Mendoza v. Omaha Meat Processors Through Tower Ins. Co.

• Decision Date: 26 June 1987
• Docket Number: No. 86-558,86-558
• Citation: 225 Neb. 771,408 N.W.2d 280
• Parties: Margarito MENDOZA, Appellee and Cross-Appellant v. OMAHA MEAT PROCESSORS, Through its Insurer, TOWER INSURANCE COMPANY, Appellant and Cross-Appellee, Wausau Insurance Companies, Intervenor-Appellee, and Cross- Appellee.
• Court: Nebraska Supreme Court

Page 280

408 N.W.2d 280

225 Neb. 771

Margarito MENDOZA, Appellee and Cross-Appellant v. OMAHA MEAT PROCESSORS, Through its Insurer, TOWER INSURANCE COMPANY, Appellant and Cross-Appellee, Wausau Insurance Companies, Intervenor-Appellee, and Cross- Appellee.

No. 86-558.

Supreme Court of Nebraska.

June 26, 1987.

Syllabus by the Court

1. Proximate Cause: Trial. Determination of causation is, ordinarily, a matter for the trier of fact.

2. Proximate Cause: Proof. An independent intervening cause, as the proximate cause of an injury, is, generally, a matter of defense and, as such, must be proved by the party asserting that defense.

3. Workers' Compensation. Where there have been two accidents to an employee, the question of whether the disability sustained by him should be attributed to the first accident or to the second accident depends on whether or not the disability sustained was caused by a recurrence of the original injury or by an independent intervening cause. If the second injury is but a recurrence of the original injury, compensation therefor must be paid by the employer and insurance carrier at the time of the first injury.

4. Workers' Compensation. To obtain an award for compensation on account of personal injury, an employee has the burden of proof to establish the causal relationship involving employment, an industrial injury, and disability.

5. Workers' Compensation. Mere possibility of an independent intervening cause does not relieve an employer from liability for an employee's otherwise compensable claim for workers' compensation and benefits.

6. Workers Compensation: Attorney Fees: Time. As construed by this court, Neb.Rev.Stat. § 48-125 (Reissue 1984) authorizes a 50-percent payment for waiting time involving delinquent payment of compensation and an attorney fee, where there is no reasonable controversy regarding an employee's claim for workers' compensation.

7. Workers' Compensation: Attorney Fees: Time. Whether a reasonable controversy exists pertinent to Neb.Rev.Stat. § 48-125 (Reissue 1984) is a question of fact.

8. Workers' Compensation: Attorney Fees: Time: Words and Phrases. For the purpose of Neb.Rev.Stat. § 48-125 (Reissue 1984), a reasonable controversy may exist (1) if there is a question of law previously unanswered by the Supreme Court, which question must be answered to determine a right or liability for disposition of a claim under the Nebraska Workers' Compensation Act, or (2) if the properly adduced evidence would support reasonable but opposite conclusions by the Nebraska Workers' Compensation Court concerning an aspect of an employee's claim for workers' compensation, which conclusions affect allowance or rejection of an employee's claim, in whole or part. To avoid the payments assessable under § 48-125, an employer need not prevail in opposition to an employee's claim for compensation but must have an actual basis, in law or fact, for disputing the employee's claim and refraining from payment of compensation.

9. Workers' Compensation: Expert Witnesses. Unless the character of an injury is objective, that is, an injury's nature and effect are plainly apparent, an injury is a subjective condition, requiring an opinion by an expert to establish the causal relationship between an incident and the injury Terry K. Gutierrez and William E. Gast of William E. Gast, P.C., Omaha, for appellant.

as well as any claimed disability consequent to such injury.

J. Thomas Rowen of Miller, Carpenter, Rowen, Fitzgerald & Coe, P.C., Omaha, for appellee.

Rodney G. Gnuse of Schmid, Mooney & Frederick, P.C., Omaha, for intervenor-appellee.

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

SHANAHAN, Justice.

Tower Insurance Company (Tower) appeals the Nebraska Workers' Compensation Court award to Margarito Mendoza (Mendoza), an employee of Omaha Meat Processors (OMP). Mendoza cross-appeals from denial of an attorney fee and an additional payment of 50 percent for waiting time involving delinquent payment of compensation. See Neb.Rev.Stat. § 48-125 (Reissue 1984). We affirm in part and in part reverse and remand with direction.

BASIS OF CLAIM

OMP employed Mendoza as a "meatcutter," which involved cutting pieces of meat weighing "60 ... up to 80 pounds." While a carcass is being moved on a conveyor belt, a cutter pulls and sometimes lifts the conveyed meat, which is then cut and trimmed of fat. Occasionally, when a carcass was too heavy for the conveyor system, a meatcutter, with the aid of a meathook, would "pull the meat to get the belt going again." On November 7, 1983, Mendoza, trimming meat, was beside the conveyor when he "reached for a piece of meat and the meat ... hook ripped off the meat," causing Mendoza to fall backward against a wall. Mendoza immediately experienced a "sharp pain" in his back, but continued working that day. Tower was the insurance carrier for OMP's workers' compensation coverage on November 7.

