Edmonds v. IBP, Inc.
| Decision Date | 31 January 1992 |
| Docket Number | No. 91-334,91-334 |
| Citation | 479 N.W.2d 754,239 Neb. 899 |
| Parties | Pamela S. EDMONDS, Appellant, v. IBP, INC., Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Proof. In a workers' compensation case, the plaintiff must establish by a preponderance of the evidence that the injury for which an award is sought arose out of and in the course of employment.
2. Workers' Compensation: Proof. An award from the Workers' Compensation Court cannot be based on mere speculation or possibility.
3. Workers' Compensation: Evidence: Expert Witnesses. Expert medical testimony must be based on a reasonable degree of medical certainty or a reasonable probability.
4. Workers' Compensation: Evidence: Expert Witnesses. While expert medical testimony need not be couched in the magic words "reasonable degree of medical certainty or reasonable probability," such testimony couched in terms of possibility is not sufficient.
5. Workers' Compensation: Evidence: Expert Witnesses. Expert medical testimony based on "could," "may," or "possibly" lacks the definiteness required to support an award from the Workers' Compensation Court.
Phillip G. Wright, of Quinn & Wright, Omaha, for appellant.
Marie L. Welsh, Sioux City, Iowa, for appellee.
The plaintiff-appellant employee, Pamela S. Edmonds, challenges the adequacy of the award of benefits for 6 percent permanent partial disability of each hand from the defendant-appellee employer, IBP, Inc. More specifically, Edmonds claims the Workers' Compensation Court erred in failing to (1) consider certain evidence, (2) find that her thoracic outlet syndrome was proximately caused by her employment, and (3) find that she suffered a body-as-a-whole impairment which reduced her earning capacity. We affirm.
Edmonds, now approximately 30 years of age, had been working at IBP for nearly 2 1/2 years trimming the fat and tendons from various cuts of meat as they came by her on a conveyor belt. After trimming the cuts, which then weighed between 7 and 20 pounds, she threw them onto another belt. She generally worked 8-hour shifts, but on occasion would work 16 hours.
She had no disabilities related to her employment until September 19, 1988, when, she testified, "My arm would go dead and no feeling at all, and my hands tingled and would go numb and my wrists had pain in them." The compensation court's pretrial order of March 13, 1990, recites the parties agreed that "as a result of an accident arising out of and in the course of her employment by" IBP, Edmonds developed bilateral carpal tunnel syndrome, which required tunnel release surgery on her right and left wrists.
It is Edmonds' assertion that in addition to the stipulated injuries, she also suffers from thoracic outlet syndrome. The record describes the syndrome, or condition, as occurring when nerves get pinched at the space between several muscles at a point between the first rib and the clavicle. The condition develops when the "space gets narrowed, and there's less room for the nerves and the vascular structures to sit comfortably in that space," causing pain, numbness, or tingling.
Edmonds testified that the physician who performed the tunnel release surgery referred her to Dr. Keith McLarnan, who diagnosed the thoracic outlet syndrome. McLarnan testified that in addition to bodybuilding, peculiarities in the structure of the neck, and bony prominences on the cervical vertebrae, repetitive motion "would possibly aggravate" the condition.
When asked whether, based on a reasonable degree of medical certainty, the condition was caused by Edmonds' work, McLarnan stated that "her employement [sic] may have been a factor in the development of her thoracic outlet syndrome." However, McLarnan also revealed that he did not know what Edmonds' employment entailed, saying:
It's pretty vague, from my history. That she was working in a packing plant; and I think, frankly, that's about all the more precise information I have about what she did.
Q. Okay. Do you know what she did for the packing plant?
A. I didn't specify precisely in the history what she did.
On April 13, 1990, Edmonds moved to amend the pretrial order to include Dr. Paul Collicott as an expert witness and "all medical records, reports ... which ... Collicott may have regarding" her. On April 19, 1990, Edmonds further moved for an order to take Collicott's deposition, since he would be unavailable for the scheduled trial. IBP objected to the first motion, arguing that a report in which Collicott indicates that Edmonds has thoracic outlet syndrome was not timely filed. According to the transcript, Edmonds had in fact violated rule XX of the Nebraska Workers' Compensation Court's Rules of Procedure (1989), which requires all medical reports to be served on the opposing party, "in all events, within 30 days following the date the pretrial order is received and filed if the party intends to offer the report as evidence." She does not claim otherwise.
On April 30, 1990, the compensation court entered two separate orders. In the first, the court ruled that Collicott could be deposed and the deposition submitted to the court subsequently to the scheduled trial. In the second, the court amended its pretrial order so as to permit Edmonds to include Collicott as an expert witness "and any and all medical records, reports, medical narrative, prognosis, diagnosis, and bills which ... Collicott may have regarding ... Edmonds."
At the May 3, 1990, trial, IBP again objected to the admission of the disputed medical report, arguing once more that it had not received the report within the required 30 days. The compensation court ruled:
THE COURT: ... And with regard to [the report], you are taking ... Collicott's deposition, is that correct?
[Edmonds' counsel]: Yes, Your Honor, that is scheduled.
THE COURT: And you have received previous permission to do that by Judge Cavel, isn't that correct?
