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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
Ian T. Hintz, appellant, v. Farmers
Cooperative Association, appellee.
___ N.W.2d ___
Filed February 28, 2017. No. A-16-267.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the Workers’ Compensation Court may be modified, reversed,
or set aside only upon the grounds that (1) the compensation 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 compensation court do not support the order
or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set
aside a judgment of the Workers’ Compensation Court, an appellate
court reviews the trial judge’s findings of fact, which will not be dis-
turbed unless clearly wrong.
3. ____: ____. Regarding questions of law, an appellate court in workers’
compensation cases is obligated to make its own decisions.
4. Workers’ Compensation: Proof. Under the Nebraska Workers’
Compensation Act, a claimant is entitled to an award for a work-related
injury and disability if the claimant shows, by a preponderance of the
evidence, that he or she sustained an injury and disability proximately
caused by an accident which arose out of and in the course of the claim-
ant’s employment.
5. ____: ____. To recover workers’ compensation benefits, an injured
worker is required to prove by competent medical testimony a causal
connection between the alleged injury, the employment, and the
disability.
6. Trial: Expert Witnesses. The sufficiency of an expert’s opinion is
judged in the context of the expert’s entire statement.
7. ____: ____. The value of an expert witness’ opinion is no stronger than
the facts upon which it is based.
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
Appeal from the Workers’ Compensation Court: Thomas E.
Stine, Judge. Reversed and remanded with directions.
Thomas R. Lamb and Richard W. Tast, Jr., of Anderson,
Creager & Wittstruck, P.C., L.L.O., for appellant.
Jason A. Kidd, of Engles, Ketcham, Olson & Keith, P.C., for
appellee.
Inbody and Pirtle, Judges, and McCormack, Retired
Justice.
McCormack, Retired Justice.
INTRODUCTION
Ian T. Hintz appeals from an order of the Workers’
Compensation Court denying his claim for workers’ compensa-
tion benefits from his former employer, Farmers Cooperative
Association (Farmers). On appeal, Hintz argues that the com-
pensation court erred in finding that his injuries were not
causally related to his work accident. For the reasons set forth
below, we reverse the decision of the compensation court and
remand the cause with directions.
BACKGROUND
On November 13, 2014, Hintz was working as a tire tech-
nician for Farmers. Hintz’ job involved changing and fixing
all types of tires. On the morning of November 13, Hintz
was working on the repair of a tire for a semitrailer. He had
patched a hole in the tire and was attempting to refill the air in
the tire when the tire exploded. At the time of the explosion,
Hintz was kneeling directly in front of the tire. The force of
the explosion threw Hintz approximately 10 feet. He landed on
his back, could not feel his legs, had pain in his hips and his
groin area, and heard “a whistling” in his ears. A few moments
after the incident, Hintz was able to get up and walk, but he
had to “drag” his right leg behind him.
Hintz left work immediately after the explosion, because he
was in a great deal of pain. He did not return to work the next
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
day, a Friday, because he continued to be in pain. However,
Hintz did not seek any medical care for his injuries in the days
immediately following the incident.
Hintz returned to work at Farmers on the Monday follow-
ing the incident. While Hintz indicated that he was only able
to work “a little” at that time, Farmers offered evidence which
suggested that in the days and weeks after Hintz returned to
work, he was able to complete all of his job requirements. Such
evidence includes Hintz’ payroll records and the testimony of
his coworkers that Hintz returned to work the Monday after
the incident and resumed his normal job duties without any
notable problems.
A few weeks after the November 13, 2014, incident, on
December 4, Hintz tripped while walking up some stairs at
his home. The next day, Hintz sought medical treatment with
Dr. James Gallentine, a doctor with an orthopedic and sports
medicine center. Hintz reported to Dr. Gallentine that he was
suffering from pain in his right leg. He indicated that the pain
began the night before when he tripped on his stairs and hit
his right hip and knee. Hintz also told Dr. Gallentine about
the November 13 incident at work. However, he told Dr.
Gallentine that since that incident, he had returned to work and
“was jumping on and off trucks without any difficulty.” Dr.
Gallentine prescribed pain medication for Hintz and told him
not to return to work for a few days.
Hintz continued to report pain in his right hip and leg. As a
result of Hintz’ reports, Dr. Gallentine ordered him to undergo
an MRI. The results of the MRI revealed that Hintz was suf-
fering from a “superior labral tear and also some irregular-
ity in the posterior labrum with a possible paralabral cyst
forming.” Dr. Gallentine referred Hintz to Dr. Justin Harris
“for a possible hip arthroscopy.” On December 19, 2014, Dr.
