Frank v. A & L Insulation

• Decision Date: 14 May 1999
• Docket Number: No. S-98-082,S-98-082
• Citation: 256 Neb. 898,594 N.W.2d 586
• Parties: Raymond L. FRANK, Appellee, v. A & L INSULATION and Farmers Insurance Group, Its Workers' Compensation Carrier, Appellants.
• Court: Nebraska Supreme Court

Page 586

594 N.W.2d 586

256 Neb. 898

Raymond L. FRANK, Appellee, v. A & L INSULATION and Farmers Insurance Group, Its Workers' Compensation Carrier, Appellants.

No. S-98-082.

Supreme Court of Nebraska.

May 14, 1999.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (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 order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. Workers' Compensation: Appeal and Error. Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong.

3. Workers' Compensation: Evidence: Appeal and Error. If the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court, an appellate court is precluded from substituting its view of the facts for that of the Workers' Compensation Court.

4. Workers' Compensation: Appeal and Error. Where the record presents nothing more than conflicting medical testimony, this court will not substitute its judgment for that of the compensation court.

5. Expert Witnesses. A conflict or contradiction regarding an expert's opinion need not result from opinions expressed by different experts.

6. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of evidence to support findings of fact made by the Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence.

7. Evidence: Appeal and Error. A trial court's ruling accepting or rejecting evidence will not be disturbed unless there is shown to be a clear abuse of discretion.

8. Expert Witnesses. Expert testimony should be stricken if it appears that the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from mere guess or conjecture.

9. Expert Witnesses. Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable the witness to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.

10. Expert Witnesses. There is nothing wrong with an expert witness expressing an opinion based on facts perceived by or made known to him. If a hypothetical question, calling for expert skill or knowledge, is so framed as to fairly and reasonably reflect the facts proved by any of the witnesses in the case, it will be sufficient.

11. 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.

12. Workers' Compensation: Expert Witnesses. If the nature and effect of a claimant's injury are not plainly apparent, then the claimant must provide expert medical testimony showing a causal connection between the injury and the claimed disability.

13. Workers' Compensation: Expert Witnesses. Although expert medical testimony need not be couched in the magic words of "reasonable medical certainty" or "reasonable probability," it must be sufficient as examined in its entirety to establish the crucial causal link between the plaintiff's injuries and the defendant's negligence.

14. Workers' Compensation: Statutes. While it is quite clear that a condition resulting from the cumulative effects of repeated work-related trauma has some characteristics of both an accidental injury and an occupational disease, the compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the statutory definition of accident.

15. Workers' Compensation: Words and Phrases. Under Neb.Rev.Stat. § 48-151(2) (Reissue 1998), an accident is defined as "an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury."

16. Workers' Compensation: Words and Phrases. The "unexpected or unforeseen" requirement of Neb.Rev.Stat. § 48-151(2) (Reissue 1998) is satisfied if either the cause was of an accidental nature or the effect was unexpected or unforeseen.

17. Workers' Compensation: Words and Phrases. The second specification of Neb.Rev.Stat. § 48-151(2) (Reissue 1998) requires that an employee's injury must occur "suddenly and violently" to be compensable.

18. Workers' Compensation: Words and Phrases. "Suddenly and violently" does not mean "instantaneously and with force." The specification "suddenly and violently" is satisfied if an injury occurs at an identifiable point in time, requiring the employee to discontinue employment and seek medical treatment.

19. Workers' Compensation: Words and Phrases. The third specification in Neb.Rev.Stat. § 48-151(2) (Reissue 1998), that an accident produced objective symptoms, is satisfied if the symptoms manifest themselves according to the natural course of such things without any independent intervening cause.

David A. Dudley and Darin J. Lang, of Baylor, Evnen, Curtiss, Grimit & Witt, for appellants.

Samuel W. Segrist, of Meister & Segrist, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

PROCEDURAL HISTORY

Raymond L. Frank worked for A & L Insulation (A & L) from 1990 until August 1995. Frank claims that during this time he sustained injuries to his wrists, elbows, and shoulders due to the repetitive motions Frank subsequently filed a petition for further review. We granted Frank's petition for further review and now reverse the Court of Appeals' decision and remand the cause with directions.

he was required to use while employed at A & L. As a result, Frank filed suit against A & L in the Nebraska Workers' Compensation Court for the injuries he allegedly sustained during the course of his employment. The compensation court determined the evidence established causation and awarded Frank $347.50 per week starting from the date of his disability, August 8. The compensation court also ordered A & L to pay for all future medical expenses relating to Frank's wrists, elbows, and shoulders. The Workers' Compensation Court review panel affirmed. A & L thereafter appealed to the Nebraska Court of Appeals and argued that Frank failed to prove his injuries were caused by or arose out of and in the course of his employment. The Court of Appeals reversed, finding no evidence of causation. Frank v. A & L Insulation, No. A-98-082, 1998 WL 755461 (Neb.App. Oct. 27, 1998) (not designated for permanent publication).

SUMMARY OF FACTS

Frank was 58 years old at the time of trial. After high school, Frank worked as a plumber, served in the military for a short time, then worked as a farmer until approximately 1963. From 1964 to 1972, Frank delivered beer to stores for a living. He then worked as a contractor in the building trade until 1983. From 1983 until 1990, Frank was employed doing cement work, roofing, and general carpentry. In 1990, Frank went to work for A & L, where he worked until August 8, 1995. Frank testified that when he went to work for A & L he was in good physical condition, having no problems with his wrists, elbows, or shoulders.

Frank's work for A & L involved various tasks such as installing vinyl windows, door replacements, new doors, and kitchen cabinets; putting up drywall; sanding; painting; and breaking up concrete and stucco. A large part of Frank's work required him to use his hands and arms, including prying out old windows, installing new windows, sanding and painting drywall, and using various tools such as hammers, pry bars, nail pullers, saws, and high-torque screw guns. Almost all of Frank's daily work required hammering, lifting, and using a screw gun above his head and in other awkward positions. When Frank initially worked for A & L, he installed windows ranging from 20 to 25 pounds each. However, beginning in 1993 or 1994, Frank was required to install larger and heavier windows. On some of the larger windows, Frank used a screw gun to install up to 200 2 1/2-inch and 3 1/2-inch screws.

In 1993, Frank went to see Thomas Rohrick, D.C., a chiropractor, complaining of generalized pain in his shoulders. Frank was first treated by Dr. Rohrick from March 3 through 29. During this period of treatment, Frank stated that he was experiencing shoulder pain in the area where the shoulders meet the neck, later explained by Dr. Rohrick as the trapezius muscle. Given the location of the pain, Dr. Rohrick ruled out any rotator cuff problems or hand or wrist injuries. Instead, Dr. Rohrick diagnosed Frank as having brachial neuritis/radiculitis dislocation (subluxation) of the cervical spine, myofibrositis and myofascitis, and rib strain/sprain.

Dr. Rohrick also treated Frank for a lower back injury he sustained while lifting a window. The injury occurred on October 7, 1994, and Frank was treated by Dr. Rohrick from October 10 through December 2. Dr. Rohrick diagnosed Frank with a dislocation (subluxation) of the lumbar spine and spondylarthritis and lumbar strain/sprain.

Dr. Rohrick and Frank both testified that Frank recovered from these injuries at the conclusion of Dr. Rohrick's treatment.

The record also shows that there was no permanent impairment or disability after the March 1993 and December 1994 treatments. During both series of treatments, Frank never complained of any problems with his wrists or shoulders, which might have indicated rotator cuff tears or carpal...