[Edmonds' counsel]: Yes, Your Honor.
THE COURT: All right, so do you have a date for that?
[Edmonds' counsel]: May 23rd, isn't that correct?
[IBP's counsel]: That's right, and I've cleared that with my calendar and that's satisfactory.
THE COURT: All right. In that event, the objection to [the report] will be sustained....
At Collicott's deposition, Edmonds nonetheless caused the medical report to be marked as an exhibit and offered it as evidence. IBP objected, pointing out that the court had ruled the report inadmissible. Edmonds argued that the only reason the court sustained the trial objection to the report was that Collicott was going to be deposed. Whatever the import of that argument, the report is found as an exhibit at the end of Collicott's deposition; the record contains no ruling on IBP's deposition objection to the report.
During the deposition, Edmonds had Collicott confirm that in the disputed report, he had written that she would have "70 percent partial or complete relief of her symptoms" if she had surgery. When asked whether, within reasonable medical certainty, "the repetitive action which you've described and the work history" were connected, Collicott responded affirmatively, saying that if what Edmonds told him was true, the "type of work that she did may have well precipitated this syndrome." In that regard, the report states that from a historical standpoint, "it appears that the thoracic outlet syndrome appears to be related to the repetitive-type of work that [Edmonds] was doing at [IBP]."
Dr. Edward Schima, a neurologist, testified that although Edmonds had musculoskeletal pain in her left arm and it was possible she had thoracic outlet syndrome, he did not "see it's any more possible she should have it than any of us...." Schima further testified that his examination revealed nothing abnormal and that in his opinion there was nothing to indicate that Edmonds suffered from the condition.
The compensation court concluded Edmonds had "failed to prove preponderantly that she sustained a thoracic outlet syndrome as a result of her accident and injury of September 19, 1988."
Edmonds first alleges that the compensation court erred in failing to consider the disputed Collicott medical report.
In support of her argument, Edmonds refers to Miner v. Robertson Home Furnishing, 236 Neb. 514, 462 N.W.2d 96 (1990), appeal after remand 239 Neb. 525, 476 N.W.2d 854 (1991). Therein, the plaintiff attempted to admit a note as part of an exhibit at his deposition, which was taken after the oral portion of the trial. The defendants objected to the exhibit. The compensation court admitted the deposition into evidence, without indicating whether it considered the objection or used the note, and dismissed the case. This court wrote at 236 Neb. at 517, 462 N.W.2d at 98:
We are not faced with a question of accepting the factual findings of the Workers' Compensation Court, but with insufficient information to determine whether the court adequately made factual findings on this issue. We must remand with directions to the court to rule on the receipt of this evidence.
The controlling difference between Miner, supra, and the case now before us is that here, the compensation court ruled on the objection to the medical report and excluded it. Miner thus has no application to the matter at hand.
Although consistency in evidential rulings is "a consummation Devoutly to be wish'd," the pretrial order concerning the disputed Collicott report, whatever it may have meant, was superseded by the trial ruling, which, in the proper exercise of the compensation court's discretion, upheld its rule of practice. Indeed, Edmonds does not argue that the trial ruling was incorrect; she merely attempts to circumvent it. This she may not do.
Moreover, the disputed report adds nothing to Collicott's deposition testimony; to write that Edmonds' thoracic outlet...
To continue reading
Request your trial
-
Gonzales v. Neb. Pediatric Practice, Inc.
...Expert medical testimony must be based on a reasonable degree of medical certainty or a reasonable probability. Edmonds v. IBP, Inc. , 239 Neb. 899, 479 N.W.2d 754 (1992). An objection to the opinion of an expert based upon the lack of certainty in the opinion is an objection based upon rel......
-
State v. Kuehn
...or probability." See Paulsen v. State, 249 Neb. at 121, 541 N.W.2d at 643. Such words are not necessary. See, Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754 (1992); Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991). The expert's opinion must be sufficiently definite and relev......
-
Svehla v. Beverly Enterprises, A-96-779
...of the evidence that the injury for which an award is sought arose out of and in the course of employment. Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754 (1992). The determination of causation is ordinarily a matter for the trier of fact, whose factual findings will not be set aside unl......
-
Renne v. Moser
...§ 27-702 (Reissue 1989) (expert's opinion to assist fact finder). In light of the foregoing, we stated in Edmonds v. IBP, inc., 239 Neb. 899, 479 N.W.2d 754 (1992): "[A] medical expert's testimony need not be couched in the magic words 'reasonable degree of medical certainty or reasonable p......
-
So You're Telling Me There's a Chance: an Examination of the Loss of Chance Doctrine Under Nebraska Law
...1993 Neb. App. LEXIS 283 (Neb. Ct. App. June 15, 1993). [153]Rankin, 275 Neb. at 787, 749 N.W.2d at 469. [154]Edmonds v. IBP, Inc., 239 Neb. 899, 904-05, 479 N.W.2d 754, 757 (1992) (quoting Hohnstein v. W.C. Frank, 237 Neb. 974, 982, 468 N.W.2d 597, 603 [155]Id. at 905, 479 N.W.2d at 757 (q......