Michie v. Anderson Builders ( 2015 )

Decisions of the Nebraska Court of Appeals
MICHIE v. ANDERSON BUILDERS 731
Cite as 22 Neb. App. 731Bernard 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. 731the 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. 731of 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. 731competent 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. 739by 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.