Michie v. Anderson Builders ( 2015 )


Menu:
  •             Decisions    of the Nebraska Court of Appeals
    MICHIE v. ANDERSON BUILDERS	731
    Cite as 
    22 Neb. App. 731
    Bernard Michie and Dianna Lee Estes, appellants,
    v. A nderson Builders, I nc., appellee.
    ___ N.W.2d ___
    Filed February 3, 2015.    No. A-14-200.
    1.	 Workers’ Compensation: Appeal and Error. On appellate review, the findings
    of fact made by the trial judge of the Workers’ Compensation Court have the
    effect of a jury verdict and will not be disturbed unless clearly wrong.
    2.	 Workers’ Compensation: Evidence: Appeal and Error. If the record contains
    evidence to substantiate the factual conclusions reached by the trial judge in
    workers’ compensation cases, an appellate court is precluded from substituting its
    view of the facts for that of the compensation court.
    3.	 Workers’ Compensation: Appeal and Error. An appellate court is obligated
    in workers’ compensation cases to make its own determinations as to questions
    of law.
    4.	 Foreign Judgments: Jurisdiction: States. A judgment rendered in a sister state
    court which had jurisdiction is to be given full faith and credit and has the same
    validity and effect in Nebraska as in the state rendering judgment.
    5.	 Workers’ Compensation: Expert Witnesses. In order for expert testimony to
    be admissible in a workers’ compensation case, the witness must qualify as an
    expert, the testimony must assist the trier of fact to understand the evidence or
    determine a fact in issue, the witness must have a factual basis for the opinion,
    and the testimony must be relevant.
    6.	 Workers’ Compensation: Evidence: Appeal and Error. In testing the suf-
    ficiency of the evidence to support the findings of fact by the Workers’
    Compensation Court, the evidence must be considered in the light most favorable
    to the successful party, every controverted fact must be resolved in favor of the
    successful party, and the successful party will have the benefit of every inference
    that is reasonably deducible from the evidence.
    7.	 Workers’ Compensation: Expert Witnesses. The trial judge in a workers’ com-
    pensation case is entitled to accept the opinion of one expert over another.
    Appeal from the Workers’ Compensation Court: Michael K.
    High, Judge. Affirmed.
    Michael W. Meister for appellants.
    Ryan C. Holsten, of Atwood, Holsten, Brown, Deaver &
    Spier Law Firm, P.C., L.L.O., for appellee.
    Moore, Chief Judge, and Riedmann and Bishop, Judges.
    Decisions of the Nebraska Court of Appeals
    732	22 NEBRASKA APPELLATE REPORTS
    Riedmann, Judge.
    INTRODUCTION
    Dianna Lee Estes appeals the decision of the Nebraska
    Workers’ Compensation Court, which found that although her
    husband, Bernard Michie, sustained a workplace injury, his
    subsequent death was not causally related to his injury. The
    court awarded indemnity payments, along with medical and
    hospital expenses incurred to the time of his death, but denied
    spousal benefits under the Nebraska Workers’ Compensation
    Act. For the reasons set forth below, we affirm.
    BACKGROUND
    Michie sustained an injury to his lower back in April 2010
    while pouring and leveling wet concrete in the course and
    scope of his employment with Anderson Builders, Inc. Michie
    underwent various treatments for the pain associated with his
    injury from April 2010 until he died unexpectedly in April
    2012. At the time of his death, Michie was taking two prescrip-
    tion medications related to his workplace injury: oxycodone
    for pain and cyclobenzaprine as a muscle relaxant. Prior to
    his death, Michie initiated this action, seeking indemnity and
    medical benefits under the Nebraska Workers’ Compensation
    Act. Following his death, Michie’s widow, Estes, filed an
    amended petition, seeking spousal benefits as well as funeral
    and burial expenses. She alleged that Michie died as a result
    of an accidental overdose of the medications he was prescribed
    for his workplace injury and that she was therefore entitled to
    death benefits.
