NE Code § 48-185 (2021)
2021 Nebraska Revised Statutes|Chapter 48 - Labor|48-185 - Appeal; procedure; judgment by Nebraska Workers' Compensation Court; effect; grounds for modification or reversal.

48-185.  Appeal; procedure; judgment by Nebraska Workers' Compensation Court; effect; grounds for modification or reversal.Any appeal from the judgment of the Nebraska Workers' Compensation Court shall be prosecuted and the procedure, including the designation of parties, handling of costs and the amounts thereof, filing of briefs, certifying the opinion of the Supreme Court or decision of the Court of Appeals to the compensation court, handling of the bill of exceptions, and issuance of the mandate, shall be in accordance with the general laws of the state and procedures regulating appeals in actions at law from the district courts except as otherwise provided in section 48-182 and this section. The proceedings to obtain a reversal, vacation, or modification of judgments, awards, or final orders made by the compensation court shall be by filing in the office of the clerk of the Nebraska Workers' Compensation Court, within thirty days after the entry of such judgment, decree, or final order, a notice of appeal signed by the appellant or his or her attorney of record. No motion for a new trial shall be filed. An appeal shall be deemed perfected and the appellate court shall have jurisdiction of the cause when such notice of appeal shall have been filed in the office of the clerk of the Nebraska Workers' Compensation Court, and after being so perfected no appeal shall be dismissed without notice, and no step other than the filing of such notice of appeal shall be deemed jurisdictional. The clerk of the Nebraska Workers' Compensation Court shall forthwith forward a certified copy of such notice of appeal to the Clerk of the Supreme Court, whereupon the Clerk of the Supreme Court shall forthwith docket such appeal. Within thirty days after the date of filing of notice of appeal, the clerk of the Nebraska Workers' Compensation Court shall prepare and file with the Clerk of the Supreme Court a transcript certified as a true copy of the proceedings contained therein. The transcript shall contain the judgment, decree, or final order sought to be reversed, vacated, or modified and all pleadings filed with such clerk. Neither the form nor the substance of such transcript shall affect the jurisdiction of the appellate court. Such appeal shall be perfected within thirty days after the entry of judgment by the compensation court, the cause shall be advanced for argument before the appellate court, and the appellate court shall render its judgment and write an opinion, if any, in such cases as speedily as possible. The judgment made by the compensation court shall have the same force and effect as a jury verdict in a civil case. A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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.Source   Laws 1935, c. 57, § 13, p. 195;   C.S.Supp.,1941, § 48-174;   R.S.1943, § 48-185;   Laws 1953, c. 165, § 1, p. 517;   Laws 1957, c. 207, § 1, p. 726;   Laws 1975, LB 187, § 14;   Laws 1986, LB 811, § 115;   Laws 1986, LB 529, § 52;   Laws 1991, LB 732, § 112;   Laws 1992, LB 360, § 24;  Laws 1999, LB 43, § 25;  Laws 2011, LB151, § 13. Annotations  1. Perfecting appeal 2. Review 3. Miscellaneous 1. Perfecting appeal After final judgment, the filing of a motion to withdraw a party's rest is not treated as a motion for a new trial and fails to extend the time for appeal. Battiato v. Falstaff Brewing Corp., 212 Neb. 474, 323 N.W.2d 105 (1982). Appeal may be taken within thirty days from overruling of motion for a new trial. Meester v. Schultz, 151 Neb. 614, 38 N.W.2d 739 (1949). Method of perfecting appeal to Supreme Court, including settling bill of exceptions, is governed by general laws regulating appeals in actions at law. Ratay v. Wylie, 147 Neb. 201, 22 N.W.2d 622 (1946). Appeal to Supreme Court from district court is governed by general laws regulating appeals except the appeal must be perfected within thirty days from entry of judgment. Adkisson v. Gamble, 143 Neb. 417, 9 N.W.2d 711 (1943). Upon appeal to Supreme Court in a compensation case, jurisdiction is conferred where transcript is filed within thirty days and bill of exceptions may be filed thereafter in accordance with general law. Fallis v. Vogel, 137 Neb. 598, 290 N.W. 461 (1940). Appeal from district court should be dismissed for lack of jurisdiction, where transcript in compensation case was not filed within thirty days of the entry of the judgment. Dobesh v. Associated Asphalt Contractors, 137 Neb. 1, 288 N.W. 32 (1939). Statutory fees for filing appeal in Supreme Court do not apply to cases under workmen's compensation law. Scott v. Dohrse, 130 Neb. 847, 266 N.W. 709 (1936). 