Cox v. Fagen Inc.

• Decision Date: 22 March 1996
• Docket Number: No. S-95-673,S-95-673
• Citation: 249 Neb. 677,545 N.W.2d 80
• Parties: Richard E. COX, Appellee, v. FAGEN INC. and St. Paul Fire and Marine Insurance Company, Appellants.
• Court: Nebraska Supreme Court

Page 80

545 N.W.2d 80

249 Neb. 677

Richard E. COX, Appellee, v. FAGEN INC. and St. Paul Fire and Marine Insurance Company, Appellants.

No. S-95-673.

Supreme Court of Nebraska.

March 22, 1996.

Syllabus by the Court

1. Workers' Compensation: Words and Phrases. Under the provisions of Neb.Rev.Stat. § 48-101 (Reissue 1993), an injury is accidental if either its cause was accidental in character or its effect was unexpected or unforeseen, it happened suddenly and violently, and the occurrence produced at the time objective symptoms of injury.

2. Workers' Compensation: Proof: Words and Phrases. There are two components to the "arising out of and in the course of employment" test; the term "arising out of" describes the accident and its origin, cause, and character, that is, whether it resulted from the risks arising within the scope of the employee's job; the term "in the course of" refers to the time, place, and circumstances surrounding the accident. The two phrases are conjunctive, and in order to recover under the Nebraska Workers' Compensation Act, a claimant must establish by a preponderance of the evidence that both conditions exist.

3. Workers' Compensation: Proof. The "in the course of" requirement tests the work connection as to the time, place, and activity; that is, it demands that the injury be shown to have arisen within the time and space boundaries of employment and in the course of an activity whose purpose is related to employment.

4. Workers' Compensation: Words and Phrases. The "arising out of" employment requirement is primarily concerned with causation of an injury.

5. Proximate Cause: Trial. Determination of causation is ordinarily a matter for the trier of fact.

6. Workers' Compensation: Appeal and Error. Factual determinations by the Nebraska Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous.

7. Workers' Compensation. Injuries arising out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. When the employee has a preexisting physical weakness or disease, this employment contribution may be found in placing the employee in a position which precipitates the effects of the condition by strain or trauma.

8. Workers' Compensation. Preexisting disease or infirmity of the employee does not disqualify a claim under the "arising out of employment" requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought.

9. Workers' Compensation: Proof. In a workers' compensation case involving a preexisting condition, the claimant must prove by a preponderance of evidence that the claimed injury or disability was caused by the claimant's employment and is not merely the progression of a condition present before the employment-related incident alleged as the cause of the disability. Such claimant may recover when an injury, arising out of and in the course of employment, combines with a preexisting condition to produce disability, notwithstanding that in the absence of the preexisting condition no disability would have resulted.

10. Workers' Compensation. Neb.Rev.Stat. § 48-121(2) (Reissue 1993) of the Nebraska Workers' Compensation Act provides in part that for disability partial in character, the compensation shall be 66 2/3 percent of the difference between the wages received at the time of the injury and the earning power of the employee thereafter; the statute does not provide for consideration of past wage history, whether the claimant was employed in a temporary position or otherwise.

11. Workers' Compensation. Whether a workers' compensation claimant has sustained a disability which is total or partial and which is temporary or permanent is a question of fact.

12. Workers' Compensation. Generally, whether a workers' compensation claimant has reached maximum medical improvement is a question of fact.

Appeal from the Nebraska Workers' Compensation Court. Affirmed.

Douglas J. Peterson and Samantha B. Trimble, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellants.

James R. Harris and Lee S. Loudon, of Harris Law Offices, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

The Nebraska Workers' Compensation Court ordered the defendants-appellants, the employer Fagen Inc. and its workers' compensation carrier, St. Paul Fire and Marine Insurance Company, to pay the plaintiff-appellee, the employee Richard E. Cox, benefits as detailed later herein because of injuries Cox sustained in putting on a pair of coveralls while at his workplace. The defendants thereupon appealed to the Nebraska Court of Appeals, arguing, in summary, that the compensation court erred in (1) concluding that Cox suffered a compensable injury, (2) calculating his wage rate, and (3) determining the benefits due him. On our own motion, we removed the appeal to this court.