On November 11, 1983, Mendoza went to his family physician, Dr. Donald Gammel, and complained about sharp back pain, radiating into his legs. Dr. Gammel prescribed medication and physical therapy for Mendoza and ordered Mendoza not to return to work. When Mendoza's back pain persisted, Dr. Gammel, on November 28, reexamined Mendoza and found a "tenderness to palpation over both paralumbar musculature" and "[p]oint tenderness over the third lumbar spinous process and the right sciatic notch." Based on examination and x rays of Mendoza, Dr. Gammel diagnosed Mendoza's condition as an "[a]cute lumbar strain" and admitted Mendoza to the hospital later on November 28.

While in the hospital, Mendoza was examined by Dr. R.C. Pitner, an orthopedic surgeon, to whom Mendoza had been referred by Dr. Gammel. Dr. Pitner found that Mendoza experienced "some pain with flexion and dorsiflexion of the lumbosacral spine [and] tenderness to palpation over L4-5 and over L5-S1" and diagnosed Mendoza's injury as a "back strain." On December 3, Mendoza was discharged from the hospital and returned to work on December 19, but again experienced sharp pains, down the sides of his legs. During an examination on January 4, 1984, Dr. Pitner found that Mendoza "ha[d] pain with dorsiflexion and some with flexion," as well as "discomfort with lateral bending, particularly to the right" and "[tlenderness over L3-4, L4-5, and L5-S1." Dr. Pinter concluded that Mendoza should not return to work, and prescribed a "chair-back brace" for Mendoza, as well as an exercise program, including daily physical therapy and ultrasound treatment.

Dr. Pitner again saw Mendoza on January 19, 1984, when Mendoza indicated that his back pain was not as severe as it had been, but there was still some tenderness in his low back. Dr. Pitner authorized Mendoza's return to work on January 30. After he had gone back to work, Mendoza returned to Dr. Pitner on April 12 and complained of "numbness" and "soreness in the low back and in his legs." Dr. Pitner suggested that Mendoza The CAT scan on May 2 disclosed a protrusion and "mild diffuse posterior bulge" regarding Mendoza's lumbar vertebrae. Dr. Pitner informed Mendoza about the prospects of a myelogram and possible chemical dissolution of the problem disk. However, Mendoza, who had been absent from work since May 8 for medical reasons but without further treatment from Dr. Pitner, returned to his OMP job on May 29 and, because there was no "light duty work," resumed heavy lifting involving carcasses on the conveyor. In the fall of 1984, when Mendoza was reexamined on account of his continuing back pain, Dr. Pitner viewed Mendoza's x rays and recommended "surgical intervention with diskectomy." When Mendoza's back problem persisted, in February of 1985 Dr. Pitner referred Mendoza to Dr. Patrick Bowman, another orthopedic surgeon, for a second opinion regarding back surgery for Mendoza.

find a "lighter type of job" which did not require lifting heavy objects. When Mendoza's leg pain and soreness in his low back persisted, Dr. Pitner directed that Mendoza permanently refrain from heavy lifting and ordered a "CAT Scan" to ascertain whether Mendoza had a herniated disk.

Dr. Bowman, on the basis of Mendoza's history, a copy of a report on the CAT scan (May 2, 1984), and his examination of Mendoza, reached a diagnostic "impression" on February 25, 1985; namely, Mendoza suffered from a "[l]umbar disc syndrome." Dr. Bowman did not recommend surgery on Mendoza, and Mendoza continued working for OMP.

In June 1985, Mendoza filed a petition in the Nebraska Workers' Compensation Court, alleging that he had suffered a herniated disk which had resulted from the accident of November 7, 1983.

On August 1, 1985, Mendoza was involved in a second accident at OMP and sustained bodily injury when he attempted to replace a carcass on the conveyor, twisted his back, and experienced intensified back pain and a previously unexperienced "burning" sensation in his legs.

Mendoza, on August 8, returned to Dr. Bowman for another examination regarding the back problem. During that examination, Mendoza did not mention anything concerning the August 1 accident but complained about increased pain in his back and right leg. Dr. Bowman prescribed medication for Mendoza and authorized Mendoza's return to "light duty work," subject to reexamination on August 19. Because no light duty work was available at OMP, Mendoza did not return to employment with OMP, and reappeared for examination by Dr. Bowman on August 19. A CAT scan on August 23 disclosed Mendoza's "mild herniation of the central portion of the disc" at L4-5, but, when Mendoza indicated that his condition had improved, Dr. Bowman authorized Mendoza's return to work, effective September 16, "on a trial basis." However, Mendoza did not return to work, and was reexamined by Dr. Bowman on September 23. In the September 23 examination, Mendoza told Dr. Bowman about the back pain's "getting worse" after...