Armstrong v. Watkins Concrete Block

Citation685 N.W.2d 495,12 Neb.App. 729
Decision Date17 August 2004
Docket NumberNo. A-04-026.,A-04-026.
PartiesTravis ARMSTRONG, appellant, v. WATKINS CONCRETE BLOCK, appellee.
CourtCourt of Appeals of Nebraska

Thomas F. Dowd, of Dowd, Dowd & Howard, Omaha, for appellant.

Joseph W. Grant, of Hotz, Weaver, Flood, Breitkreutz & Grant, Omaha, for appellee.

IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

INTRODUCTION

Travis Armstrong appeals the decision of the Nebraska Workers' Compensation Court review panel which affirmed the decision of the Workers' Compensation Court trial judge determining that Armstrong's petition for workers' compensation benefits should be dismissed because there was no expert opinion that Armstrong suffered injury on or about May 11, 2001, in an accident arising out of and in the course of his employment.

FACTUAL BACKGROUND

Armstrong was initially hired by Watkins Concrete Block (Watkins) in 1994 as a "cuber," but in 2000, he was transferred to Watkins' brickyard. Armstrong alleges that on May 11, 2001, he was helping to load concrete blocks onto a customer's truck when he picked up two blocks and felt a pull on the "left low side" of his back. The blocks weighed between 10 and 15 pounds each. Armstrong claims that the customer had parked "too close," which left Armstrong in an awkward position to load the blocks.

On May 16, 2001, Armstrong went to see Dr. Kent Bohac, a chiropractor, complaining of pain in the lower left side of his back. The "Case History" that Armstrong filled out during his initial trip to Dr. Bohac's office indicates that Armstrong was injured "On the Job." Armstrong visited Dr. Bohac again on May 18, and then did not return until August 17. On February 8, 2002, Armstrong was involved in a motor vehicle accident in which his vehicle struck a concrete barrier and went into a ditch. Armstrong claims that he only cut his ear and did not injure his back or leg. On February 11, Armstrong went to see Dr. Brent A. Crouse. Dr. Crouse's "progress note" says that Armstrong was seeking medical attention for his ear, that Armstrong was concerned "about low back pain in the left side which has happened in the last few days as well," and that Armstrong complained of "an ache which radiates down the back of his leg." According to Dr. Crouse, Armstrong awoke on April 16 "with severe left sided low back pain with inability to get up." On June 3, Dr. Douglas J. Long performed surgery on Armstrong to repair a herniated disk. Armstrong returned to work at Watkins on June 27, running a forklift and doing paperwork.

PROCEDURAL BACKGROUND

On June 3, 2002, Armstrong filed an amended petition in the Nebraska Workers' Compensation Court alleging that "on or about May 11, 2001, [he] sustained a personal injury arising out of and in the course of his employment with [Watkins] in which he sustained a herniation of a lumbar disc as a result of engaging in lifting activities." At trial, after Armstrong rested, he moved to "conform the pleadings to the proof." Armstrong's counsel argued in support of the motion that while the injury's "onset occurred" on May 11, 2001, as alleged in the pleadings, whether the "onset was the result of repetitive trauma or that separate lifting incident on May 11th, that caused the herniation[,] is the determination for the trier of fact." Armstrong's counsel told the court that there was evidence in the record that the trier of fact could find that Armstrong's condition requiring surgery resulted from either "repetitive trauma" or a "single episode."

Watkins' counsel objected to the motion to conform the pleadings to the proof because, he said, he did not understand what Armstrong's counsel was seeking and because the motion was made on the day of trial. The exchange between Armstrong's counsel and the trial judge which followed the motion makes it clear that Armstrong's counsel was not seeking to actually file another amended petition or claim, and we quote his comment: "[The] trier of fact [is] to determine [whether the movant has] come up with another theory[;] then, the pleadings are conformed to whatever that [determination] is, so you don't have a variation between the pleadings and the proof." Armstrong's counsel also stated in this exchange, "[W]ith all of the gray areas in Workers' Compensation on date of injury, and repetitive trauma, and single episode, from a conservative standpoint, that's why we're making that motion to conform to the proof." The court then asked, "So, what do you want the amendment to say?" and Armstrong's counsel replied, "I'm not amending[; I move n]ot to amend, [but] to conform to the proof." The court denied the motion.