SCOPE OF REVIEW

A judgment, order, or award of the 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 judgment, order, or award; or (4) the findings of fact by the compensation court do not support the order or award. Pettit v. State, 249 Neb. 666, 544 N.W.2d 855 (1996); Toombs v. Driver Mgmt., Inc., 248 Neb. 1016, 540 N.W.2d 592 (1995); Buckingham v. Creighton University, 248 Neb. 821, 539 N.W.2d 646 (1995); Neb.Rev.Stat. § 48-185 (Reissue 1993).

FACTS

Cox began working for Fagen in September 1993 as an electrician. His duties included lifting large amounts of wire and pulling the wire through pipes, tasks which required frequent bending, walking, twisting, and climbing.

On December 27, 1993, Cox drove to a jobsite to check a temporary power board. When he arrived at the building, he got out of the truck, went inside, took off his one-piece coveralls, and inspected the board. Afterward, he went to put his coveralls back on; as he lifted his leg to do so, he felt a sharp pain in his back and fell against some crates. Cox testified that he had lifted his leg 3 to 3 1/2 feet to put on his coveralls and that this process involved bending and twisting. A fellow employee came upon Cox after his injury and drove him to the office, where the injury was reported. Cox was then taken to a hospital emergency room for treatment.

Following his hospital treatment, Cox sought treatment from an orthopedist, who ordered a study of Cox's lumbar area, which was performed on January 31, 1994. The study indicated some bulging of two lumbar disks and a small protrusion of another lumbar disk which was touching the left anterior aspect of the thecal sac. Because the study indicated that Cox could have nerve trouble and was not getting any better with the treatment provided, the orthopedist referred Cox to a neurologist. The neurologist advised the orthopedist that Cox had a nerve root irritation in the low back and that the study was strongly suggestive of a herniated disk at L1-2. The orthopedist considered the neurologist's findings to be significant in that they probably indicated the cause of Cox's pain.

Prior to Cox's workplace injury, he had seen a chiropractor for treatment for pain in his low back and left leg. The chiropractor treated Cox from June 18 through July 6, 1992, and on March 10 and May 3 and 17, 1993. The orthopedist testified that the injuries Cox reported to the chiropractor were the same injuries that Cox sustained on December 27, 1993.

In March 1994, Fagen offered Cox what Fagen considered to be a light-duty job; as he needed the money, Cox decided to try it, despite the fact that the orthopedist had advised him to remain off work until May 31. On March 29, 1994, Cox reported to work. His duties included "terminating motors," an activity which required bending and twisting on a constant basis. After that day's work, Cox experienced pain in his back and had trouble sleeping, but reported to work the next day. There is conflicting testimony as to what then transpired, but it is undisputed that Cox did not return to work thereafter. Cox testified that after reporting to work the second day, he asked for a job that did not require as much twisting and bending, but that his request was denied and he went home. A former Fagen employee stated that the reason Cox wanted a different job was because it was too cold to terminate motors outside. On March 30, Cox wrote Fagen a letter offering to return if there was light-duty work, but never received a response.

The vocational rehabilitation analysis agreed to by Cox and Fagen, and subsequently approved by the compensation court, called for Cox to attend school at Southeast Community College, pursuing a degree in electronics service technology.

The parties also agreed that an analysis of Cox's loss of earning capacity should be made. In performing the analysis, it was assumed that Cox was earning $600 per week at the time of his injury. Based upon the assumption that Cox was receiving $600 per week, the analyst concluded that Cox had suffered a 60-percent loss of earning capacity because of the injury he suffered on December 27, 1993. (The compensation court found that at the time of the injury, Cox was receiving an average weekly wage of $670.23.)

COMPENSABILITY OF INJURY

In urging that Cox did not sustain a compensable injury, the defendants assert that the injury did not result from an accident arising out of and in the course of employment, as required by Neb.Rev.Stat. § 48-101 (Reissue 1993). See, Johnson v. Holdrege Med. Clinic, 249 Neb. 77, 541 N.W.2d 399 (1996); Mauser v. Douglas & Lomason Co., 192...