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09/29/2017 09:10 AM CDT




                                                         - 903 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                          HINTZ v. FARMERS CO-OP ASSN.
                                                Cite as 297 Neb. 903




                           Ian T. Hintz,      appellant, v. Farmers Cooperative
                                              Association, appellee.
                                                    ___ N.W.2d ___

                                        Filed September 29, 2017.   No. S-16-267.

                1.	 Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
                     Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify,
                     reverse, or set aside a Workers’ Compensation Court decision only when
                     (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 compensa-
                     tion court do not support the order or award.
                 2.	 ____: ____. Findings of fact made by the Workers’ Compensation Court
                     have the same force and effect as a jury verdict and will not be set aside
                     unless clearly erroneous.
                3.	 Workers’ Compensation: Evidence: Appeal and Error. When testing
                     the sufficiency of the evidence to support findings of fact made by the
                     Workers’ Compensation Court trial judge, the evidence must be consid-
                     ered in the light most favorable to the successful party and the success-
                     ful party will have the benefit of every inference reasonably deducible
                     from the evidence.
                4.	 Workers’ Compensation. The Nebraska Workers’ Compensation Act
                     provides that when an employee suffers personal injury caused by acci-
                     dent or occupational disease, arising out of and in the course of his or
                     her employment, such employee shall receive compensation from his or
                     her employer if the employee was not willfully negligent at the time of
                     receiving such injury.
                5.	 Workers’ Compensation: Proof. In order to recover under the Nebraska
                     Workers’ Compensation Act, a claimant has the burden of proving by a
                     preponderance of the evidence that an accident or occupational disease
                     arising out of and occurring in the course of employment proximately
                     caused an injury which resulted in disability compensable under the act.
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             Nebraska Supreme Court A dvance Sheets
                     297 Nebraska R eports
                      HINTZ v. FARMERS CO-OP ASSN.
                            Cite as 297 Neb. 903

 6.	 Workers’ Compensation: Expert Witnesses. If the nature and effect
     of a claimant’s injury are not plainly apparent, then the claimant must
     provide expert medical testimony showing a causal connection between
     the injury and the claimed disability.
 7.	 Expert Witnesses. Triers of fact are not required to take the opinions of
     experts as binding on them.
 8.	 Workers’ Compensation: Expert Witnesses. It is the role of the
     Nebraska Workers’ Compensation Court as the trier of fact to determine
     which, if any, expert witnesses to believe.
 9.	 Workers’ Compensation: Appeal and Error. Where the record pre­
     sents nothing more than conflicting medical testimony, an appellate court
     will not substitute its judgment for that of the Workers’ Compensation
     Court.
10.	 Evidence: Words and Phrases. “Competent evidence” is defined as
     that which is admissible and relevant on the point in issue or, stated
     another way, admissible and tending to establish a fact in issue.
11.	 Expert Witnesses. When the subject matter is wholly scientific or so far
     removed from the usual and ordinary experience of the average man that
     expert knowledge is essential to the formation of an intelligent opinion,
     only an expert can competently give opinion evidence as to the cause of
     the physical condition.
12.	 Trial: Witnesses. The question as to the competency of a witness must
     be initially determined by the trial court.
13.	 ____: ____. The credibility and weight of the testimony to be given to a
     witness are for the trier of fact to determine.
14.	 Expert Witnesses: Physicians and Surgeons. For purposes of deter-
     mining whether a medical expert’s testimony is admissible, it is accept-
     able, in arriving at a diagnosis, for a physician to rely on examinations
     and tests performed by other medical practitioners.

