Dyer v. Hastings Industries, Inc., S-96-398

• Decision Date: 24 April 1997
• Docket Number: No. S-96-398,S-96-398
• Parties: Robert E. DYER, Appellant, v. HASTINGS INDUSTRIES, INC., and CNA Insurance Companies, Appellees.
• Court: Nebraska Supreme Court

Page 348

562 N.W.2d 348

252 Neb. 361

Robert E. DYER, Appellant, v. HASTINGS INDUSTRIES, INC., and CNA Insurance Companies, Appellees.

No. S-96-398.

Supreme Court of Nebraska.

April 24, 1997.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing.

2. Workers' Compensation: Appeal and Error. The findings of fact made by a workers' compensation judge on original hearing have the effect of a verdict and are not to be disturbed on appeal unless clearly wrong.

3. 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 or occurring in the course of the employment proximately caused an injury which resulted in disability compensable under the act.

4. Workers' Compensation: Words and Phrases. In all workers' compensation cases, an accident shall be construed to mean an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.

T.J. Hallinan, of Cobb, Hallinan & Ehrlich, P.C., Lincoln, for appellant.

Dallas D. Jones, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and LIKES, D.J.

LIKES, District Judge.

Robert E. Dyer appeals from an order of affirmance on review by a Nebraska Workers' Compensation Court review panel affirming the trial court's dismissal of Dyer's action to recover workers' compensation benefits for mental depression that arose concurrent to his employment with Hastings Industries, Inc. We affirm.

ASSIGNMENT OF ERROR

Restated, Dyer contends that the trial court erred by failing to find he was entitled to workers' compensation benefits for the mental depression that arose during the course of his employment with Hastings.

STANDARD OF REVIEW

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the single judge who conducted the original hearing. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); Wilson v. Larkins & Sons, 249 Neb. 396, 543 N.W.2d 735 (1996).

The findings of fact made by a workers' compensation judge on original hearing have the effect of a verdict and are not to be disturbed on appeal unless clearly wrong. Hale v. Standard Meat Co., 251 Neb. 37, 554 N.W.2d 424 (1996).

FACTS

Dyer began working for Hastings on April 29, 1959. Hastings is insured by CNA Insurance Companies. Dyer held a nonmanagement position in Hastings' shipping, receiving, and warehouse division. His duties included comparing freight invoices to deliveries, shuttling parts from the warehouse to the manufacturing area, and assisting with inventories. Over time, Dyer ascended to the position of group leader.

During 1991, the then 61-year-old Dyer began to experience headaches, loss of sleep, and loss of appetite. Dyer attributed these conditions to job stress.

At about the same time, Hastings hired a new manager, Gordon Flowers. Flowers became Dyer's immediate supervisor. Flowers instituted policy changes in the shipping and receiving division that affected the manner in which Dyer was to perform his work.

After Hastings hired Flowers, Dyer made several recording errors in his receiving ledger. Hastings took note of Dyer's errors and notified him that future errors would not be tolerated. Then, on May 4, 1992, citing Dyer's errors, Hastings demoted Dyer, reducing his pay by 50 cents an hour and removing him from the group leader position.

On May 7, 1992, management asked Dyer to shuttle parts to the floor, assist with United Parcel Service delivery, and begin preparations for an inventory. This was not the first time Dyer had been asked to perform each of these duties. The record reflects that Hastings' manager, Richard Peck, told Dyer, "You've got to get it done." Dyer, who believed management was intentionally attempting to overwhelm him, responded, "Well, I can't do it all."

Dyer took medical leave from Hastings because of the depression he contends he experienced as a result of the events of May 7, 1992. At that time, Dyer described himself as emotionally upset, unstable, and disgruntled. He testified that he felt worthless and rejected, experienced memory loss, and entertained suicidal and homicidal thoughts.

Dr. Reynaldo de los Angeles examined Dyer shortly thereafter. In his report, Dr. de los Angeles wrote that Dyer's "depression is work-related" and that his "emotional problems were definitely related to the conditions of his place of employment."

Although Hastings had not asked Dyer to leave, he tendered his resignation on May 12, 1993. Thereafter, on June 17, Dyer filed suit in the Workers' Compensation Court, seeking workers' compensation benefits for the depression that arose during the course of his employment with Hastings. In his petition to the trial court, Dyer contended that on or about May 1, 1992, he suffered "personal injuries in an accident arising out of and in the course of his employment with ... Hastings...." Although the specific nature of the accident is not detailed in...