2. Review Under this section, a judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (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. Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020). Pursuant to this section, 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. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020); Moss v. C&A Indus., 25 Neb. App. 877, 915 N.W.2d 615 (2018); Moyers v. International Paper Co., 25 Neb. App. 282, 905 N.W.2d 87 (2017). 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. Hintz v. Farmers Co-op Assn., 297 Neb. 903, 902 N.W.2d 131 (2017); Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995). An appellate court may modify an award of the compensation court when there is not sufficient competent evidence in the record to support the award. Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016). Where there was sufficient evidence to support a factual finding that knee surgery was not required by the prior work-related injury, a three-judge panel of the Workers' Compensation Court did not have grounds under this section to reverse the decision of a single judge of the Workers' Compensation Court denying compensability for the surgery. Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013). An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only upon the grounds set forth in this section. Worline v. ABB/Alstom Power Integrated CE Services, 272 Neb. 797, 725 N.W.2d 148 (2006). Pursuant to this section, 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. Torres v. Aulick Leasing, 258 Neb. 859, 606 N.W.2d 98 (2000); Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999); Crouch v. Goodyear Tire & Rubber Co., 255 Neb. 128, 582 N.W.2d 356 (1998); Owen v. American Hydraulics, Inc., 254 Neb. 685, 578 N.W.2d 57 (1998). This section does not provide for appeal to the Supreme Court or the Court of Appeals without a properly constituted review by the Workers' Compensation Court. Hagelstein v. Swift-Eckrich Div. of ConAgra, 257 Neb. 312, 597 N.W.2d 394 (1999). The findings of fact made by a workers' compensation court trial judge are not to be disturbed upon appeal to a workers' compensation court review panel unless they are clearly wrong on the evidence or the decision was contrary to law. McBee v. Goodyear Tire & Rubber Co., Inc., 255 Neb. 903, 587 N.W.2d 687 (1999). This section precludes an appellate court's substitution of its view of the facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996). In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party. Paulsen v. State, 249 Neb. 112, 541 N.W.2d 636 (1996). This section precludes an appellate court from substituting its view of the facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Surratt v. Watts Trucking, 249 Neb. 35, 541 N.W.2d 41 (1995). Factual determinations made by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous. An appellate court may not substitute its view of the facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994). Findings of fact by the Workers' Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside on appeal where there is evidence sufficient to support them. Willuhn v. Omaha Box Co., 240 Neb. 571, 483 N.W.2d 130 (1992); McGee v. Panhandle Technical Sys., 223 Neb. 56, 387 N.W.2d 709 (1986). Procedural and evidentiary rulings of the Workers' Compensation Court may predicate reversal or modification of the court's order on appeal if the court in so ruling acted without or in excess of its powers. As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony; furthermore, the appellate court will presume the compensation court resolved any conflicts in the evidence in favor of the successful party. Findings of fact by the Workers' Compensation Court have the same force and effect as a jury verdict and will, therefore, not be set aside unless clearly wrong. Hernandez v. Hawkins Construction Co., 240 