   Petition for further review from the Court of Appeals, Inbody
and Pirtle, Judges, and McCormack, Retired Justice, on appeal
thereto from the Workers’ Compensation Court, Thomas E.
Stine, Judge. Judgment of Court of Appeals reversed, and
cause remanded with direction.
  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.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                        HINTZ v. FARMERS CO-OP ASSN.
                              Cite as 297 Neb. 903

   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
   Funke, J.
   The issues in this litigation were the nature and extent of
a work-related injury sustained by Ian T. Hintz, an employee
of Farmers Cooperative Association (Farmers). The Nebraska
Workers’ Compensation Court found that Hintz’ work-related
injury was fully resolved within 3 days of the work accident
and that Hintz’ need for additional medical treatment was the
result of a non-work-related injury. Upon appeal, the Nebraska
Court of Appeals reversed the decision and remanded the
cause with directions for the court to reconsider the claim
in light of competent medical opinion of causation and con-
sidering the beneficent purpose of the Nebraska Workers’
Compensation Act.1
   We hold that there was sufficient competent evidence in the
record to support the Workers’ Compensation Court’s determi-
nation that Hintz’ work-related injury was fully resolved prior
to his fall on December 4, 2014. Therefore, we reverse the
holding of the Court of Appeals.
                        BACKGROUND
   On Thursday, November 13, 2014, Hintz was employed by
Farmers as a tire technician and was repairing a semitrailer
tire, when the tire exploded. At the time of the explosion, Hintz
was kneeling directly in front of the tire. As a result of the
explosion, Hintz was thrown approximately 10 feet and landed
on his back. He could not feel his legs, had pain in his groin
and hips, and heard “a whistling” in his ears. Within a few
minutes, Hintz was able to get up and walk, but he had limited
use of his right leg.
   Due to the pain Hintz was experiencing, he left work
immediately after the explosion and did not return until the

 1	
      Hintz v. Farmers Co-op. Assn., 24 Neb. App. 561, 891 N.W.2d 716 (2017).
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                  HINTZ v. FARMERS CO-OP ASSN.
                        Cite as 297 Neb. 903

following Monday. However, Hintz did not seek medical care
for his injuries in the days immediately following the incident.
Hintz indicated that upon returning to work, he was able to
work only “a little” at that time.
   To the contrary, 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 evi-
dence included Hintz’ payroll records and the testimony of his
coworkers that Hintz resumed his normal job duties without
any notable problems.
   On December 4, 2014, while walking up a set of stairs at
home, Hintz tripped and fell, hitting his hip. Hintz sought
medical treatment the next day with Dr. James Gallentine, an
orthopedic doctor. Hintz told Gallentine that he was suffering
from pain in his right leg which began the night before, when
he tripped on his stairs and hit his right hip and knee. Hintz
also told Gallentine about the November 13 incident at work;
however, he said that since that incident, he had returned to
work and “was jumping on and off trucks without any diffi-
culty.” Based upon his evaluation, Gallentine prescribed pain
medication for Hintz and told him not to return to work for a
few days.
   The pain in Hintz’ right hip and leg did not resolve, and
as a result, Gallentine ordered an MRI, which revealed that
Hintz was suffering from a “superior labral tear and also some
irregularity in the posterior labrum with a possible paralabral
cyst forming.” Gallentine referred Hintz to Dr. Justin Harris,
an orthopedic doctor, “for a possible hip arthroscopy” and
directed Hintz to remain off work until further notice. Hintz
then completed an application for short-term disability benefits
from Farmers. On the application, Hintz indicated that he was
temporarily, totally disabled and that his condition was not
related to his occupation.
   On December 30, 2014, Harris examined Hintz. In his
examination notes, Harris indicated that Hintz had been expe-
riencing pain in his right hip since December 4, when he
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                  HINTZ v. FARMERS CO-OP ASSN.
                        Cite as 297 Neb. 903

