Leitz v. Roberts Dairy

• Decision Date: 15 February 1991
• Docket Number: No. 90-343,90-343
• Parties: Elizabeth LEITZ, Administrator of the Estate of Kenneth E. Leitz, Deceased, et al., Appellees, v. ROBERTS DAIRY and Underwriters Adjustment Company, Appellants.
• Court: Nebraska Supreme Court

Page 601

465 N.W.2d 601

237 Neb. 235

Elizabeth LEITZ, Administrator of the Estate of Kenneth E. Leitz, Deceased, et al., Appellees, v. ROBERTS DAIRY and Underwriters Adjustment Company, Appellants.

No. 90-343.

Supreme Court of Nebraska.

Feb. 15, 1991.

Syllabus by the Court

1. Workers' Compensation: Evidence: Appeal and Error. In determining whether the evidence is sufficient to support an award by the compensation court, the evidence must be considered in the light most favorable to the successful party.

2. Workers' Compensation. As the trier of fact, the compensation court is the sole judge of the credibility of witnesses and the weight to be given their testimony.

3. Workers' Compensation. When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer.

4. Workers' Compensation: Words and Phrases. The terms "injury" and "personal injuries" shall not be construed to include disability or death due to natural causes but occurring while the employee is at work, nor to mean an injury, disability, or death that is the result of a natural progression of any preexisting condition. Neb.Rev.Stat. § 48-151 (Reissue 1988).

5. Workers' Compensation: Proof. The claimant shall have a burden of proof to establish by a preponderance of the evidence that an unexpected or unforeseen injury was in fact caused by the employment.

6. Workers' Compensation. In cases under the Workers' Compensation Act involving heart attacks, the principal issue is usually one of causation. The disability or death is not compensable unless the injury or death arose out of the employment. There is no fixed formula by which the issue may be resolved, and the issue must be determined by the facts of each case.

7. Workers' Compensation: Appeal and Error. The issue in regard to causation of an injury or disability is one for determination by the fact finder, whose findings will not be set aside unless clearly erroneous.

8. Workers' Compensation: Proof. For an award based on disability, a claimant must establish, by a preponderance of the evidence, that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act.

9. Workers' Compensation. The heart injury causation issue embraces two elements: (1) legal cause and (2) medical cause. Under the legal test, the law must define what kind of exertion satisfies the test of "arising out of the employment." Under the medical test, the doctors must say whether the exertion (having been held legally sufficient to support compensation) in fact caused the collapse.

10. Workers' Compensation: Proof. An exertion- or stress-caused heart injury to which the claimant's preexisting heart disease or condition contributes is compensable only if the claimant shows that the exertion or stress encountered during employment is greater than that experienced during the ordinary nonemployment life of the employee or any other person.

11. Workers' Compensation: Proof. While legal cause is established by satisfying the "stress greater than nonemployment life" test, a claimant must still demonstrate medical causation. If it is claimed that an injury was the result of stress or exertion in the employment, medical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury.

12. Workers' Compensation: Proof. A claimant is not required to prove that a preexisting disease or condition will not sometime in the future through natural progression result in disability.

13. Workers' Compensation: Appeal and Error. When the record presents conflicting medical testimony, the Supreme Court will not substitute its judgment for that of the Workers' Compensation Court.

Melvin C. Hansen and Kevin J. Dostal of Hansen, Engles & Locher, P.C., Omaha, for appellants.

John Kocourek of Peterson Law Offices, Council Bluffs, Iowa, and David R. Stickman, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

PER CURIAM.

Roberts Dairy (Roberts) and its insurance carrier appeal from the unanimous finding by the Workers' Compensation Court upon rehearing that a fatal heart attack suffered by Roberts' employee Kenneth E. Leitz shortly after he unloaded carts containing frozen ice cream products arose out of and in the course of his employment with Roberts. We affirm.

The appellants' four assignments of error combine to allege that the Workers' Compensation Court was clearly wrong in finding that Leitz' fatal injury arose out of and in the course of his employment with Roberts.

In determining whether the evidence is sufficient to support an award by the Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party. [Citation omitted.] As the trier of fact, the Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. [Citation omitted.]

Reynolds v. School Dist. of Omaha, 236 Neb. 508, 509, 461 N.W.2d 758, 760 (1990).

