Kuper Successfully Defends Appeal of an Order of Dismissal

In the case of Hamilton v. UPS, attorney Charles Kuper successfully defended UPS against an appeal from an Order of Dismissal entered by the Nebraska Workers’ Compensation Court.  Hamilton filed a Petition alleging he was permanently and totally disabled due to dementia that he alleged was caused by carbon monoxide exposure while working as a spotter truck driver for UPS.  Following trial, the Compensation Court found Hamilton was unable to prove chronic exposure to carbon monoxide and dismissed his case.

On appeal, the Nebraska Court of Appeals was not persuaded that the Compensation Court had erred in dismissing the Petition.  The issues on appeal were whether the Compensation Court erred in finding Hamilton did not suffer a work-related injury because he failed to prove exposure to carbon monoxide and in rejecting the opinion of the clinical psychologist testifying on behalf off Hamilton.  On both accounts, the Court of Appeals found the Compensation Court did not err and upheld the dismissal.

Regarding the alleged error related to carbon monoxide exposure, both the Compensation Court and the Court of Appeals sifted through the extensive evidence and concluded there was not sufficient evidence to show Hamilton had been exposure to carbon monoxide in levels to support his allegations.  In so doing, the Court Appeals agreed with the Compensation Court’s findings that Hamilton’s experts provided opinions that were conclusory and not persuasive and accepted the opinions of the experts testifying on behalf of UPS.

The Court of Appeals further agreed with the rejection of the opinion of Hamilton’s clinical psychologist.  The decision from the Court of Appeals, in support of its finding, cites to testimony from Hamilton’s clinical psychologist that was elicited by Kuper during deposition.  This testimony made it clear Hamilton’s expert could not testify as to the levels of carbon monoxide Hamilton was exposed to and did not know what constituted an elevated level of carbon monoxide.  As such, the Court of Appeals determined the Compensation Court did not err in rejecting the opinion of Hamilton’s clinical psychologist.

The full opinion of the Compensation Court can be found here and the full opinion from the Court of Appeals can be downloaded here.

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