Goers v. Bud Irons Excavating

300 N.W.2d 29, 207 Neb. 579, 1980 Neb. LEXIS 1016
CourtNebraska Supreme Court
DecidedDecember 29, 1980
Docket43103
StatusPublished
Cited by4 cases

This text of 300 N.W.2d 29 (Goers v. Bud Irons Excavating) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goers v. Bud Irons Excavating, 300 N.W.2d 29, 207 Neb. 579, 1980 Neb. LEXIS 1016 (Neb. 1980).

Opinions

Clinton, J.

The defendant employer, Bud Irons Excavating (Irons), appeals from an award made to its employee, Donald L. Goers (Goers), by a three-judge panel of the Workmen’s Compensation Court on rehearing.

A brief summary of the background of the case will aid in understanding the issues made by the errors assigned on appeal. In 1973, Goers was employed as a firefighter by the city of Lincoln fire department. He also held a second job as a truckdriver, equipment operator, and laborer for Irons. On January 15, 1973, while working for Irons, he was injured when a large piece of frozen dirt and ice fell from a load, striking his right shoulder, hip, and ankle. He suffered an ankle fracture. He also received severe bruises on the right hip. The ankle healed satisfactorily. During September 1973, the pain in Goers’ hip area increased. A bone cyst in the femur of his right leg was diagnosed. Surgery was performed and an aneurysmal bone cyst excised. The excised area of the femur was packed with bone chips taken from the iliac crest. In November 1973, Goers returned to work as a firefighter and resumed his part-time employment with Irons. The workmen’s compensation carrier for Irons paid medical expenses, hospital bills, and, also, temporary total disability while Goers was off work because of his ankle injury and bone surgery.

In 1978, the cyst again developed. A larger cyst, at the same site as the earlier one, was removed and the bone repaired using the techniques employed in 1973.

In 1979, Goers filed a petition in the Workmen’s Compensation Court. The award from which this appeal was taken resulted.

[581]*581The Workmen’s Compensation Court made the following findings and award: “There are two main questions: First, whether the increased disability and additional hospital and medical expense occurring in 1978 and 1979 are compensable; and second, whether the disability is to the leg or to the body as a whole. On conflicting medical testimony, we find that plaintiff has proved by a preponderance of the evidence that a causal relationship exists between the accident of January 15, 1973, and the subsequent deterioration of plaintiff’s initial injury which occurred five years later in 1978. We further find that plaintiff’s injury is limited to the leg and does not involve the hip joint as such. Consequently, it is compensable as a partial loss of a member and not as a disability to the body as a whole.”

The court made a specific finding on the temporary total disability payments to which Goers was entitled because of time lost in 1973; found that he suffered a 25 percent permanent partial loss of use of the right leg in 1974, and, in 1978, a further 25 percent permanent partial loss of use of that leg; and determined the amounts payable on account of said losses, and allowed credit to the employer for compensation already paid in the sum of $4,301.51. It entered an appropriate order for payment. It further ordered payment of hospital and medical expenses in the sum of $6,587.56, and awarded attorney fees for the rehearing in the sum of $500.

The assignments of error made by Irons on this appeal raise the following issues: (1) Whether the recurrence of the cyst in 1978 was causally related to the 1973 injury; (2) whether the surgeon’s testimony, that the 1978 recurrence was caused by the 1973 injury, should have been excluded because the opinion lacked foundation and his testimony supporting the same was contradictory; (3) if the 1978 recurrence was causally connected to the 1973 injury, did the evidence support the Workmen’s Compensation Court’s [582]*582finding that the injury was to a member, compensable under Neb. Rev. Stat. § 48-121(3) (Reissue 1978), rather than to the body as a whole, compensable under § 48-121(2), in which case the benefits paid for partial disability must be reduced by the number of weeks for which temporary total disability was paid; and (4) whether the Workmen’s Compensation Court erred in making an allowance for attorney fees on rehearing because the employer did obtain a reduction in the amount of medical and hospital expenses allowed.

We sustain the findings of the Workmen’s Compensation Court except on the award of attorney fees on rehearing.

Our review of these findings is governed by Neb. Rev. Stat. § 48-185 (Reissue 1978) which provides, in part: “The findings of fact made by the Nebraska Workmen’s Compensation Court after rehearing shall have the same force and effect as a jury verdict in a civil case. A judgment, order, or award of the Nebraska Workmen’s Compensation Court may be modified, reversed, or set aside only upon the grounds that (1) the 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 court do not support the order or award.” Findings of fact made by the Workmen’s Compensation Court after rehearing will not be set aside unless clearly wrong. In testing the sufficiency of evidence to support factual findings made by the Workmen’s Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor, and he should have the benefit of every inference that can be reasonably drawn therefrom. Scamperino v. Federal Envelope Co., 205 Neb. 508, 288 N.W.2d 477 (1980).

Issues (1) and (2) are interdependent and will be discussed together. The expert testimony indicates that [583]*583the cause of aneurysmal bone cysts is unknown. It further shows that a high percentage of the population have such cysts and, in most cases, they cause no problems, i.e., they are asymptomatic. However, the cysts can begin to grow spontaneously, or growth may result from trauma, causing microfractures and hemorrhaging. Such growth produces pain and destroys normal bone cell structure. Treatment in cases like Goers’ is surgical by curetting the tumor and replacing the destroyed bone with chips, all as previously described in this opinion.

The treating surgeon testified that Goers’ cyst existed before the 1973 accident; in his opinion, that injury damaged the cyst and caused it to activate and begin growing. This causal connection was evidenced by his findings during surgery which disclosed recent local hemorrhaging and blood clots within the cyst. He further gave his opinion that the 1978 recurrence was causally related to the 1973 injury, saying it was directly connected to the early injury and that, except for the 1973 trauma, the cyst would have remained dormant. He based this opinion, about the causal relationship between the 1973 trauma and the 1978 recurrence, upon his past knowledge and experience. The treating surgeon also testified that it was not possible to tell with certainty that the 1973 surgery excised all the abnormal cells.

In a deposition offered by Irons, another physician, certified in internal medicine, testified that the 1973 trauma neither caused nor aggravated the recurrence of the bone cyst.

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455 N.W.2d 169 (Nebraska Supreme Court, 1990)
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Goers v. Bud Irons Excavating
300 N.W.2d 29 (Nebraska Supreme Court, 1980)

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Bluebook (online)
300 N.W.2d 29, 207 Neb. 579, 1980 Neb. LEXIS 1016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goers-v-bud-irons-excavating-neb-1980.