“tripped going up stairs.” Harris’ notes did not mention the
November 13 work incident.
   On February 25, 2015, Harris performed surgery on Hintz
to repair the injuries to his hip. The surgical procedures per-
formed included a right hip arthroscopy and labral repair.
Harris directed Hintz to remain off work until at least his next
scheduled appointment, 6 weeks postsurgery.
   After the surgery, Hintz participated in physical therapy. He
continued to complain of pain in his right hip and leg and, as
a result, was prescribed pain medication. Hintz did not report
any notable improvements to his condition.
   Farmers terminated Hintz in March 2015 because he had not
been to work since December 4, 2014. Within days of being
fired, Hintz attended an appointment with Harris, at which
time he told Harris that his hip injury was caused by a “tire
[blowing] up on him two weeks prior to . . . seeking medi-
cal care.”
   On April 21, 2015, Hintz filed his petition with the Workers’
Compensation Court, in which he alleged that he had sustained
personal injury in an accident arising 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 addition, Farmers affirmatively
alleged that any injury or disability Hintz was suffering from
was not caused by a “work-related accident.”
   On May 18, 2015, Harris authored a letter to Hintz’ counsel,
discussing Hintz’ injury to his right hip and the cause of that
injury. Harris stated:
         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.
         ....
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                  HINTZ v. FARMERS CO-OP ASSN.
                        Cite as 297 Neb. 903

         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
      unrelenting 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
      simply falling up the steps in order to create this type of
      labral tear.
   On that same day, Gallentine also authored a letter to Hintz’
counsel, discussing the cause of Hintz’ injury. Gallentine
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 medi-
      cal certainty that would specifically assign his injury to
      one event versus the other. I would certainly be willing
      to defer to . . . 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.
   Dr. Dennis Bozarth, an orthopedic doctor, 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, Bozarth states that although he “can’t
say to a reasonable degree of medical certainty that the work
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                  HINTZ v. FARMERS CO-OP ASSN.
                        Cite as 297 Neb. 903

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.”
Bozarth concluded:
         Therefore 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, injur-
      ing 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.
   After a hearing on Hintz’ petition for disability benefits, the
compensation court entered an order denying Hintz any work-
ers’ 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 fur-
ther 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 appealed.
   The Court of Appeals concluded that the trial 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, and as a result, the Court of Appeals reversed
the decision of the compensation court and remanded the
cause with directions for the court to reconsider the claim in
light of competent medical opinion of causation. The appel-
late court concluded that the finding by the compensation
court—wherein the court rejected Harris’ opinions because
they were “based on an inconsistent history given by [Hintz]
and, therefore, [his] opinions lack a credible foundation”—was
clearly wrong.
   Specifically, the appellate court determined that Harris’
opinion was based upon his personal observations of the injury
during surgery. The court also noted that Gallentine deferred
to Harris’ opinion, because Harris performed the surgery.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                        HINTZ v. FARMERS CO-OP ASSN.
                              Cite as 297 Neb. 903

   The Court of Appeals further determined that Bozarth’s
opinion was not based on any medical conclusions, but merely
the review of Hintz’ medical records. Thus, the court con-
cluded that Bozarth’s opinion did not constitute competent
medical testimony.

                  ASSIGNMENTS OF ERROR
   Hintz did not specifically assign errors in his brief before
the Court of Appeals, but argued that the compensation court
erred (1) in finding that there was not a causal relationship
between his injuries and the November 13, 2014, incident at
Farmers and (2) in finding that he was not entitled to any dis-
ability benefits.
   In its petition for further review, Farmers assigns that the
Court of Appeals erred (1) by misapplying the clear error
standard of review, in that it did not weigh the evidence in
the light most favorable to the successful party and substituted
its judgment for that of the trial court; (2) by holding that the
opinion of Farmer’s expert witness, Bozarth, was “‘not com-
petent medical testimony’”; (3) by applying the rule of liberal
construction of the Nebraska Workers’ Compensation Act to
evidence; and (4) in considering Hintz’ appeal, given Hintz’
failure to specifically assign any errors within his brief.