Neb. 129, 480 N.W.2d 424 (1992). Findings of fact by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside on appeal unless clearly wrong. Cline v. County Seat Lounge, 239 Neb. 42, 473 N.W.2d 404 (1991); Brazee v. City of Lincoln, 234 Neb. 680, 452 N.W.2d 529 (1990); Elliott v. Midlands Animal Products, 229 Neb. 823, 428 N.W.2d 920 (1988); Gilbert v. Sioux City Foundry, 228 Neb. 379, 422 N.W.2d 367 (1988); Knudsen v. Metropolitan Utilities Dist., 220 Neb. 902, 374 N.W.2d 56 (1985); Guerra v. Iowa Beef Processors, Inc., 211 Neb. 433, 318 N.W.2d 887 (1982); White v. Father Flanagan's Boys' Home, 207 Neb. 528, 300 N.W.2d 15 (1980). Under subsection (4) of this section, an order based on findings of fact made by the compensation court may be reversed if those findings do not support the court's order. Clobes v. Nebraska Boxed Beef, 238 Neb. 612, 472 N.W.2d 893 (1991). To determine whether findings of fact made by the compensation court support an order granting or denying vocational rehabilitation benefits, the Supreme Court must consider the findings of fact in light of section 48-162.01. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991). Under subsection (4) of this section, an order based on findings of fact made by the compensation court may be reversed if those findings do not support the court's order. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991). The Workers' Compensation Court's judgment may not be set aside on appeal where there is evidence sufficient to support its judgment. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990); Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815 (1990). Regarding facts determined and findings made after rehearing in the compensation court, this section precludes the Supreme Court's substitution of its view of facts for that of the compensation court if the record contains evidence to substantiate the factual conclusions reached by the compensation court. Gardner v. Beatrice Foods Co., 231 Neb. 464, 436 N.W.2d 542 (1989). The findings of fact of the Nebraska Workers' Compensation Court have the same force and effect as a jury verdict in a civil case and will not be set aside where they are supported by credible evidence and are not clearly wrong. Kalhorn v. City of Bellevue, 227 Neb. 880, 420 N.W.2d 713 (1988). Where the record presents nothing more than conflicting medical testimony, the Supreme Court will not substitute its judgment for that of the Workers' Compensation Court. The nature and number of examinations by a physician are factors affecting credibility of a medical witness and weight to be attached to testimony from such witness. Vredeveld v. Gelco Express, 222 Neb. 363, 383 N.W.2d 780 (1986). The findings of fact made by the Workers' Compensation Court after rehearing will not be set aside unless clearly wrong. Gast v. Continental Can Co., 220 Neb. 456, 370 N.W.2d 172 (1985). Where there is not sufficient competent evidence to support an award, this court must modify, reverse, or set aside the award. Hare v. Watts Trucking Service, 220 Neb. 403, 370 N.W.2d 143 (1985). Under Nebraska law, it is well settled that findings of fact by the Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. Rutt v. Midwest Refuse Service, 220 Neb. 255, 369 N.W.2d 93 (1985); Paris v. J. A. Baldwin Mfg. Co., 216 Neb. 151, 342 N.W.2d 198 (1984); Earnest v. Lutheran Memorial Hospital, 211 Neb. 438, 319 N.W.2d 66 (1982); Shaw v. Gooch Feed Mill Corp., 210 Neb. 17, 312 N.W.2d 682 (1981). The findings of fact made by the Nebraska Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and will not be reversed or set aside unless there is insufficient evidence in the record to warrant the award. Tranmer v. Mass Merchandisers, 218 Neb. 151, 352 N.W.2d 610 (1984). The compensation court's findings of fact after rehearing have the same effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. The decision of the compensation court after rehearing must be considered in the light most favorable to the successful party, and every controverted fact must be decided in its favor. Noah v. Creighton Omaha Health Care Corp., 213 Neb. 169, 328 N.W.2d 203 (1982). The Supreme Court is not at liberty to substitute its views for those of the Workmen's Compensation Court regarding questions of fact if there is evidence in the record to substantiate its conclusions. Thomas