    A trial was held in the compensation court. Estes offered
    various exhibits, including Michie’s post mortem toxicology
    test results, an autopsy report, and the verdict of the coroner
    from Laramie County, Wyoming, which is the location where
    Michie died. The toxicology test results showed the presence
    of both prescription drugs in Michie’s blood at the time of his
    death. The concentration of oxycodone was 27 nanograms per
    milliliter, and the concentration of cyclobenzaprine was 60
    nanograms per milliliter.
    The autopsy report was prepared by Dr. James A. Wilkerson
    IV, a forensic pathologist. Dr. Wilkerson’s conclusion as to
    Decisions  of the Nebraska Court of Appeals
    MICHIE v. ANDERSON BUILDERS	733
    Cite as 
    22 Neb. App. 731
    the cause of Michie’s death is stated in the autopsy report
    as follows:
    Based upon the history and autopsy findings, it is my
    opinion that . . . Michie, a 49-year-old White male, had
    no definitive cause of death. History, scene findings,
    pulmonary edema and a full bladder, along with the
    toxicology findings, suggest multiple drug intoxication
    as the most likely cause of death. Prolonged metabolism
    while in a comatose but ultimately fatal state resulted
    in reduced levels of the drugs. The manner of death
    is undetermined.
    The Laramie County coroner conducted an investigation
    and determined the cause of Michie’s death to be “mixed drug
    toxicity due to an overdose of his prescribed medications.” He
    determined the manner of death to be “accidental.”
    Anderson Builders presented expert testimony of Dr. John
    Vasiliades, a board-certified clinical chemist, toxicologist, and
    forensic toxicologist. Dr. Vasiliades is currently employed as a
    laboratory director and toxicologist at a toxicology laboratory
    in Omaha, Nebraska. He holds both a bachelor’s degree and a
    doctorate degree in chemistry, and he has completed fellow-
    ships in chemistry and toxicology. He has qualified hundreds
    of times in state and federal court as a toxicology and forensic
    toxicology expert. However, Dr. Vasiliades is not a licensed
    physician or medical care provider.
    Before rendering an opinion in this matter, Dr. Vasiliades
    reviewed Michie’s medical records, the autopsy report, the
    toxicology test results, and the death investigation report and
    verdict of the Laramie County coroner. Dr. Vasiliades was
    aware, based on his review of the records, that Michie had a
    history of back pain and had been taking 30 milligrams each
    of oxycodone and cyclobenzaprine daily for a long period
    of time.
    Dr. Vasiliades testified that he is familiar with both of
    these prescription drugs and their effects on the human body.
    He testified that the concentrations of the two drugs found in
    Michie’s blood at the time of his death were in the therapeu-
    tic, or even “subtherapeutic,” range. The level of oxycodone
    in Michie’s blood was only 27 nanograms per millileter,
    Decisions of the Nebraska Court of Appeals
    734	22 NEBRASKA APPELLATE REPORTS
    which is consistent with what Dr. Vasiliades would expect
    for someone who was taking 30 milligrams of the drug per
    day. He explained that in order for oxycodone to become
    toxic, it must be in excess of 600 nanograms per milliliter.
    Regarding cyclobenzaprine, Dr. Vasiliades testified that it
    becomes toxic at levels in excess of 300 nanograms per milli-
    liter, and Michie’s blood sample contained only 60 nanograms
    per milliliter.
    Given that the concentrations of the drugs in Michie’s blood
    were so low, Dr. Vasiliades opined that the drugs “certainly”
    did not cause Michie’s death. He explained that neither drug
    concentration was high enough to cause death individually or
    in combination with one another, especially given that Michie
    was a chronic user and could likely withstand much higher
    concentrations of the drugs.
    When questioned about the possibility that Michie had
    an adverse or allergic reaction to the drugs, Dr. Vasiliades
    explained that such reactions would have occurred within the
    first few times of taking the drugs. Because Michie had been
    taking the drugs over a long period of time, Dr. Vasiliades
    opined that Michie’s death was not caused by an adverse or
    allergic reaction to either medication.
