Gomez v. Kenney Deans, Inc.

441 N.W.2d 632, 232 Neb. 646, 1989 Neb. LEXIS 292
CourtNebraska Supreme Court
DecidedJune 23, 1989
Docket88-741
StatusPublished
Cited by7 cases

This text of 441 N.W.2d 632 (Gomez v. Kenney Deans, Inc.) 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
Gomez v. Kenney Deans, Inc., 441 N.W.2d 632, 232 Neb. 646, 1989 Neb. LEXIS 292 (Neb. 1989).

Opinions

[647]*647Per Curiam.

This is an appeal from the order of a three-judge panel of the Workers’ Compensation Court dismissing the plaintiff’s application to amend the court’s award of August 28,1986.

On November 29 and December 8,1983, plaintiff-appellant, Jesse Gomez, suffered injuries to his back as a result of accidents arising out of and in the course of his employment as a laborer by defendant-appellee, Kenney Deans, Inc. The November 29 accident occurred when plaintiff fell through some joists, and the accident of December 8 occurred as he was installing insulation.

In its award on rehearing filed August 28, 1986, the compensation court found that plaintiff was 50 percent temporarily partially disabled and awarded him compensation benefits, medical expenses, and attorney fees. The August 28, 1986, award also provided that plaintiff was entitled to vocational rehabilitation services and that if his disability increased or decreased the parties could petition the court for relief. Neither party appealed the August 1986 award.

On December 21, 1987, plaintiff filed an amended application, alleging that his incapacity had increased “due solely to the injury of Plaintiff because of lack of further rehabilitation to make plaintiff trainable or rehabilitated.” After a single judge of the compensation court dismissed the amended application, plaintiff filed a motion for rehearing before a three-judge panel. On August 2, 1988, the panel entered an order dismissing the amended application.

Plaintiff appeals to this court, contending the panel erred (1) in finding that he failed to prove he suffered an increase in disability and (2) in finding that literacy training education is not a rehabilitative plan under Nebraska law. We affirm.

Plaintiff’s amended application was filed pursuant to Neb. Rev. Stat. § 48-141 (Reissue 1988). That section provides that “at any time after six months from the date of the... award, an application may be made by either party on the ground of increase or decrease of incapacity due solely to the injury____”

Under § 48-141, the applicant for modification must prove by a preponderance of the evidence that the increase in his incapacity was due solely to the injury resulting from the [648]*648original accident. Wilson Concrete Co. v. Rork, 216 Neb. 447, 343 N.W.2d 764 (1984). In proving an increase in incapacity, the applicant must prove by a preponderance of the evidence that “there now exists a material and substantial change for the worse in the applicant’s condition — a change in circumstances that justifies a modification, distinct and different from that for which an adjudication had been previously made.” Id. at 449, 343 N.W.2d at 766.

The record shows that plaintiff participated in an extensive vocational rehabilitation evaluation before the 1986 rehearing. It was determined at that time that plaintiff was functionally illiterate and was not a reasonable candidate for competitive employment. Plaintiff successfully completed an independent living skills training program offered by the Nebraska Division of Rehabilitation Services.

The compensation court’s determination in August 1986 that plaintiff was 50 percent temporarily partially disabled was based on the following findings:

Dr. Nashelsky testified that plaintiff’s prognosis is poor and that he cannot function as a farm or construction laborer. Dr. Odom testified . . . that plaintiff is disabled from heavy duty and that he is limited to some light duty type of situation. Dr. Ogsbury testified that plaintiff was not capable of heavy work____

The 1986 award further states:

XI
It should be noted that we have not made a finding that the plaintiff is permanently disabled. Our conclusion is that for now the plaintiff is partially disabled and that his injuries combined with his limited learning and experience to render him partially disabled to the extent of 50 percent. His wages were $7.35 an hour at the time of the accident and it is not likely that he could now secure a position which would pay much more than the minimum wage. If the plaintiff’s disability increases or decreases and the parties are unable to agree on the extent of increase or decrease they shall be entitled to again petition the Court for relieve [sic] under the provisions of 48-141 R.R.S. 1943.
[649]*649XII
There is a reasonable probability that with appropriate training, rehabilitation or education, the plaintiff may be rehabilitated to the extent that he can signigicantly [sic] increase his earning capacity.

As stated, the 1986 award was not appealed by either party.

At the April 12, 1988, hearing on plaintiff’s amended application, the panel considered the depositions of Dr. Gunther Nashelsky and Dr. Barrie L. Lindenbaum. Dr. Nashelsky testified that he had treated plaintiff for back pain on a regular basis between April 1986 and the time of his deposition in March 1988. It was Dr. Nashelsky’s opinion that plaintiff was physically “very much the same as he was a couple of years ago.” Dr. Nashelsky further testified that over the course of his treatment, plaintiff “didn’t seem to change very much for the better or for the worse” and that plaintiff would be unable to function as a farm or construction laborer.

Dr. Lindenbaum, an orthopedic surgeon, examined plaintiff in February 1986 and again in January 1988. He also expressed the opinion that plaintiff’s medical condition had not changed.

Plaintiff testified in April 1988 that since August 1986, “[t]he pain has increased a little more since the past.”

Findings of fact by the 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 unless clearly wrong. Gloria v. Nebraska Public Power Dist., 231 Neb. 786, 438 N.W.2d 142 (1989); Wilson Concrete Co. v. Rork, supra. In testing the sufficiency of the evidence to support the findings of fact made by the Workers’ Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. Gardner v. Beatrice Foods Co., 231 Neb. 464, 436 N.W.2d 542 (1989); Oham v. Aaron Corp., 222 Neb. 28, 382 N.W.2d 12 (1986).

Defendant contends that the 1986 award should not be modified because the two doctors, one for the plaintiff and one for the defendant, agree that there has been no significant change in plaintiff’s medical condition. Defendant’s contentions are based, in part, on our holding in Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 730, 94 N.W.2d 492, 495 [650]*650(1959), that § 48-141,

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Gomez v. Kenney Deans, Inc.
441 N.W.2d 632 (Nebraska Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
441 N.W.2d 632, 232 Neb. 646, 1989 Neb. LEXIS 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-v-kenney-deans-inc-neb-1989.