Gallentine indicated that Hintz should remain off work until
further notice. Because he could not work, Hintz completed
an application for short-term disability benefits from Farmers.
On the application, Hintz indicated that he was temporarily,
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
totally disabled. He also indicated that his condition was not
related to his occupation.
On December 30, 2014, Hintz was examined by Dr. Harris. In
Dr. Harris’ notes from this examination, he indicates that Hintz
has been experiencing pain in his right hip since December
4, when he “tripped going up stairs.” Dr. Harris’ notes do not
mention the November 13 incident at Farmers.
On February 25, 2015, Hintz underwent surgery to repair
the injuries to his hip. The surgical procedures performed
included a right hip arthroscopy and labral repair. Dr. Harris
indicated that after the surgery, Hintz was to continue to
remain off work until at least his next scheduled appointment
in 6 weeks.
After the surgery, Hintz continued to complain of pain in
his right hip and leg. He participated in physical therapy and
was prescribed pain medication, but did not report any notable
improvements to his condition.
In March 2015, Farmers terminated Hintz’ employment
because he had not been to work in over 3 months. A few days
after Hintz was fired from Farmers, he attended an appointment
with Dr. Harris. At this appointment, Hintz told Dr. Harris that
his hip injury was caused by a “tire [blowing] up on him two
weeks prior to . . . seeking medical care.”
On April 21, 2015, Hintz filed a petition with the Nebraska
Workers’ Compensation Court. In the petition, Hintz alleged
that he had sustained personal injury in an accident aris-
ing out of and in the course of his employment on or about
November 13, 2014, and that, as a result, he was entitled
to disability benefits. On May 7, 2015, Farmers answered
Hintz’ petition, denying most of Hintz’ assertions. In addi-
tion, Farmers affirmatively alleged that any injury or dis-
ability Hintz was suffering from was not caused by a “work-
related accident.”
On May 18, 2015, Dr. Harris authored a letter to Hintz’
counsel. In the letter, he discusses Hintz’ injury to his right hip
and the cause of that injury. Dr. Harris stated:
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
I understand that causation is an issue in this case.
When the patient initially presented to me on December
30, 2014, the history that was entered into our notes
states that the patient had tripped up his stairs on
December 4 . . . . The work injury was not documented
at that time.
....
As I have had the opportunity to discuss the case with
[Hintz] since our initial visit, he makes it very clear to me
that his symptoms all started with his work injury and that
he was basically trying to deal with these on his own in
order to keep working until the symptoms became unre-
lenting in December.
Unfortunately, the documentation that we have in our
notes does not necessarily corroborate what [Hintz] is
currently stating. It should be noted, however, that the
labral tear that we found at surgery was relatively severe
and the mechanism of injury seems much more likely
to be a high energy work injury as opposed to sim-
ply falling up the steps in order to create this type of
labral tear.
Also on May 18, 2015, Dr. Gallentine authored a letter to
Hintz’ counsel. In the letter, Dr. Gallentine specifically dis-
cusses the cause of Hintz’ injury. He stated:
It is very difficult to specifically assign causation to one
event versus the other in the case of . . . Hintz. An indi-
vidual could certainly have hip related pain and labral
pathology from the injury as reported at work on the 13th
of November. He also could have similar findings from a
fall as he noted having on December 5 [sic], 2014. I do
not know that there is any reasonable degree of medical
certainty that would specifically assign his injury to one
event versus the other. I would certainly be willing to
defer to Dr. . . . Harris’ opinion as he did perform a hip
arthroscopy on . . . Hintz and would have had a more
direct evaluation of the actual intraarticular pathology
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
noted at that time and whether this could be assigned
more directly to one event or the other.
A third doctor also opined on the cause of Hintz’ hip injury.
Dr. Dennis Bozarth, from an orthopedic center, reviewed Hintz’
medical records at the request of Farmers’ counsel and, on
June 8, 2015, authored a letter concerning the cause of Hintz’
injury. In the letter, Dr. Bozarth states that although he “can’t
say to a reasonable degree of medical certainty that the work
event on November 13, 2014 had any factor in [Hintz’] com-
plaints of right hip pain,” he believes that “more likely than
not, [Hintz’ hip injury] is related to a trip and fall at home.”
Dr. Bozarth concluded,
[t]herefore after review of the available medical
records, more likely than not, my opinion is that . . .