    The compensation court awarded indemnity and medical
    benefits for the back injury, but denied spousal benefits to
    Estes based on its finding that she failed to meet her burden
    of proving a causal link between Michie’s death and his work-
    place injury. It found that Dr. Wilkerson’s report as to the
    cause of death was conclusory in nature and not based upon
    toxicological science. It accepted the opinion of Dr. Vasiliades
    that the concentrations of oxycodone and cyclobenzaprine were
    well within the therapeutic range at the time of Michie’s death
    and did not cause his death.
    Both Estes and Michie are named in the timely filed notice
    of appeal, but for ease of discussion, we will refer to Estes as
    the sole appellant.
    ASSIGNMENTS OF ERROR
    Estes assigns three errors on appeal: (1) The compensation
    court erred in failing to give full faith and credit to the verdict
    Decisions  of the Nebraska Court of Appeals
    MICHIE v. ANDERSON BUILDERS	735
    Cite as 
    22 Neb. App. 731
    of the Laramie County coroner, as required by U.S. Const.
    art. IV, § 1; (2) the compensation court erred when it allowed
    Dr. Vasiliades, a forensic toxicologist with no medical training,
    to testify on matters of causation over Estes’ objection, con-
    trary to Nebraska law requiring medical testimony on causa-
    tion in workers’ compensation cases; and (3) the compensation
    court erred in failing to find that the medication prescribed to
    Michie caused or contributed to his death and that Estes was
    entitled to workers’ compensation benefits.
    STANDARD OF REVIEW
    [1-3] On appellate review, the findings of fact made by
    the trial judge of the Workers’ Compensation Court have
    the effect of a jury verdict and will not be disturbed unless
    clearly wrong. Clark v. Alegent Health Neb., 
    285 Neb. 60
    , 
    825 N.W.2d 195
     (2013). If the record contains evidence to sub-
    stantiate the factual conclusions reached by the trial judge in
    workers’ compensation cases, an appellate court is precluded
    from substituting its view of the facts for that of the compen-
    sation court. 
    Id.
     An appellate court is obligated in workers’
    compensation cases to make its own determinations as to
    questions of law. 
    Id.
    ANALYSIS
    Full Faith and Credit to
    Coroner’s Verdict
    Estes first assigns that the compensation court erred in fail-
    ing to give full faith and credit to the verdict of the Laramie
    County coroner, as required by U.S. Const. art. IV, § 1.
    We disagree.
    [4] A judgment rendered in a sister state court which had
    jurisdiction is to be given full faith and credit and has the
    same validity and effect in Nebraska as in the state render-
    ing judgment. In re Trust Created by Nixon, 
    277 Neb. 546
    ,
    
    763 N.W.2d 404
     (2009). We do not believe the verdict issued
    by the Laramie County coroner is a “judgment” entitled to
    full faith and credit. But even if it were, the Full Faith and
    Credit Clause would require our courts to give it the same
    validity and effect that it would have in Wyoming. See In re
    Decisions of the Nebraska Court of Appeals
    736	22 NEBRASKA APPELLATE REPORTS
    Trust Created by Nixon, 
    supra.
     Estes has not pointed to any
    Wyoming law indicating what validity and effect a coroner’s
    verdict is given in Wyoming. According to our research, a
    coroner’s verdict is merely advisory and has no probative
    effect under Wyoming law. See Raigosa v. State, 
    562 P.2d 1009
     (Wyo. 1977).
    Because the coroner’s verdict would not have been con-
    clusive evidence in Wyoming courts as to Michie’s cause of
    death, the Full Faith and Credit Clause does not require that
    it be given such effect in our courts. Thus, the compensation
    court was entitled to consider and weigh the credibility of the
    coroner’s verdict, just as any other piece of evidence received
    at trial. This assignment of error has no merit.
