Tlamka v. Goodyear Tire & Rubber Co.

408 N.W.2d 291, 225 Neb. 789, 1987 Neb. LEXIS 954
CourtNebraska Supreme Court
DecidedJune 26, 1987
DocketNo. 86-689
StatusPublished
Cited by5 cases

This text of 408 N.W.2d 291 (Tlamka v. Goodyear Tire & Rubber Co.) 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
Tlamka v. Goodyear Tire & Rubber Co., 408 N.W.2d 291, 225 Neb. 789, 1987 Neb. LEXIS 954 (Neb. 1987).

Opinion

White, J.

This is an appeal from the Nebraska Workers’ Compensation Court. Goodyear Tire & Rubber Company appeals from the award to Jerry R. Tlamka on rehearing.

Tlamka’s petition in the Nebraska Workers’ Compensation Court was dismissed, after a hearing by a single judge of the court, on the basis that Tlamka failed to show that an accident at work was the cause of the injury at issue or that surgery was necessitated by the accident. On rehearing, a three-judge panel of the Workers’ Compensation Court awarded the appellee $750 in attorney fees, $105.60 in deposition costs, $1,828.58 in [790]*790additional temporary total disability, and $3,696.20 in additional medical expenses. This appeal follows.

Goodyear Tire & Rubber Company alleges as error that the Workers’ Compensation Court incorrectly awarded fees and costs, as there existed a reasonable controversy as to whether the appellee’s injury and subsequent surgery were caused or necessitated by the accident and, therefore, the appellant properly withheld benefits. We affirm.

Neb. Rev. Stat. § 48-125 (Reissue 1984) states in part:

(1) Except as hereinafter provided, all amounts of compensation payable under the provisions of this act shall be payable periodically in accordance with the methods of payment of wages of the employee at the time of the injury or death; Provided, fifty per cent shall be added for waiting time for all delinquent payments after thirty days’ notice has been given of disability. Whenever the employer refuses payment, or when the employer neglects to pay compensation for thirty days after injury, and proceedings are held before the compensation court, a reasonable attorney’s fee shall be allowed the employee by the court in all cases when the employee receives an award. If the employer files an application for a rehearing before the compensation court from an award of a judge of the compensation court and fails to obtain any reduction in the amount of such award, the compensation court shall allow the employee a reasonable attorney’s fee to be taxed as costs against the employer for such rehearing, and the Supreme Court shall in like manner allow the employee a reasonable sum as attorney’s fees for the proceedings in that court. If the employee files an application for a rehearing before the compensation court from an order of a judge of the compensation court denying an award and obtains an award or if the employee files an application for a rehearing before the compensation court from an award of a judge of the compensation court where the amount of compensation due is disputed and obtains an increase in the amount of such award, the compensation court may allow the employee a reasonable attorney’s fee to be taxed as costs against the employer for such [791]*791rehearing, and the Supreme Court may in like manner allow the employee a reasonable sum as attorney’s fees for the proceedings in such court. A reasonable attorney’s fee allowed pursuant to this section shall not affect or diminish the amount of the award.

Tlamka was injured at his place of employment, Goodyear Tire & Rubber Company, when a cure pot blew a gasket, causing the appellee to jerk away and fall. The accident occurred on December 10,1984, and the appellee was off work, due to the injuries he suffered as a result of the accident, for the remainder of 1984 and periodically throughout 1985. Goodyear paid the appellee benefits throughout his recuperation period up and until September 4, 1985, when he underwent surgery to correct thoracic outlet syndrome. Appellee was absent from work until November 17, 1985, recovering from the surgery. During that time he was not paid any benefits.

Appellant does not argue that Tlamka did not meet the requisite level of proof necessary to show that the accident at work caused thoracic outlet syndrome or that the surgery was necessitated by the injury he suffered. Rather, appellant argues that there was a reasonable controversy surrounding the payment of weekly compensation and the costs of the surgery and subsequent recovery time. Therefore, pursuant to § 48-125, the lower court incorrectly awarded attorney fees and costs.

To support its argument, the appellant points to the deposition of Dr. Paul, introduced at the rehearing, to the effect that 50 percent of all thoracic outlet syndrome cases are of uncertain origin and that in many instances the cause is congenital. Appellant fails to note in its argument that both Drs. Paul and Schwab, another physician deposed, agree that Tlamka’s thoracic outlet syndrome was probably caused by the trauma he suffered as a result of his accident in view of his previous medical history and absence of any evidence that his condition may be congenital.

Whether a reasonable controversy exists is a question of fact for the Workers’ Compensation Court. Mendoza v. Omaha Meat Processors, ante p. 771, 408 N.W.2d 280 (1987).

Findings of fact made by the Nebraska Workers’ [792]*792Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case. Neb. Rev. Stat. § 48-185 (Reissue 1984); Zaleski v. Farmland Foods, 219 Neb. 157, 361 N.W.2d 523 (1985). In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers’ Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. Vredeveld v. Gelco Express, 222 Neb. 363, 383 N.W.2d 780 (1986); Knudsen v. Metropolitan Utilities Dist., 220 Neb. 902, 374 N.W.2d 56 (1985). Factual determinations by the Workers’ Compensation Court will not be set aside on appeal unless such determinations are clearly wrong. Regarding facts determined and findings made after rehearing in the Workers’ Compensation Court, § 48-185 precludes the Supreme Court’s substitution of its view of facts for that of the Workers’ Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers’ Compensation Court. Vredeveld v. Gelco Express, supra; Gibson v. City of Lincoln, 221 Neb. 304, 376 N.W.2d 785 (1985).

Norris v. Iowa Beef Processors, 224 Neb. 867, 876, 402 N.W.2d 658, 666 (1987). We cannot say the action of the Workers’ Compensation Court was clearly erroneous in failing to find that there existed a reasonable controversy in view of the evidence introduced at the rehearing and noted above. Attorney fees and costs were properly awarded.

Appellant also argues this court should hold that as a matter of law there exists a reasonable controversy in a case in which the employee appeals from a dismissal of his petition. The appellant presents no support for this contention, and we are unable to locate any. In Mendoza, ante p.

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Bluebook (online)
408 N.W.2d 291, 225 Neb. 789, 1987 Neb. LEXIS 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tlamka-v-goodyear-tire-rubber-co-neb-1987.