Reis v. Douglas County Hospital

• Decision Date: 17 April 1975
• Docket Number: No. 39624,39624
• Citation: 227 N.W.2d 879,193 Neb. 542
• Parties: Mary D. REIS, Appellee, v. DOUGLAS COUNTY HOSPITAL, Appellant.
• Court: Nebraska Supreme Court

Page 879

227 N.W.2d 879

193 Neb. 542

Mary D. REIS, Appellee, v. DOUGLAS COUNTY HOSPITAL, Appellant.

No. 39624.

Supreme Court of Nebraska.

April 17, 1975.

Syllabus by the Court

1. An injury, to be the basis of a cause of action within the provisions of the Workmen's Compensation Act, must be one caused by an accident arising out of and in the course of the employment. Section 48--101, R.R.S.1943.

2. The phrases 'in the course of' and 'arising out of' are not synonymous, and where they are used conjunctively, as they are in the Workmen's Compensation Act of this state, a double condition is imposed and both must exist to bring a case within the act.

3. Even where it is established that an injury is one 'arising out of' the employment, the right to recover benefits under the Workmen's Compensation Act must fail where there is no evidence indicating that the injury occurred 'in the course of' the employment.

4. The words 'in the course of' as used in section 48--101, R.R.S.1943, refer to the time, place, and circumstances of the accident, and claimant must establish that there was a temporal and space nexus to the employment.

Donald L. Knowles, County Atty., William T. Ginsburg, Deputy County Atty., Omaha, for appellant.

Patrick L. Cooney, of McCormack, Cooney & Mooney, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

Plaintiff, Mary D. Reis, sued to recover benefits under the Workmen's Compensation Act. In her petition filed in the Workmen's Compensation Court on September 6, 1973, she alleged that she was employed by the Douglas County Hospital as a registered nurse, earning $255 per week, and that on or about January 24, 1973, and while so employed, she suffered a myocardial infarction as a result of an accident arising out of and in the course of her employment, for which she claimed compensation. Defendant admitted her employment as a nurse in the hospital, but denied that the alleged accident and injury arose out of and in the course of her employment. A hearing was had before the Workmen's Compensation Court on October 9, 1973, and on November 14, 1973, the judge who heard the case issued an order of dismissal, finding the plaintiff had failed to maintain her burden of proof that she sustained an accident and received an injury which arose out of and in the course of her employment. Plaintiff petitioned for a rehearing of that decision to the Workmen's Compensation Court sitting en banc, as provided by law; and a rehearing was held on December 11, 1973, before a three judge panel of that court, which found that plaintiff had suffered a myocardial infarction as the result of an accident arising out of and in the course of her employment, and awarded her benefits of $62 per week for 28 2/7 weeks, as temporary total disability covering two separate periods of time. The court also awarded her medical and hospital expenses, and set aside the original order of dismissal entered by the single judge on November 14, 1973. Defendant Douglas County Hospital appealed that decision to the District Court for Douglas County, which upheld the decision of the Workmen's Compensation Court en banc, and in addition awarded plaintiff's attorney $1,250 as an attorney's fee. Defendant has appealed to this court from the judgment of the District Court. We reverse and dismiss.

Defendant hospital assigns as error that the plaintiff did not meet her burden of establishing and proving by the evidence (1) Any 'accident or occupational disease' that was recoverable under the Nebraska Workmen's Compensation Act, section 48--101, R.R.S.1943; (2) any 'accident or occupational disease' arising 'out of and in the course of' her employment which contributed substantially to her heart disease; and (3) that, as a matter of fact, her employment contributed causally to her heart disease. Defendant also alleges that an allowance of $1,250 for attorney's fees was excessive.