    Testimony on Cause of Death
    For her second assignment of error, Estes asserts that
    the compensation court erred by allowing Dr. Vasiliades,
    a forensic toxicologist with no medical training, to testify
    on matters of causation, contrary to Nebraska law requiring
    medical testimony to prove causation. She argues, therefore,
    that the compensation court should have sustained her objec-
    tions to Dr. Vasiliades’ testimony on the basis of foundation
    and relevance.
    In support of her argument, Estes relies upon Mendoza v.
    Omaha Meat Processors, 
    225 Neb. 771
    , 780, 
    408 N.W.2d 280
    ,
    286 (1987), which states:
    “‘“Where the claimed injuries are of such a character as
    to require skilled and professional persons to determine
    the cause and extent thereof, the question is one of sci-
    ence. Such a question must necessarily be determined from
    the testimony of skilled professional persons and cannot
    be determined from the testimony of unskilled witnesses
    having no scientific knowledge of such injuries.” The
    employee must show by competent medical testimony a
    causal connection between the alleged injury, the employ-
    ment, and the disability.’ . . .”
    (Emphasis supplied.)
    [5] We do not believe this case supports Estes’ argument.
    The fact that a plaintiff is required to show causation through
    Decisions  of the Nebraska Court of Appeals
    MICHIE v. ANDERSON BUILDERS	737
    Cite as 
    22 Neb. App. 731
    competent medical testimony does not mean that nonmedical
    expert testimony is inadmissible. In order for expert testimony
    to be admissible in a workers’ compensation case, the witness
    must qualify as an expert, the testimony must assist the trier
    of fact to understand the evidence or determine a fact in issue,
    the witness must have a factual basis for the opinion, and the
    testimony must be relevant. See Paulsen v. State, 
    249 Neb. 112
    , 
    541 N.W.2d 636
     (1996). We note that scientific testimony,
    rather than medical testimony, has been considered in a prior
    workers’ compensation case for purposes of determining causa-
    tion. See Ward v. City of Mitchell, 
    224 Neb. 711
    , 
    400 N.W.2d 862
     (1987).
    Here, although Dr. Vasiliades is not a medical expert, he is
    certainly qualified as an expert in the science of toxicology.
    He has a bachelor’s degree and doctorate degree in chemistry,
    and he completed fellowships in chemistry and toxicology. He
    is board certified in clinical chemistry, toxicology, and foren-
    sic toxicology, and is currently employed as a toxicologist at
    a toxicology laboratory. He has qualified hundreds of times in
    state and federal courts as a toxicology and forensic toxicol-
    ogy expert.
    Dr. Vasiliades reviewed Michie’s medical records, the
    autopsy report, and the post mortem blood test results, which
    provided the proper factual foundation for his opinion. His tes-
    timony was certainly helpful to the trier of fact in understand-
    ing the toxicology reports and whether the concentration of
    prescription drugs found in Michie’s blood could have caused
    his death. Dr. Vasiliades’ opinion that the concentration of
    those drugs was therapeutic, rather than toxic, was relevant to
    the issue before the court: whether the prescription drugs con-
    tributed to or caused Michie’s death.
    Because Dr. Vasiliades’ testimony was both relevant and
    supported by proper foundation, the compensation court did
    not err in admitting it as expert testimony. This assignment of
    error is without merit.
    Denial of Spousal Benefits
    Finally, Estes asserts the compensation court erred in failing
    to find that the medications prescribed for Michie’s workplace
    Decisions of the Nebraska Court of Appeals
    738	22 NEBRASKA APPELLATE REPORTS
    injury contributed to his death and that therefore, Estes was
    entitled to workers’ compensation benefits.
    [6] A factual determination by the Nebraska Workers’
    Compensation Court will not be set aside on appeal unless
    such determinations are clearly erroneous. Aken v. Nebraska
    Methodist Hosp., 
    245 Neb. 161
    , 
    511 N.W.2d 762
     (1994). In
    testing the sufficiency of the evidence to support the findings
    of fact by the Workers’ Compensation Court, the evidence
    must be considered in the light most favorable to the success-
    ful party, every controverted fact must be resolved in favor
    of the successful party, and the successful party will have the
    benefit of every inference that is reasonably deducible from
    the evidence. Rader v. Speer Auto, 
    287 Neb. 116
    , 
    841 N.W.2d 383
     (2013).
