Davis v. Western Elec.

• Citation: 210 Neb. 771,317 N.W.2d 68
• Decision Date: 12 March 1982
• Docket Number: No. 44026,44026
• Parties: Quinceola H. DAVIS, Appellant, v. WESTERN ELECTRIC, Appellee.
• Court: Nebraska Supreme Court

Page 68

317 N.W.2d 68

210 Neb. 771

Quinceola H. DAVIS, Appellant, v. WESTERN ELECTRIC, Appellee.

No. 44026.

Supreme Court of Nebraska.

March 12, 1982.

Syllabus by the Court

1. Workmen's Compensation: Appeal and Error. In reviewing workmen's compensation cases this court is not free to weigh the facts anew. Our standard of review accords to the findings of the compensation court the same force and effect as a jury verdict in a civil case and they will not be set aside unless clearly wrong.

2. Workmen's Compensation: Evidence. In testing the sufficiency of the evidence to support the findings of the compensation court, every controverted fact must be resolved in favor of the successful party and such party should have the benefit of every inference that can be drawn therefrom.

3. Workmen's Compensation: Appeal and Error. As a general rule, where the record presents nothing more than conflicting medical testimony, this court will not substitute its judgment for that of the compensation court.

4. Workmen's Compensation: Evidence: Proof. The plaintiff in a workmen's compensation case must prove by a preponderance of the evidence that his disability is the result of an accident arising out of his employment.

5. Workmen's Compensation: Expert Witnesses. Unless the character of an injury is objective, that is, where its nature and effect are plainly apparent, then it is a subjective condition necessitating expert testimony.

6. Workmen's Compensation: Expert Witnesses. An allegation that an employee suffers from a psychogenic pain disorder raises a subjective condition and requires competent medical testimony to show a causal connection between the alleged injury, the employment, and the disability.

7. Expert Witnesses. Triers of fact are not required to take the opinions of experts as binding on them.

8. Expert Witnesses. The value of an opinion of an expert is no stronger than the facts upon which it is based.

9. Workmen's Compensation. If psychiatric treatment is prescribed, refusal may be deemed unreasonable in view of the absence of any physical suffering in the treatment.

Paul W. Deck of Deck & Deck, Sioux City, Iowa, for appellant.

James L. Quinlan of Fraser, Stryker, Veach, Vaughn, Meusey, Olson, Boyer & Bloch, P. C., Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

The plaintiff, Quinceola H. Davis, filed this action in the Nebraska Workmen's Compensation Court seeking an award of benefits for injuries which she sustained to both hands, wrists, and arms while performing duties as a machine operator in the defendant Western Electric's Omaha plant. A single-judge court determined that her injuries were compensable, but determined that the plaintiff had failed to prove any temporary or permanent disability and limited the award to the payment of bills for medical services. Following plaintiff's application, a rehearing before a three-judge panel was held, and the panel found that Mrs. Davis had failed to sustain her burden of proving that she was entitled to any disability compensation. Except for ordering payment of several minor medical bills, the award on rehearing affirmed the action of the one-judge court in denying disability benefits.

In the early part of January 1979 Mrs. Davis began operating a particular assembly machine in the course of her employment by Western Electric. This operation required repeated application of pressure with both hands between 800 and 1,200 times daily. While performing this function, she began to experience pain, swelling, and a tingling sensation in her wrists and hands. The record indicates that Mrs. Davis first reported this problem to Western Electric's medical department on January 23, 1979. She was treated with hot soaks, and was directed to return the next day for an appointment with the company physician. On January 24th she did return and was examined by a company doctor who prescribed hot soaks at home and gave her a wristlet for her left wrist. She again came to the plant medical department on the 25th, complaining of pain in both wrists. Continued soaks were suggested, as well as the use of wristlets. She was also given a temporary medical restriction that she should only use her hands to tolerance.

Dr. Lee B. Grant, head of the Western Electric medical department, stated that the employee's supervisor is notified of such a medical restriction and is instructed not to allow the employee to do any task that aggravates the condition. The level of pain to be tolerated is up to the individual employee. On January 31st, following continued complaint, Mrs. Davis was placed on a temporary restriction of no use of the right hand. The restriction was returned to use of both hands to tolerance on February 7th. Her medical restriction was changed on February 13th to minimal use of hands and wrists, with no repetitive use of hands and wrists, and she was assigned to a sorting operation of some sort. Due to continued complaints, Mrs. Davis was moved to the "restriction room" or "convalescent room" where she would do file labeling which involved placing stickers on envelopes. She continued in this job until around the first of June.