Following the trial, the court entered an order of dismissal because the injury was "not the product of an accident that happened on or about May 11, 2001." Armstrong appealed the trial court's decision to the Nebraska Workers' Compensation Court review panel, which affirmed the trial court's decision without a detailed opinion. Armstrong appeals.

ASSIGNMENTS OF ERROR

Armstrong asserts, reassigned and restated, that the review panel erred in (1) failing to find that the trial court abused its discretion in refusing to grant his motion to conform the pleadings to the proof, (2) affirming the trial court's finding that there was insufficient evidence to support an injury date of May 11, 2001, (3) affirming the trial court's finding that a repetitive cumulative trauma injury date cannot be established in the absence of expert medical opinion specifically identifying the date thereof, and (4) affirming the failure of the trial court to find the repetitive cumulative trauma date of his accident on the basis of the evidence adduced.

STANDARD OF REVIEW

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 compensation court do not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. McGowan v. Lockwood Corp., 245 Neb. 138, 511 N.W.2d 118 (1994).

Upon appeal to a Workers' Compensation Court review panel, the findings of fact made by a Workers' Compensation Court trial judge are not to be disturbed unless they are clearly wrong on the evidence or the decision was contrary to law. Hemmerling v. Happy Cab Co., 247 Neb. 919, 530 N.W.2d 916 (1995). As the trier of fact, the Nebraska Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony. Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 762 (1994).

In analyzing 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 successful party, who also receives the benefit of all inferences that may be drawn from the evidence. See Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).

A workers' compensation claimant bears the burden to establish a causal relationship between the claimant's alleged injury and his or her employment. U S West Communications v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998). The issue in regard to causation of an injury or disability is one for determination by the fact finder, whose findings will not be set aside unless clearly erroneous. Zessin v. Shanahan Mechanical & Elec., 251 Neb. 651, 558 N.W.2d 564 (1997).

ANALYSIS

Motion to Conform Pleadings to Proof.

Armstrong alleges that the trial court abused its discretion in overruling his motion to amend the pleadings to conform to the evidence. However, as earlier recounted, the trial record is clear that his counsel was not seeking leave to actually amend the pleadings. Rather, under the guise of a motion "to conform to the proof," Armstrong's counsel was suggesting that the trial court should determine whether the herniated disk was a product of repetitive trauma or of a specific incident. After denying this motion, the trial court decided the case, writing that the "first issue for the Court to resolve, as set out in the pretrial order, is whether [Armstrong] suffered injury on or about May 11, 2001, in an accident arising out of and in the course of his employment." The trial court found:

[Armstrong's] herniated lumbar disc may be the result of repetitive lifting performed at [Watkins], but it is not the product of an accident that happened on or about May 11, 2001. If it happened in August of 2001, and no physician says that it did, the Court believes that such an accident is too remote in time to have occurred "on or about May 11, 2001." The pleadings and pretrial order frame the issue. The Court does not find any expert opinion to the effect that [Armstrong] suffered injury arising out of his employment on or about May 11, 2001, and accordingly finds that [his] petition should be dismissed.

Thus, it appears from the order that the trial court, while acknowledging evidence supporting a repetitive trauma injury, did not decide whether the injury was the result of repetitive trauma, because the court found that the issue was narrowly framed by the pleadings and pretrial order to be whether the injury was the product of an accident that happened on or about May 11, 2001.

While the technical or formal rules of procedure do not bind the compensation court other than as provided in the Nebraska Workers' Compensation Act, see Neb.Rev.Stat. § 48-168(1) (Reissue 1998), it is nevertheless helpful to look to the statute dealing with "conform[ing] the pleadings to the proof," as Armstrong's counsel moved for the trial court to do. But,...

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    ...proof), disapproved on other grounds, Heiliger v. Walters & Heiliger, 236 Neb. 459, 461 N.W.2d 565 (1990); Armstrong v. Watkins Concrete Block, 12 Neb.App. 729, 685 N.W.2d 495 (2004) (reference to Neb.Rev.Stat. § 25-852 (Reissue 1995) in analyzing procedure regarding amendment to pleadings)......
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