Hintz did have an accident at work where a tire did blow
up, injuring his left lower extremity. This did resolve,
and he was working without restrictions. A new incident
occurred on November 25 [sic], 2014, causing his right
hip to become symptomatic.
In January 2016, the Nebraska Workers’ Compensation
Court conducted a hearing on Hintz’ petition for disability
benefits. At the hearing, Hintz testified concerning the incident
at Farmers on November 13, 2014, his accident at home on
December 4, and his resulting injury and medical care.
Hintz testified that he did not seek any medical care imme-
diately after the November 13, 2014, incident because he
thought he needed to complete an accident report prior to seek-
ing medical care and Farmers did not supply him with such
a report. He also indicated that he did not seek any medical
care because he was concerned that if he did, he would get
Farmers “in trouble.” Hintz testified that he was only able to
work “a little bit” after the November 13 incident. He testified
that when he filled out his paperwork for short-term disability
benefits, Farmers instructed him that if he wanted to remain
employed at Farmers, he needed to report that his injury was
not the result of a work accident.
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24 Nebraska A ppellate R eports
HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
Hintz testified that his fall up the stairs at his home on
December 4, 2014, was due to the lingering effects of the leg
injury he suffered during the November 13 incident. Hintz
indicated that prior to being involved in the tire explosion at
Farmers, he had never had any problems with his right leg
or right hip. Hintz testified that he told Dr. Harris about the
tire explosion during their first encounter and that Dr. Harris
believes that the injury to his right hip is the result of the
November 13 incident.
On February 11, 2016, the compensation court entered an
order denying Hintz any workers’ compensation benefits. The
court noted that both parties agreed that Hintz had a work
accident on November 13, 2014. However, the court found that
any injury Hintz suffered as a result of the work accident was
resolved within 3 days. It further found that Hintz’ right hip
injury which required surgery was the result of a fall on his
stairs at home and not the work accident.
Hintz appeals.
ASSIGNMENTS OF ERROR
Hintz asserts, restated and consolidated, that the compensa-
tion court erred in finding that there was not a causal relation-
ship between his injuries and the November 13, 2014, incident
at Farmers and that, as a result, he was not entitled to any dis-
ability benefits.
STANDARD OF REVIEW
[1-3] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation 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 compensation court do not support the order or award.
Rader v. Speer Auto, 287 Neb. 116, 841 N.W.2d 383 (2013);
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
Contreras v. T.O. Haas, 22 Neb. App. 276, 852 N.W.2d 339
(2014). In determining whether to affirm, modify, reverse, or
set aside a judgment of the Workers’ Compensation Court, an
appellate court reviews the trial judge’s findings of fact, which
will not be disturbed unless clearly wrong. Id. Regarding ques-
tions of law, an appellate court in workers’ compensation cases
is obligated to make its own decisions. Id.
ANALYSIS
[4,5] Under the Nebraska Workers’ Compensation Act, a
claimant is entitled to an award for a work-related injury and
disability if the claimant shows, by a preponderance of the
evidence, that he or she sustained an injury and disability
proximately caused by an accident which arose out of and in
the course of the claimant’s employment. See Schlup v. Auburn
Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992). Moreover,
to recover workers’ compensation benefits, an injured worker
is required to prove by competent medical testimony a causal
connection between the alleged injury, the employment, and
the disability. Owen v. American Hydraulics, 254 Neb. 685,
578 N.W.2d 57 (1998).
In this case, the compensation court found that Hintz failed
to prove that his injury arose out of and in the course of his
employment at Farmers. Specifically, the compensation court
found that “there is no medical evidence to substantiate a
causal relationship between [Hintz’] right hip impingement
syndrome and acetabular labral tear, his employment with
[Farmers], and any resultant disability.” Upon our review of
the record, we conclude that this finding by the compensation
court is clearly wrong. Hintz presented credible medical evi-
dence to prove that his injury was the result of the November
13, 2014, incident at Farmers.
At trial, Hintz offered into evidence a letter authored by
Dr. Harris, the doctor who performed his hip surgery. In
this letter, Dr. Harris stated, “the labral tear that we found at
surgery was relatively severe and the mechanism of injury
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
seems much more likely to be a high energy work injury as
opposed to simply falling up the steps in order to create this
type of labral tear.” Dr. Harris’ medical opinion supports
Hintz’ position that his injury was caused by the tire explo-
sion at Farmers and not by his tripping up the stairs at home.