About this time, the various physicians who had been seeing Mrs. Davis, both Dr. Grant, the company doctor, and Dr. David W. Minard, a personal physician and orthopedic surgeon of her choice, concluded that her hands were all healed up and they wanted her to take some psychological testing. She refused these tests and Dr. Minard released her, telling her there was nothing more that he could do, and Dr. Grant released her to go back to her original department. However, she was not placed on the assembly machine, but was given a job stamping dates on finished conductors with a rubber inked stamp. She complained that this caused her pain so she went to yet another doctor, Dr. William H. Johnson, who had treated her in 1975. On June 12th Mrs. Davis called her supervisor and told him that her doctor had advised her to rest her hands and wrists and that she would not be in for work. He responded that if she failed to come in she would not be paid and would probably get fired. He also told her that if she would come in he would not make her work, but she could just sit there. Sometime, around the 22nd of June she received a letter from Western Electric advising her that she was terminated.

The Western Electric medical file contains approximately 65 entries from the period January 23, 1979, to June 25, 1979. Some of these entries indicate a conference with one of the plaintiff's outside physicians, but for the most part they represent direct contacts--complaints and treatments--with Mrs. Davis.

The first outside physician who examined Mrs. Davis was Dr. Michael Morrison, an orthopedic surgeon. He did not testify, nor was his deposition taken, and therefore there is a great deal of conflict regarding his diagnosis and treatment. Following the first examination by Dr. Morrison on February 6, 1979, Mrs. Davis testified that the doctor put steel splints on her hands and wrists and advised "complete rest" for her hands, which she interpreted to mean performing no work at all. Dr. Grant, on the other hand, stated that he had spoken to Dr. Morrison and that the recommendations merely involved restricting Mrs. Davis' activities to work involving only "light gripping." It should be noted, however, that the medical file reveals that she was absent from work from February 6th until February 13th. There is a memo in the record dated February 28 from Dr. Morrison which states that Mrs. Davis had "flexor tenosynovitis both wrists" which may or may not have been caused by her job but which was aggravated by working the "punch press." It also contained the recommendation that Mrs. Davis "be allowed to continue with the present limitations." To interpret "present limitations," we must look at a letter dated February 16th from an associate of Dr. Morrison, Dr. Richard P. Murphy, who had seen Mrs. Davis on February 16th. He determined that Mrs. Davis suffered from "synovitis in flexor tendons both wrists" and recommended "discontinuing active repetitive motions of the wrist, to immobilize the wrists in wrists splints and to return for follow-up evaluation in two weeks time." It was at or near this time that her employer placed Mrs. Davis under "minimal use of hands and wrists" and "no repetitive use of hands and wrists" limitation and moved her to the "detailing" or sorting job. It is apparent that Mrs. Davis returned in 2 weeks for further evaluation as reflected by Dr. Morrison's memo, but the record does not disclose that she ever consulted that office again.

Mrs. Davis elected to see yet a third doctor, Dr. David Minard, an orthopedic surgeon, who examined Mrs. Davis on five occasions, the first being March 12, 1979. After this initial visit Dr. Minard indicated in a letter to Western Electric that he concurred with Dr. Morrison's treatment but felt that nerve conduction studies should be performed. He also recommended that Mrs. Davis could continue to do work "which is feasible as long as she wears the wrist splints." Thereafter, Mrs. Davis was referred to Methodist Hospital where an EMG and nerve conduction studies were done, resulting in a finding that Mrs. Davis was "within the limits of normal." Following the fourth examination, Dr. Minard referred Mrs. Davis to Dr. Jerrad J. Hertzler, a neurologist, who found Mrs. Davis' performance during neurologic testing to be "bizarre," and concluded that no objective evidence of a neurologic deficit existed and that any deficits present were of a "nonorganic type." His recommendation was for further evaluation, including "psychiatric evaluation."

Dr. Minard's final visit took place on May 15, 1979, at which time he informed Mrs. Davis that she should see a clinical psychologist to take the Minnesota...