RANDY YOUNG, Plaintiff,
v.
WESTAFF, INC., Defendant.
No. 2292
DOC 203
Nebraska Workers Compensation
August 29, 2007
Scot
Bonnesen, Attorney at Law
James
D. Garriott, Cassem, Tierney, Adams, Gotch & Douglas,
Attorney at Law
ORDER OF AFFIRMANCE ON REVIEW
This
matter came on for a review hearing before the Nebraska
Workers' Compensation Court at Omaha, Douglas County,
Nebraska, on May 1, 2007, on the Application for Review of
the plaintiff filed October 30, 2006, and on defendant’s
cross-appeal, alleging errors in the Order of Dismissal
entered on October 18, 2006, by Judge Michael P. Cavel, and
the briefs and arguments of the parties.
Plaintiff
alleges error in the trial court’s finding that plaintiff
failed to give proper notice of the accident to his employer
pursuant to Neb. Rev. Stat. § 48-133, and in finding that
plaintiff was willfully negligent and this barred plaintiff’s
claim. On cross-appeal, defendant contends that the trial
court committed error in finding that plaintiff "did
sustain injury as a result of an accident, that accident
being an ulceration on the dorsal aspect of his right foot in
the nature of an abrasion caused by the plaintiff’s standing
and walking while wearing steel toed boots while performing
his job duties." (T7).
I.
We
first take up defendant’s cross-appeal. Findings 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 unless clearly wrong. See, Neb. Reb. Stat. § 48-185;
Tranmer v. Mass. Merchandisers, 218 Neb. 151, 352
N.W.2d. 610 (1984). An appellate court may not substitute its
view of the facts for that of a trial judge of the Nebraska
Workers’ Compensation Court if the record contains evidence
to substantiate the factual conclusions reached by the trial
judge. Cannia v. Douglas County, 240 Neb. 382, 481
N.W.2d 917 (1992). In this case, there are differing medical
opinions on causation and it is for the trial judge to decide
which, if any, opinion carries the most persuasive weight.
This review panel cannot reweigh the evidence. This panel...