Additionally, we note that Dr. Harris’ opinion is particularly
significant because, as Hintz’ surgeon, he is the only doctor
who was able to observe Hintz’ actual injuries closely and
thoroughly. In fact, Dr. Gallentine, Hintz’ treating physician,
specifically indicated that he would defer any opinion as to
the cause of Hintz’ injuries to Dr. Harris:
I would certainly be willing to defer to Dr. . . . Harris’
opinion as he did perform a hip arthroscopy on . . . Hintz
and would have had a more direct evaluation of the actual
intraarticular pathology noted at that time and whether
this could be assigned more directly to one event or
the other.
Despite Dr. Harris’ unique position as being the only doctor
who observed Hintz’ injuries, the compensation court wholly
rejected his opinion as to causation. In rejecting Dr. Harris’
opinion, the compensation court found that Harris’ “opinions
are based on an inconsistent history given by [Hintz] and,
therefore, [his] opinions lack a credible foundation.” This find-
ing is clearly wrong and is not supported by the evidence. As
we discussed above, Dr. Harris’ opinion about causation is
based on his observations of Hintz’ injuries during the surgery.
While Dr. Harris does acknowledge that there was some incon-
sistency in Hintz’ reports of how he was injured, ultimately,
Dr. Harris relied on his personal observations of Hintz and his
injuries in forming his opinion that Hintz’ injuries were caused
by the November 13, 2014, incident at Farmers. Dr. Harris’
observations of Hintz during surgery provide a competent,
credible foundation for his opinion of causation.
[6,7] Additionally, we note that Dr. Bozarth, the only other
doctor who offered an opinion about the cause of Hintz’ inju-
ries, did not ever examine Hintz, but, rather, merely reviewed
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
Hintz’ relevant medical records. A reading of Dr. Bozarth’s
opinion of causation reveals that it is not based on any
medical conclusions, but, instead, is based entirely on Hintz’
inconsistent reports of the precise onset of his injury. Dr.
Bozarth stated:
The onset of right hip pain, more likely than not, is
related to a trip and fall at home on November 25 [sic],
2014, as documented by Dr. Gallentine on December 5,
2014, noting the fall on his hip. It does make mention
of the semi tire blowing up and throwing him back 15
feet, and it was also noted that he was able to return to
work jumping off and on trucks without any difficulty.
He did note some possible swelling in the legs and noted
that after the semi tire incident, at least from my reading
of this, that he had some swelling in his legs that had
improved but now had returned at that visit.
The sufficiency of an expert’s opinion is judged in the context
of the expert’s entire statement. Bernhardt v. County of Scotts
Bluff, 240 Neb. 423, 482 N.W.2d 262 (1992). Furthermore,
the value of an expert witness’ opinion is no stronger than the
facts upon which it is based. See id. Because Dr. Bozarth’s
opinion is not based on any medical conclusions, we con-
clude that his opinion does not constitute competent medi-
cal testimony.
Dr. Harris provided competent medical testimony which
indicated that Hintz’ injuries were caused by the November
13, 2014, incident at Farmers. Dr. Harris’ opinion of causation
was based on his personal observations of Hintz’ injuries dur-
ing surgery, and the opinion was essentially unrebutted by any
other competent medical testimony. Accordingly, we conclude
that the compensation court erred in finding that there was no
medical evidence to support Hintz’ contention that his injury
was caused by the tire explosion at Farmers. We reverse the
compensation court’s order denying Hintz’ claim for workers’
compensation benefits and remand the cause with directions
for the court to reconsider the claim in light of Dr. Harris’
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HINTZ v. FARMERS CO-OP ASSN.
Cite as 24 Neb. App. 561
competent medical opinion of causation and considering the
“beneficent purpose” of the Nebraska Workers’ Compensation
Act. See Jackson v. Morris Communications Corp., 265 Neb.
423, 431, 657 N.W.2d 634, 640 (2003).
CONCLUSION
Upon our review, we conclude that the compensation court
was clearly wrong in finding that there was “no medical evi-
dence to substantiate a causal relationship between [Hintz’
injury], his employment with [Farmers], and any resultant
disability.” Given this incorrect factual finding, we reverse
the decision of the compensation court which denied Hintz’
claim for workers’ compensation benefits and remand the cause
with directions for the court to reconsider the claim in light
of Dr. Harris’ competent medical opinion of causation and
considering the beneficent purpose of the Nebraska Workers’
Compensation Act.
R eversed and remanded with directions.
Hintz v. Farmers Co-op Assn.
Combined Opinion