several weeks with such a severe tear. Noting that “[t]he 

value of an expert witness’ opinion is no stronger than the 

facts upon which it is based,” the trial court rejected Harris’ 

testimony as lacking a “credible foundation,” because it was 

premised upon an “inconsistent history.”

[9] Where the record presents nothing more than conflicting 

medical testimony, this court will not substitute its judgment 

for that of the Workers’ Compensation Court.10

7 Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000).

8 Hamer v. Henry, 215 Neb. 805, 341 N.W.2d 322 (1983).

9 Owen, supra note 7.

10 Nichols, supra note 2.
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

The evidence also showed that Hintz sought no medical 

treatment after the first injury, but immediately sought medical 

treatment after the second injury. Further, upon seeking that 

medical treatment, he repeatedly told his medical care providers that his injury was the result of falling on the stairs. When 

asked whether the injury was work related, he repeatedly said 

it was not. Only after Hintz was terminated from his employment did he begin stating that the injury was the result of the 

tire exploding.

The compensation court found the evidence that Hintz had 

returned to full-duty work and was experiencing no pain from 

the accident was more credible than Hintz’ version that he continued to experience pain from the accident, which pain first 

surfaced weeks later.

Although the version of facts found by the compensation 

court must be accepted on appeal, the Court of Appeals appears 

to have reweighed the evidence by focusing on the opinion of 

Harris and rejecting the opinion of Bozarth. Further, the Court 

of Appeals reweighed the evidence as to the inconsistent statements made by Hintz to both of his doctors, the testimony of 

his coworkers, and the payroll records.

Since there was competent testimony to support the determination that Hintz’ work-related injury fully resolved before 

the injury he sustained at home, the decision of the compensation court was not clearly erroneous, and therefore, the holding 

of the Court of Appeals is reversed.

Effect of Reco

The Court of Appeals also determined that Bozarth’s opinion was not based on any medical conclusions, but merely 

the review of Hintz’ medical records. As a result, the court 

concluded that his opinion did not constitute competent medical testimony.

In doing so, the appellate court stated that “[t]he sufficiency 

of an expert’s opinion is judged in the context of the expert’s 

entire statement” and that “the value of an expert witness’ 
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HINTZ v. FARMERS CO-OP ASSN.

Cite as 297 Neb. 903

opinion is no stronger than the facts upon which it is based”11—

two contentions with which we agree. However, the Court of 

Appeals went on to state that “[b]ecause . . . Bozarth’s opinion 

is not based on any medical conclusions, we conclude that his 

opinion does not constitute competent medical testimony.”12

With this contention we cannot agree.

[10,11] We have defined “competent evidence” to be that 

which is admissible and relevant on the point in issue or, 

stated another way, admissible and tending to establish a 

fact in issue.13 When the subject matter is wholly scientific 

or so far removed from the usual and ordinary experience 

of the average man that expert knowledge is essential to the 

formation of an intelligent opinion, only an expert can competently give opinion evidence as to the cause of the physical 

condition.14

[12,13] The question as to the competency of a witness 

must be initially determined by the trial court.15 However, the 

credibility and weight of the testimony to be given to a witness are for the trier of fact to determine.16

[14] The Court of Appeals misstated our prior jurisprudence 

when it concluded that Bozarth’s expert medical opinion was 

not competent because he merely reviewed Hintz’ medical 

records. To the contrary, we have routinely held that for purposes of determining whether a medical expert’s testimony 

is admissible, it is acceptable, in arriving at a diagnosis, for 

a physician to rely on examinations and tests performed by 

other medical practitioners.17

11 Hintz, supra note 1, 24 Neb. App. at 570, 891 N.W.2d at 723.

12 Id.

13 See Mathes v. City of Omaha, 254 Neb. 269, 576 N.W.2d 181 (1998).

14 Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991).

15 See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).

16 See Nichols, supra note 2.

17 Hynes, supra note 6.
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In the instant case, the Workers’ Compensation Court 

appropriately received into evidence the opinions of both 

Harris and Bozarth as competent medical evidence. The court 

then correctly considered the conflicting opinions and made 

a determination as to the weight and credibility to be given 

each of the opinions. As a result, we disapprove of the Court 

of Appeals’ determination that Bozarth’s opinion was not 

competent.

CONCLUSION

In the case at bar, the facts were in dispute as to whether 

Hintz fully recovered from the workplace accident and was 

then reinjured at home or whether Hintz continued to experience pain from the accident and was then reinjured as a result. 

The extent of Hintz’ injuries was a question of fact to be 

determined by the trier of fact. The Workers’ Compensation 

Court was not clearly wrong in finding that Hintz did not 

meet his burden of proving that his subsequent injury was 

the result of his workplace accident. We reverse the holding 

of the Court of Appeals and remand the cause to the Court of 

Appeals with direction to affirm the decision of the Workers’ 

Compensation Court.

Reversed and remanded with d