v. Kayser-Roth Corp., 211 Neb. 704, 320 N.W.2d 111 (1982). Where there is not sufficient competent evidence in the record to warrant the making of the award, or the findings of fact do not support the award, the award must be modified, reversed, or set aside by the Supreme Court on appeal. A workmen's compensation award cannot be based upon possibility or speculation. Husted v. Peter Kiewit & Sons Constr. Co., 210 Neb. 109, 313 N.W.2d 248 (1981). An award of the Workmen's Compensation Court will be reversed or modified where there is not sufficient evidence in the record to warrant the order, judgment, or award, or the findings of fact do not support the order or award. Akins v. Happy Hour, Inc., 209 Neb. 236, 306 N.W.2d 914 (1981). The final determination of whether there exists a master and servant relationship is an issue of law for this court and not for the trier of fact. Stephens v. Celeryvale Transport, Inc., 205 Neb. 12, 286 N.W.2d 420 (1979). Under the provisions of this section, the findings of fact made by the Nebraska Workmen's Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case. There is no longer any provision in the statutes for de novo review by the Supreme Court of workmen's compensation cases. Herold v. Constructors, Inc., 201 Neb. 697, 271 N.W.2d 542 (1978). In testing sufficiency of evidence to support findings of fact of Workmen's Compensation Court after rehearing, it must be considered in light most favorable to successful party. Salinas v. Cyprus Industrial Minerals Co., 197 Neb. 198, 247 N.W.2d 451 (1976). In workmen's compensation cases, the judgment, order, or award will not be modified on appeal for insufficiency of the evidence, if there is reasonable competent evidence to support the findings of fact upon which it is based. Voycheske v. Osborn, 196 Neb. 510, 244 N.W.2d 74 (1976). The Supreme Court in a workmen's compensation case may set aside the judgment of the district court upon grounds provided by statute only which include "(3) the findings of fact are not supported by the evidence as disclosed by the record." McPhillips v. Knox Constr. Co., Inc., 190 Neb. 306, 208 N.W.2d 261 (1973). In a workmen's compensation proceeding, a district court finding against a party will be set aside if the evidence compels a finding for that party. Adler v. Jerryco Motors, Inc., 187 Neb. 757, 193 N.W.2d 757 (1972). Under this section, unless the district court acted without or in excess of its powers or the judgment, order, or award was procured by fraud, the judgment, order, or award may be modified or set aside only if the findings of fact do not support it. Conn v. ITL, Inc., 187 Neb. 112, 187 N.W.2d 641 (1971). If there is reasonable competent evidence to support findings of fact in trial court's judgment, order or award will not be modified for insufficiency of the evidence. Cause will be considered de novo in the Supreme Court only where the findings of fact are not supported by the evidence as disclosed by the record. Conflicting holdings in Rapp v. Hale, 170 Neb. 620, 103 N.W.2d 851 (1960), overruled. Gifford v. Ag Lime, Sand & Gravel Co., 187 Neb. 57, 187 N.W.2d 285 (1971). Supreme Court may only modify or set aside order of district court on four grounds. Turpin v. State, 135 Neb. 389, 281 N.W. 800 (1938). If award for permanent total disability is not supported by the evidence, it will be set aside. Pillard v. Lincoln Packing Co., 133 Neb. 898, 277 N.W. 587 (1938). Under this section, the judgment made by the compensation court shall have the same force and effect as a jury verdict in a civil case and may be modified, reversed, or set aside only upon the grounds that (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. Coughlin v. County of Colfax, 27 Neb. App. 41, 926 N.W.2d 675 (2019). 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 no 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. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008); McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007); Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006); Shade v. Ayars & Ayars, Inc., 2 Neb. App. 730, 513 N.W.2d 881 (1994). An appellate court may not substitute its view of the facts for that of the Workers' Compensation Court if the record contains sufficient evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. Nerison v. National Fire Ins. Co. of Hartford, 17 Neb. App. 161, 757 N.W.2d 21 (2008). This section precludes an appellate court's substitution of its view of the facts for that of the Workers' Compensation Court if the record contains sufficient evidence to substantiate the factual conclusions reached by the Workers' Compensation Court. Godsey v. Casey's General Stores, 15 Neb. App. 854, 738 N.W.2d 863 (2007). In determining whether to affirm, modify, reverse, or set aside a judgment of a Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing. Mendoza v. Pepsi Cola Bottling Co., 8 Neb. App. 778, 603 N.W.2d 156 (1999). In an appeal from a review where the panel affirms the order of the trial judge, the higher appellate court may still modify, revise, or set aside the order of the review panel if the panel was clearly wrong in failing to find that (1) the trial judge acted without or in excess of his or her 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 trial judge do not support the order or award. Fordham v. West Lumber Co., 2 Neb. App. 716, 513 N.W.2d 52 (1994). If a Workers' Compensation Court review panel makes different findings of fact from those of the trial judge when there is evidence in the record before the trial judge to support the judge's findings, then the review panel has acted in excess of its powers. Pearson v. Lincoln Telephone Co., 2 Neb. App. 703, 513 N.W.2d 361 (1994). 3. Miscellaneous Sufficient evidence supported the Workers' Compensation Court's finding that a workers' compensation claimant's mental illness arose out of a compensable workplace injury sustained during an assault by a patient at the hospital where claimant worked as a nurse and the aggravation of that injury in two further workplace assaults. The claimant was consistently employed for over 15 years before the first assault without significant or relevant physical or mental incident, during which time she worked, was married, and had a family, and the claimant required extensive treatment after the three assaults, including electroconvulsive therapy. Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015). A direct appeal to the Supreme Court from the order of a single judge of the Workers' Compensation Court is not authorized. Schmidt v. Shoftstall Alfalfa, 239 Neb. 248, 475 N.W.2d 523 (1991). An award of vocational rehabilitation benefits must be supported by evidence which shows the workman is unable to perform work for which he has previous training and experience. Bender v. Norfolk Iron & Metal Co., 224 Neb. 706, 400 N.W.2d 859 (1987). A good-faith conflict due to self-contradiction of an expert's opinions presents a question to be resolved by the trier of fact. Vredeveld v. Gelco Express, 222 Neb. 363, 383 N.W.2d 780 (1986). Workmen's Compensation Court denial of benefits, to applicant with blood alcohol content of .175 percent when injured, affirmed. Sandage v. Adolf's Roofing, Inc., 198 Neb. 539, 254 N.W.2d 77 (1977). A compensable injury to the ball and socket of the hip joint, where the residual impairment is not limited to the leg, is not a schedule injury under section 48-121, subdivision (3), but a disability under subdivision (1) or (2) relating to earning capacity and employability. Jeffers v. Pappas Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977). An accidental injury sustained by an employee on premises where employed, occurring during lunch period while employee is going to or coming from work, is an injury arising out of and in the course of employment. Buck v. Iowa Beef Processors, Inc., 198 Neb. 125, 251 N.W.2d 875 (1977). Disability under this act refers to employability and earning capacity rather than loss of bodily functions. Johnson v. Village of Winnebago, 197 Neb. 845, 251 N.W.2d 176 (1977). Compensation court disability award reversed where claimant suffered no objective injuries and only medical evidence negated disability assertion. Evans v. Gear Drilling Co., 197 Neb. 841, 251 N.W.2d 173 (1977). Filing of transcript on appeal to Supreme Court was duty of clerk of district court. Miller v. Peterson, 165 Neb. 344, 85 N.W.2d 700 (1957). Powers of district judge may be exercised at chambers. Mueller v. Keeley, 163 Neb. 613, 80 N.W.2d 707 (1957). Hearsay evidence admitted without objection may sustain a finding of fact in compensation case. Maul v. Iowa-Nebraska Light & Power Co., 137 Neb. 128, 288 N.W. 532 (1939).