                   STANDARD OF REVIEW
   [1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensa-
tion 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

 2	
      Nichols v. Fairway Bldg. Prods., 294 Neb. 657, 884 N.W.2d 124 (2016).
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                       HINTZ v. FARMERS CO-OP ASSN.
                             Cite as 297 Neb. 903

   [2,3] Findings of fact made by the Workers’ Compensation
Court have the same force and effect as a jury verdict and will
not be set aside unless clearly erroneous.3 When testing the
sufficiency of the evidence to support findings of fact made
by the Workers’ Compensation Court trial judge, the evidence
must be considered in the light most favorable to the success-
ful party and the successful party will have the benefit of every
inference reasonably deducible from the evidence.4

                               ANALYSIS
   This case involves two contradictory factual scenarios: (1)
whether Hintz fully recovered from the workplace accident and
was then reinjured at home or (2) whether Hintz continued to
experience pain from the accident and was then reinjured as
a result.
   [4] The Nebraska Workers’ Compensation Act provides that
when an employee suffers personal injury caused by accident
or occupational disease, arising out of and in the course of his
or her employment, such employee shall receive compensation
from his or her employer if the employee was not willfully
negligent at the time of receiving such injury.5
   [5] In order to recover under the Nebraska Workers’
Compensation Act, a claimant has the burden of proving by a
preponderance of the evidence that an accident or occupational
disease arising out of and occurring in the course of employ-
ment proximately caused an injury which resulted in disability
compensable under the act.6
   [6-8] If the nature and effect of a claimant’s injury are not
plainly apparent, then the claimant must provide expert medi-
cal testimony showing a causal connection between the injury

 3	
      See Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783 (1995).
 4	
      Nichols, supra note 2.
 5	
      Neb. Rev. Stat. § 48-101 (Reissue 2010).
 6	
      Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                       HINTZ v. FARMERS CO-OP ASSN.
                             Cite as 297 Neb. 903

and the claimed disability.7 The rule in this jurisdiction is that
triers of fact are not required to take the opinions of experts
as binding on them.8 It is the role of the Nebraska Workers’
Compensation Court as the trier of fact to determine which, if
any, expert witnesses to believe.9

                     Sufficiency of Evidence
   Here, the compensation court considered the expert medical
opinions of three orthopedic doctors and noted that there was
conflicting medical evidence presented concerning the nature
and extent of Hintz’ injuries. Harris opined that Hintz’ labral
tear which was found at surgery was relatively severe and that
the mechanism of injury seemed much more likely to be a
“high energy work injury” as opposed to simply falling on the
stairs; Bozarth opined that more likely than not, Hintz’ work
accident injuring his left lower extremity fully resolved prior
to his fall at home and that his fall at home caused his right
hip to become symptomatic; and Gallentine opined that Hintz
could have suffered his hip injury from either the work-related
incident or the fall at home.
   The compensation court rejected Harris’ opinion, finding it
not credible that Hintz could have returned to work full duty
for several weeks with such a severe tear. Noting that “[t]he
value of an expert witness’ opinion is no stronger than the
facts upon which it is based,” the trial court rejected Harris’
testimony as lacking a “credible foundation,” because it was
premised upon an “inconsistent history.”
   [9] Where the record presents nothing more than conflicting
medical testimony, this court will not substitute its judgment
for that of the Workers’ Compensation Court.10

 7	
      Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000).
 8	
      Hamer v. Henry, 215 Neb. 805, 341 N.W.2d 322 (1983).
 9	
      Owen, supra note 7.
10	
      Nichols, supra note 2.
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                  HINTZ v. FARMERS CO-OP ASSN.
                        Cite as 297 Neb. 903

