Nunn v. Texaco Trading and Transp., Inc.

Decision Date01 November 1994
Docket NumberNo. A-94-083,A-94-083
Citation523 N.W.2d 705,3 Neb.App. 101
PartiesThomas E. NUNN, Appellee, v. TEXACO TRADING AND TRANSPORTATION, INC., Appellant.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. The review panel of the Workers' Compensation Court sits as an appellate court when reviewing an award of the trial judge. Neb.Rev.Stat. § 48-179 (Reissue 1993). As such, the review panel may reverse or modify the findings, order, award, or judgment of the trial court only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law.

2. Workers' Compensation: Appeal and Error. When a judgment of the compensation court's review panel is appealed to a higher appellate court, such judgment has the same force and effect as a jury verdict in a civil case. The higher appellate court may modify, reverse, or set aside the review panel's judgment on the grounds that (1) it acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there was not sufficient evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact do not support the order or award.

3. Workers' Compensation: Proof. In order for an employee to recover benefits under the Nebraska Workers' Compensation Act, the employee must first prove that the accident giving rise to the injuries arose out of and in the course of his or her employment. Neb.Rev.Stat. § 48-101 (Reissue 1993).

4. Workers' Compensation: Words and Phrases. The term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising from within the scope or sphere of the employee's job.

5. Workers' Compensation: Insurance. Payment of private insurance benefits, even if made pursuant to an employer-funded plan, does not entitle an employer to reduce an employee's benefits due under the Workers' Compensation Act.

Paul F. Prentiss, of Timmermier, Gross & Burns, Omaha, for appellant.

Robert W. Mullin, of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, P.C., Scottsbluff, for appellee.

CONNOLLY, IRWIN, and MILLER-LERMAN, JJ.

IRWIN, Judge.

Texaco Trading and Transportation, Inc., appeals from a decision of the review panel of the Workers' Compensation Court, which affirmed the trial court's award of benefits to Texaco's former employee, Thomas E. Nunn. Texaco claims that the review panel erred in affirming the trial court's determination that an accident in which Nunn was injured arose out of Nunn's employment with Texaco and in finding that Texaco was not entitled to credit in the award for payments it had made to Nunn through a short-term disability plan. We find no error in the lower court's determination that Nunn's accident arose out of his employment with Texaco and that Texaco was not entitled to credit for disability payments, and we therefore affirm the review panel's decision.

FACTUAL BACKGROUND

Texaco hired Nunn as a crude oil truckdriver in 1988. On July 3, 1991, the date of the accident, Nunn was hauling crude oil from fields and depots in western Nebraska and eastern Wyoming to refineries in that region. Nunn was operating a semi-tractor with an attached crude oil tank and a "pup" tank trailer. That morning, Texaco dispatched Nunn from Kimball, Nebraska, to the "Sioux Depot Oil Lease" near Sidney, Nebraska. He arrived at the Sioux Depot Lease at approximately 7:30 a.m., filled the truck tank and pup trailer with crude oil, and then drove to the Frontier Refinery in Cheyenne, Wyoming, to unload the oil. After he unloaded at the refinery, Nunn was dispatched to the "Quealy Dome Oil Lease," an oilfield near Laramie, Wyoming, to pick up another load of oil.

The oil that Nunn was to load at the Quealy Dome Lease was "sour crude," which meant that the oil had a high sulfur content and emitted hydrogen sulfide (HS) gas. According to testimony at the trial hearing, exposure to high concentrations of HS can cause loss of consciousness and even death. For that reason, Texaco equipped its drivers, including Nunn, with personal monitoring devices that were to warn them when concentrations of HS approached a level that posed a health risk.

When Nunn arrived at the Quealy Dome Lease, he noticed a sign warning of HS gas, and he faced his truck into the wind so that he would not inhale the gas as the oil was being pumped into the tanks on his truck. Although Nunn's HS monitor did not go off at any time while he was at the Quealy Dome Lease, he began feeling stomach pains as the oil was being pumped into the tanks. After filling the tanks and starting down the road to Cheyenne, Nunn's stomach pains subsided. When Nunn was approximately 25 miles west of Cheyenne on Interstate 80, he began descending a long, steep hill known as Sherman Hill. As he was descending Sherman Hill, he felt a heavy feeling in his stomach, which he described as like "swallow[ing] a brick or bread dough." As he approached a bridge spanning some railroad tracks, Nunn suddenly felt lightheaded, and before he could do more than remove his foot from the throttle, he blacked out. Nunn's truck then traveled off the roadway preceding the bridge, struck a guardrail, rolled onto the passenger's side, and skidded to a stop on the bridge. The pup trailer became unattached and fell from the bridge onto the railroad tracks. Oil spilled from the tanker truck and the pup trailer, and caught fire.