    Here, the compensation court found that Estes failed to meet
    her burden of proving a causal link between Michie’s work-
    place injury and his subsequent death. In reaching this conclu-
    sion, the court rejected Dr. Wilkerson’s opinion as to the cause
    of death and instead accepted the opinion of Dr. Vasiliades that
    the concentrations of oxycodone and cyclobenzaprine were
    well within the therapeutic range and did not cause Michie’s
    death. We conclude that the record contains sufficient evidence
    to support these findings.
    Estes argues on appeal that a causal link was established
    because the only medications found in Michie’s body at the
    time of his death were the medications prescribed to treat his
    workplace injury. However, the presence of the medications
    alone is not enough to establish a causal link between the
    injury and the death. Although Dr. Wilkerson believed that
    “multiple drug intoxication” was the “most likely cause of
    death,” Dr. Vasiliades testified that the concentration of those
    drugs was therapeutic, rather than toxic, and could not have
    caused Michie’s death.
    [7] The trial judge in a workers’ compensation case is
    entitled to accept the opinion of one expert over another. See
    Lowe v. Drivers Mgmt., Inc., 
    274 Neb. 732
    , 
    743 N.W.2d 82
    (2007). We will not substitute our findings of fact for those
    of the compensation court when its findings are substantiated
    Decisions      of the   Nebraska Court of Appeals
    GRAY v. KENNEY	739
    Cite as 
    22 Neb. App. 739
    by the record. See Clark v. Alegent Health Neb., 
    285 Neb. 60
    , 
    825 N.W.2d 195
     (2013). This assignment of error has
    no merit.
    CONCLUSION
    For the reasons set forth above, we affirm the decision of the
    compensation court.
    Affirmed.
    Graylin Gray,        appellant, v.
    Michael K enney,
    director of Nebraska Department of
    Correctional Services, appellee.
    ___ N.W.2d ___
    Filed February 3, 2015.    No. A-14-378.
    1.	 Affidavits: Appeal and Error. An appellate court reviews a district court’s
    denial of in forma pauperis status under 
    Neb. Rev. Stat. § 25-2301.02
     (Reissue
    2008) de novo on the record based on the transcript of the hearing or the written
    statement of the court.
    2.	 Constitutional Law: Judgments. Except in those cases where the denial of in
    forma pauperis status would deny a defendant his or her constitutional right to
    appeal in a felony case, 
    Neb. Rev. Stat. § 25-2301.02
    (1) (Reissue 2008) allows
    the court on its own motion, or upon objection by any interested party, to deny in
    forma pauperis status on the basis that the legal positions asserted by the appli-
    cant are frivolous or malicious.
    3.	 Actions: Words and Phrases. A frivolous legal position pursuant to 
    Neb. Rev. Stat. § 25-2301.02
     (Reissue 2008) is one wholly without merit, that is, without
    rational argument based on the law or on the evidence.
    4.	 Habeas Corpus: Judgments: Collateral Attack. Under Nebraska law, an action
    for habeas corpus is a collateral attack on a judgment of conviction.
    5.	 Judgments: Collateral Attack. Only a void judgment may be collaterally
    attacked.
    6.	 Judgments: Jurisdiction: Collateral Attack. Where the court has jurisdic-
    tion of the parties and the subject matter, its judgment is not subject to collat-
    eral attack.
    7.	 Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will not lie to
    discharge a person from a sentence of penal servitude where the court imposing
    the sentence had jurisdiction of the offense and the person of the defendant, and
    the sentence was within the power of the court to impose.
    8.	 Habeas Corpus. A writ of habeas corpus is not a writ for correction of errors,
    and its use will not be permitted for that purpose.
    

Document Info

Docket Number: A-14-200

Filed Date: 2/3/2015

Precedential Status: Precedential

Modified Date: 2/3/2015