Viewed in the light most favorable to the appellees, the record reflects the following: Leitz was employed by Roberts as a semitrailer driver, working out of its Omaha distribution facility. On April 20, 1988, Leitz, then 48 years of age, was accompanied on his route by Gilbert Stogdill. Leitz' widow, Elizabeth Leitz, testified that at that time, Leitz was 6 feet tall and weighed between 195 and 210 pounds. As part of his duties, Leitz was required to unload carts which contained frozen ice cream products. The ice cream carts weigh approximately 150 pounds when empty. When the carts are loaded, they generally weigh approximately 300 to 400 pounds, but can range from 200 to 700 pounds in weight. The steel carts are approximately 6 feet in height and 30 by 28 inches in width and depth and are moved about on four 5-inch wheels. The carts were placed in threes across the width of the trailer in question on April 20. Although a mechanism holds the carts in place during transport, Stogdill testified that it was possible that the wheels of the carts became nonaligned during the trip.

On the workday in question, which started approximately at 4:30 a.m., Leitz and Stogdill were to deliver ice cream to "six stops on the drop route." Before the first delivery, the two men drove to Rockport, Missouri, where Leitz ate breakfast. The pair then drove to Falls City, Nebraska, where they delivered one cart to a facility, and then drove to the Sabetha, Kansas, plant, where they left two carts. Between 11 and 11:30 a.m., Leitz and Stogdill arrived at a Roberts facility in Salina, Kansas, to unload 13 carts. Stogdill testified that the two men first straightened the carts in the trailer. After removing the load bars on the inside of the trailer, Leitz maneuvered the carts from their stationary position, out a side door, and onto a hydraulic lift. Stogdill testified that the most difficult aspect of propelling a cart is its initial movement from a stationary position. After the carts were placed on the hydraulic lift, Stogdill moved the carts from the lift and into a cooler. Leitz and Stogdill replaced the loaded carts in the trailer with empty carts. There was testimony that during this process, Leitz told Stogdill that he was woozy. It took about 30 to 45 minutes to unload and reload the trailer.

The temperature inside the trailer was 20 degrees with the doors open and 10 degrees below zero when they were closed. There was testimony that the outside temperature on April 20 was approximately 85 to 90 degrees. Stogdill recalled that Leitz was wearing only a hooded sweater over his work clothes. Dr. Ward A. Chambers, a cardiologist, testified that the human body makes adaptive changes in cold weather that are not beneficial to the heart and appear to adversely affect oxygen requirements. He further testified that large changes in temperature tend not to be well tolerated by the heart.

After finishing their duties on the loading dock at Salina, Leitz and Stogdill went into an office to complete some paperwork. After approximately 10 to 15 minutes, Leitz returned to the truck to retrieve additional paperwork. He came back to the office and then proceeded to a restroom. When Leitz returned from the restroom, he looked pale. He sat down by a receptionist and, in response to Stogdill's query, said that he felt dizzy. A short while later, Leitz sat down next to Stogdill. When another worker asked what was wrong, Leitz stated that as he was returning to the office from his truck, he felt a sharp pain run up his left arm, and that he became dizzy. After Leitz said that, he lay down and a rescue unit was summoned.

Emergency medical personnel were contacted at 1:25 p.m. Shortly after the paramedics' arrived, Leitz went into cardiac arrest. He was taken to St. John's Hospital in Salina, where he was pronounced dead at 2:15 p.m.

The record reflects that there were several factors that increased the risk of Leitz' suffering a heart attack. Elizabeth Leitz testified that her husband had high blood pressure, but that he had been taking medication faithfully for it since the fall of 1983. There was medical expert testimony that Leitz' hypertension was being fairly well controlled. Dr. Edward R. Farrage, Leitz' family physician, testified that less than 2 weeks prior to his death, Leitz' blood pressure was 130 over 80, which was within normal limits. Leitz smoked cigarettes and was "chain smoking" on the day he died. Dr. Chambers testified that tobacco use will cause a degree of carbon monoxide which displaces oxygen in the blood. The record reflects that Leitz rarely exercised. Dr. Chambers reported:

Autopsy revealed he had evidence of cardiac enlargement and severe...