When Nunn regained consciousness, he was hanging by his seatbelt inside the truck cab. He noticed that the engine was still running, and as he reached to shut it off, flames emerged around the passenger's-side corner of the windshield. He immediately released his seatbelt, and as he stood up inside the cab, the flames engulfed the entire exterior of the cab. Nunn then climbed up through the driver's side window and jumped from the truck, sustaining burns as he did so. He then ran away from the truck and was picked up by some passers-by, who drove him away from the accident scene.

Nunn was treated by emergency personnel near the scene and then transported by helicopter to the North Colorado Medical Center in Greeley, Colorado. He was diagnosed with first, second, and third degree burns of the face, neck, arms, back, buttocks, and hands, covering 25 to 28 percent of his total body surface area. Nunn was also diagnosed with psychological trauma resulting from the accident. He was treated at the hospital's burn center until July 27, 1991, and thereafter he received outpatient physical therapy at the Regional West Medical Center in Scottsbluff, Nebraska.

At the time of the accident, Nunn was covered by a short-term disability plan that was both administered and funded by Texaco. Pursuant to the plan, Texaco paid Nunn a total of $14,327 during the year following the accident. Texaco also paid a portion of Nunn's medical bills, in the amount of $34,457. However, Texaco did not pay workers' compensation disability benefits to Nunn.

In February 1993, Nunn obtained a vocational assessment and rehabilitation plan from Centennial Rehabilitation Associates, Inc. A report from Centennial contained in the record indicates that as a result of his injuries, Nunn was precluded from working in occupations that he had previously been engaged in. Nunn's vocational rehabilitation goal was to become a registered nurse.

Nunn filed a petition in the Workers' Compensation Court, and in an amended answer, Texaco denied that Nunn's injuries arose out of his employment. Texaco also alleged that it had paid certain "other benefits" to Nunn and claimed reimbursement for the medical expenses that it had paid on Nunn's behalf.

A hearing was held before a single judge of the Workers' Compensation Court on March 23, 1993. Among the exhibits presented at the hearing was a letter from Dr. Louis W. Burgher to Texaco's counsel. In the letter, Dr. Burgher states that after he reviewed Nunn's medical records, he found nothing to support the theory that Nunn suffered from HS overexposure. In its brief, Texaco also claims that a Dr. Weber concluded that Nunn passed out at the wheel due to the flu. We note that Texaco cites exhibit 29 in support of this statement. Exhibit 29 is a document entitled "perusal of records" and dated February 6, 1992. The document states that Nunn "[m]ost likely" suffered from vasovagal dizziness because of the flu. The document bears an illegible signature with a handwritten date below it of March 22, 1993, over 1 year later than the date at the top of the document. There is nothing in the record indicating what this document is supposed to be, whose signature is on the document, and in what capacity he or she signed the document. We recognize that the Workers' Compensation Court is not bound by rules of evidence or technical and formal rules of procedure. However, we remind counsel that we are not clairvoyant and that such exhibits are of limited value on appeal. After the accident, Nunn reported that he had felt flulike symptoms before he had blacked out and that he believed he had contracted the flu because his mother had been sick from the flu on the day before the accident.

On May 3, the single judge found that Nunn's injuries resulted from an accident which arose out of and in the course of his employment with Texaco and that as a result of such injuries, Nunn was temporarily and totally disabled from July 4, 1991, through September 3, 1992. The single judge found that Nunn thereafter sustained a 10-percent permanent loss of earning capacity and that he was entitled to vocational rehabilitation benefits as set forth in the rehabilitation plan developed by Centennial.

The court specifically rejected Texaco's claim that Nunn's accident did not arise out of his employment, stating that under the "positional risk" test, Nunn satisfied the "arising out of" requirement because...

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