The only witnesses who testified in this proceeding were the plaintiff, Mary D. Reis, and her physician, Dr. Edward J. Smith. The defendant produced no witnesses and adduced no evidence, although we feel it would have been a great assistance to the court in this case had defendant done so. However, there is evidence in the record establishing the following facts, or, from which the trier of facts would be justified in finding such facts and conclusions to be established: Plaintiff, Mary D. Reis, is a registered nurse and has been employed by the Douglas County Hospital since October of 1964 in various nursing capacities. In April of 1971 she became staffing coordinator for the hospital. In that position she became responsible for the personnel at the hospital, consisting of about 620 people. Her duties included interviewing and hiring personnel and she had the responsibility to make sure the hospital had nursing coverage 24 hours a day. This required the preparation of numerous schedules a considerable period of time in advance of the actual service. She sometimes faced hostilities from the employees who objected to her scheduling on weekends, nights, etc., for various reasons, and there is evidence in the record that she was faced with some racial hostility because of her duty assignments. Sometimes she was frustrated by her lack of authority to back up her own decisions, and there was also pressure because of deadlines. She testified that she worked from 50 to 70 hours per week, although she was supposed to work only 40 hours per week. There is evidence that on occasion she took work home from the hospital, and frequently was called at home from the hospital.

In the fall of 1972 she noticed that she was becoming kind of agitated, nervous, and having problems sleeping, 'especially if I had taken a lot of work home with me and worked late.' In October of 1972 she saw Dr. Smith for her annual physical examination and he prescribed a mild tranquilizer for her, to be taken on 'bad days.' She next saw Dr. Smith on January 24, 1973. She had been having some pains in her chest and also had developed a cough. Dr. Smith gave her two prescriptions, one for an antibiotic, and one for cough medication. He suggested that she should get some rest at home and told her not to go back to work until she felt better. She returned to work on February 5, 1973. Although she felt better, she was still having some chest pains. Within 10 days thereafter, the pain from her chest radiated to her left shoulder and left arm. She called Dr. Smith about her condition on February 16th and he admitted her to Doctor's Hospital on that day. Dr. Smith ordered an electrocardiogram and lab work; and after the results of the tests were obtained, he treated her for myocardial infarction and prescribed bed rest and medication. She was released from the hospital on February 26th, but returned to her home to rest and recuperate, and did not return to work until August 21, 1973. When she returned to work on August 21st, she was employed on an entirely different job, that of physician and patient representative; and only worked 24 hours a week at the beginning, which was later increased to 32 hours a week. She testified that she was married, had two children, a son 20 years of age and a daughter 18 years of age. Her son was in the army, stationed in Thailand, but at the time of the alleged infarction, was stationed at Fort Leonard Wood, Missouri. Her daughter was a freshman at college; and her husband, after an army career, was a butcher at Baker's Super Market, with considerable job security because of seniority. On cross-examination, plaintiff also testified that around January of 1973, she had chest pains for several weeks and that a cough developed. Close to February she started having pains in her shoulder, arms, and neck. She also had an unusual amount of tiredness, weakness, and shortage of breath, and a choking sensation at times. She also had a pain in her jaw.

Plaintiff's doctor and treating physician, Dr. Edward J. Smith, testified on plaintiff's behalf. Dr. Smith is a graduate of the Nebraska Medical School and had practiced in Omaha for over 20 years, when he became a medical consultant for the Nebraska State Welfare Department. We note, in passing, that although in its brief defendant objects to the testimony of Dr. Smith on the ground that he is not a heart specialist, we believe his qualifications are such as to entitle him to testify as an expert witness, with his credibility and the weight to be given to his testimony being a matter for the consideration of the trier of facts.

Dr. Smith testified that he had known the plaintiff for about 5 years and that she came to his office in January of 1973. He took a history from her at that time and she told him that, other than childbearing, she had had no real illnesses of import. At that time her complaints were of chest pain and shortness of breath. His diagnosis at that time was an upper respiratory infection with viral pneumonia associated with it. He had previously started her on an antibiotic and something for a cough before seeing her. Although he suggested she go to the hospital, she preferred to go to her home for rest and continued medication. His next contact with plaintiff was the evening she entered Doctor's Hospital, at which time he gave her something for cough and pain and ordered a series of laboratory and X-ray procedures, including also an electrocardiogram. He stated that the electrocardiogram showed changes consistent with a myocardial infarction, which he defined in layman's language as a tiny area of death of tissue in part of the heart muscle caused by a cessation of blood flow to it, even on a temporary basis. This slowing down might be caused by a constriction or an occlusion, such as a thrombosis, or also by cholesterol building up deposits on the inside of the blood vessels. A temporary occlusion may be caused by stress or...