Erving v. Tri-Con Industries

• Decision Date: 04 January 1982
• Docket Number: No. 44201,TRI-CON,44201
• Citation: 210 Neb. 339,314 N.W.2d 253
• Parties: Katherine ERVING, Appellant and Cross-Appellee, v.INDUSTRIES and Cornhusker Casualty Company, Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 253

314 N.W.2d 253

210 Neb. 339

Katherine ERVING, Appellant and Cross-Appellee, v. TRI-CON INDUSTRIES and Cornhusker Casualty Company, Appellees and Cross-Appellants.

No. 44201.

Supreme Court of Nebraska.

Jan. 4, 1982.

Syllabus by the Court

1. Workmen's Compensation: Appeal and Error. The Supreme Court is not free in workmen's compensation cases to weigh the facts anew. The Supreme Court's standard of review must accord 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: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact made by the Nebraska Workmen's Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor and he should have the benefit of every inference that can reasonably be drawn therefrom.

3. Workmen's Compensation: Evidence. The requirement of objective symptoms of an injury produced at the time of the accident is satisfied if the symptoms manifest themselves according to the natural course of such matters without any independent intervening cause being shown.

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

A. James McArthur, Lincoln, for appellant and cross-appellee.

Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees and cross-appellants.

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

KRIVOSHA, Chief Justice.

The appellant, Katherine Erving, appeals from a judgment of the Nebraska Workmen's Compensation Court, entered by the court on rehearing, which found that while Mrs. Erving suffered a compensatory injury for which she was entitled to temporary compensation, she failed to establish that as a result of the accident she suffered any disability beyond September 21, 1980. Accordingly, the Workmen's Compensation Court denied any recovery to Mrs. Erving beyond September 21, 1980. It is from this order that Mrs. Erving appeals. Her employer, Tri-Con Industries, has cross-appealed, maintaining that not only did Mrs. Erving fail to establish that she sustained any injury after September 21, 1980, but, in fact, failed to establish that she sustained any injury resulting from an accident arising out of and in the course of her employment, and is therefore not entitled to any recovery. We believe that the compensation court was correct in all respects and its judgment entered on rehearing should be affirmed.

Mrs. Erving was employed by Tri-Con Industries on May 20, 1979. Her duties consisted primarily of what the record describes as crimping snowmobile bungee cords as they passed along an assembly line. This work apparently required her to utilize a scissors-like device against which she would apply pressure with her left palm while crimping a small metal disk onto the bungee cord with her right hand. It appears from the evidence that Mrs. Erving would perform this function some 20 to 30 times each day.

According to the testimony, Mrs. Erving began to experience a numbness in the fingers of her left hand in 1979 after she started working at Tri-Con Industries. She stated that she was performing her usual employment duties when this numbness gradually began, and as she continued working it became worse and worse. She continued working until September 24, 1979, when the pain and numbness in her left hand prevented her from continuing with her employment duties.

Ultimately, Mrs. Erving was referred to Dr. Benjamin Gelber. He examined her and concluded that she was suffering from a carpal tunnel syndrome, caused by her employment. The record discloses that Mrs. Erving had no similar difficulty prior to her employment with Tri-Con Industries.

In November of 1979 Mrs. Erving was hospitalized and carpal tunnel release surgery was performed upon her hand. In January of 1980 Dr. Gelber suggested to Mrs. Erving that she could return to work, but she maintained that because of constant pain in her hand and wrist she was unable to perform her employment duties at Tri-Con Industries. Dr. Gelber was of the opinion that Mrs. Erving's employment aggravated a preexisting condition in her left wrist and made it symptomatic, thus requiring the surgery. He was, however, of the further opinion that there was no permanent disability and he knew of no reason why Mrs. Erving could not return to full-time employment.

Dr. George Hachiya testified that he examined Mrs. Erving prior to the hearing. In his opinion, Mrs. Erving was experiencing an hysterical conversion reaction which results in a patient converting emotional pain into a physical symptom. Dr. Hachiya's conclusion was based upon three interviews. The initial interview was done on September 4, 1980, and lasted for approximately 30 minutes; a second interview was conducted on September 13, 1980, and lasted for 20 minutes; and a final interview was conducted on September 18, 1980, and lasted for approximately 35 or 40 minutes. Although Dr. Hachiya testified that, in his opinion, Mrs. Erving was suffering from conversion hysteria, he admitted that a psychological test conducted by a Dr. Wayne Price noted the absence of la belle indifference, an important characteristic of conversion hysteria. Dr. Price indicated in his report to Dr. Hachiya that he could not state with certainty that Mrs. Erving had a conversion neurosis, though it was possible. Dr. Hachiya explained the difference in opinion by simply testifying that he did not agree with Dr. Price's conclusions. Dr. Hachiya did, however, testify that, in his opinion, Mrs. Erving still should be able to do some things but could not perform fine tasks or heavy lifting. He was unable to explain the reason for her condition.

In examining the order of the Workmen's Compensation Court, both as to its finding that Mrs. Erving suffered temporary disability, with which Tri-Con Industries disagrees, and with regard to the compensation court's refusing to find that Mrs. Erving suffered permanent injuries, with which Mrs. Erving disagrees, we must keep in mind certain basic rules involving decisions of the compensation court.

In Kudera v. Minnesota Mining & Manuf. Co., 201 Neb. 235, 238, 266 N.W.2d 915, 917 (1978), we said: "This court is not free in workmen's compensation cases 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 will not be set aside unless clearly wrong." And, further, in Buck v. Iowa Beef Processors, Inc., 198 Neb. 125, 127-28, 251 N.W.2d 875, 877 (1977), we said: "In...