Newbanks v. Foursome Package & Bar, Inc.

• Decision Date: 13 December 1978
• Docket Number: No. 42056,42056
• Citation: 272 N.W.2d 372,201 Neb. 818
• Parties: Harold R. NEWBANKS, Appellant, v. FOURSOME PACKAGE & BAR, INC., Appellee.
• Court: Nebraska Supreme Court

Page 372

272 N.W.2d 372

201 Neb. 818

Harold R. NEWBANKS, Appellant, v. FOURSOME PACKAGE & BAR, INC., Appellee.

No. 42056.

Supreme Court of Nebraska.

Dec. 13, 1978.

Syllabus by the Court

1. Under the Nebraska Workmen's Compensation Act, the claimant has the burden of proof to establish by a preponderance of the evidence that an unexpected and unforeseen injury was in fact caused by the employment.

2. Under the Nebraska Workmen's Compensation Act, the terms "injury" and "personal injuries" do not include disability or death due to natural causes but occurring while the employee is at work, nor an injury, disability, or death that is the result of any preexisting condition.

3. In a workmen's compensation case involving a myocardial infarction, where the claimant has a preexisting disease or condition which contributes to the injury, he has the burden of establishing by a preponderance of the evidence that exertion in his employment, in reasonable probability, contributed in some material and substantial degree to cause the injury. The injury is compensable only if the employment contribution involves an exertion greater than that of nonemployment life.

4. In myocardial infarction cases the issue is whether the injury arises out of and in the course of employment, and that issue must be determined by the facts of each case.

5. Findings of fact made by the Nebraska Workmen's Compensation Court after rehearing will not be set aside on appeal unless clearly wrong.

6. In testing the sufficiency of evidence to support 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.

John B. Ashford of Bradford & Coenen, Omaha, for appellant.

John R. Timmermier of Schmid, Ford, Mooney, Frederick & Caporale, Omaha, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

McCOWN, Justice.

This is a workmen's compensation case in which the plaintiff sought to recover benefits for a heart attack. A single judge of the Nebraska Workmen's Compensation Court awarded plaintiff benefits for temporary total disability. Upon rehearing, a three-judge panel of the Workmen's Compensation Court found against the plaintiff and dismissed his petition.

The plaintiff, Harold R. Newbanks, was the bartender and manager of a bar owned and operated by the defendant, Foursome Package & Bar, Inc., a corporation, owned and managed by the plaintiff and his wife. The plaintiff was nearly 55 years old and had been working at the bar for 7 to 8 years prior to the incident here. His duties at the bar, in addition to his duties as bartender and manager, included such tasks as cleaning up, moving cases of whiskey and beer, and stocking shelves.

On December 15, 1976, sometime before noon, the plaintiff was engaged in cleaning the bar. In the process of picking up a case of whiskey which weighed approximately 60 pounds, the plaintiff experienced a pain in his head, neck, and chest. He sat down for approximately 30 minutes and then called his wife to have her make an appointment with the family physician. The doctor gave the plaintiff an appointment for December 17, 1976. Plaintiff continued to work on December 15 until sometime in the afternoon. The next 2 days the plaintiff opened the bar in the morning but apparently did little else.

On December 17, 1976, plaintiff was examined by his family physician. The doctor testified that an electrocardiogram taken on that date showed an abnormal tracing compatible with coronary angina, or an impending heart attack. He prescribed nitroglycerin and advised complete rest. Plaintiff testified that while the pain subsided, it did not go away.

On the night of December 21, 1976, plaintiff awoke with sharp pains and the doctor ordered him to the hospital where he was admitted at 3 a. m., on December 22, 1976. The electrocardiogram taken at the hospital on December 22, 1976, was substantially the same as the electrocardiogram taken on December 17, 1976, and both of them demonstrate ischemia, an inadequate supply of blood and its nutrients to the heart. Enzyme tests taken at the hospital on December 22, 1976, showed no abnormalities. The doctors agreed that the plaintiff had arteriosclerosis, commonly called hardening of the arteries, which is a progressive disease, common among men of plaintiff's age. They also agreed that ischemia could result from, or be caused by, hardening of the arteries.

The evidence is virtually uncontradicted that at approximately 1:20 a. m. on December 23, 1976, while the plaintiff was in bed and asleep at the hospital, a myocardial infarction, or heart attack, occurred. Plaintiff remained in the hospital until January 2, 1977, and for 6 months thereafter he suffered temporary total disability and was restricted from returning to work.

Plaintiff's family doctor testified that plaintiff's lifting of the whiskey case on December 15, 1976, probably precipitated the heart attack on December 23, 1976. Plaintiff's cardiologist testified that ischemia is usually...