   The evidence also showed that Hintz sought no medical
treatment after the first injury, but immediately sought medical
treatment after the second injury. Further, upon seeking that
medical treatment, he repeatedly told his medical care provid-
ers that his injury was the result of falling on the stairs. When
asked whether the injury was work related, he repeatedly said
it was not. Only after Hintz was terminated from his employ-
ment did he begin stating that the injury was the result of the
tire exploding.
   The compensation court found the evidence that Hintz had
returned to full-duty work and was experiencing no pain from
the accident was more credible than Hintz’ version that he con-
tinued to experience pain from the accident, which pain first
surfaced weeks later.
   Although the version of facts found by the compensation
court must be accepted on appeal, the Court of Appeals appears
to have reweighed the evidence by focusing on the opinion of
Harris and rejecting the opinion of Bozarth. Further, the Court
of Appeals reweighed the evidence as to the inconsistent state-
ments made by Hintz to both of his doctors, the testimony of
his coworkers, and the payroll records.
   Since there was competent testimony to support the deter-
mination that Hintz’ work-related injury fully resolved before
the injury he sustained at home, the decision of the compensa-
tion court was not clearly erroneous, and therefore, the holding
of the Court of Appeals is reversed.
                   Effect of R ecords R eview
   The Court of Appeals also determined that Bozarth’s opin-
ion was not based on any medical conclusions, but merely
the review of Hintz’ medical records. As a result, the court
concluded that his opinion did not constitute competent medi-
cal testimony.
   In doing so, the appellate court stated that “[t]he sufficiency
of an expert’s opinion is judged in the context of the expert’s
entire statement” and that “the value of an expert witness’
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                       HINTZ v. FARMERS CO-OP ASSN.
                             Cite as 297 Neb. 903

opinion is no stronger than the facts upon which it is based”11—
two contentions with which we agree. However, the Court of
Appeals went on to state that “[b]ecause . . . Bozarth’s opinion
is not based on any medical conclusions, we conclude that his
opinion does not constitute competent medical testimony.”12
With this contention we cannot agree.
   [10,11] We have defined “competent evidence” to be that
which is admissible and relevant on the point in issue or,
stated another way, admissible and tending to establish a
fact in issue.13 When the subject matter is wholly scientific
or so far removed from the usual and ordinary experience
of the average man that expert knowledge is essential to the
formation of an intelligent opinion, only an expert can com-
petently give opinion evidence as to the cause of the physical
condition.14
   [12,13] The question as to the competency of a witness
must be initially determined by the trial court.15 However, the
credibility and weight of the testimony to be given to a wit-
ness are for the trier of fact to determine.16
   [14] The Court of Appeals misstated our prior jurisprudence
when it concluded that Bozarth’s expert medical opinion was
not competent because he merely reviewed Hintz’ medical
records. To the contrary, we have routinely held that for pur-
poses of determining whether a medical expert’s testimony
is admissible, it is acceptable, in arriving at a diagnosis, for
a physician to rely on examinations and tests performed by
other medical practitioners.17

11	
      Hintz, supra note 1, 24 Neb. App. at 570, 891 N.W.2d at 723.
12	
      Id.
13	
      See Mathes v. City of Omaha, 254 Neb. 269, 576 N.W.2d 181 (1998).
14	
      Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991).
15	
      See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).
16	
      See Nichols, supra note 2.
17	
      Hynes, supra note 6.
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          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                 HINTZ v. FARMERS CO-OP ASSN.
                       Cite as 297 Neb. 903

   In the instant case, the Workers’ Compensation Court
appropriately received into evidence the opinions of both
Harris and Bozarth as competent medical evidence. The court
then correctly considered the conflicting opinions and made
a determination as to the weight and credibility to be given
each of the opinions. As a result, we disapprove of the Court
of Appeals’ determination that Bozarth’s opinion was not
competent.
                        CONCLUSION
   In the case at bar, the facts were in dispute as to whether
Hintz fully recovered from the workplace accident and was
then reinjured at home or whether Hintz continued to experi-
ence pain from the accident and was then reinjured as a result.
The extent of Hintz’ injuries was a question of fact to be
determined by the trier of fact. The Workers’ Compensation
Court was not clearly wrong in finding that Hintz did not
meet his burden of proving that his subsequent injury was
the result of his workplace accident. We reverse the holding
of the Court of Appeals and remand the cause to the Court of
Appeals with direction to affirm the decision of the Workers’
Compensation Court.
                     R eversed and remanded with direction.
