Rosemann v. County of Sarpy

• Decision Date: 15 February 1991
• Docket Number: No. 90-214,90-214
• Citation: 466 N.W.2d 59,237 Neb. 252
• Parties: Jeanette Ann ROSEMANN, Wife and Dependent of Frederick J. Rosemann, Appellant, v. COUNTY OF SARPY, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 59

466 N.W.2d 59

237 Neb. 252

Jeanette Ann ROSEMANN, Wife and Dependent of Frederick J. Rosemann, Appellant, v. COUNTY OF SARPY, Nebraska, Appellee.

No. 90-214.

Supreme Court of Nebraska.

Feb. 15, 1991.

Syllabus by the Court

1. Workers' Compensation: Proof. For an award based on an employee's death, a claimant must establish, by a preponderance of the evidence, that the employment proximately caused an injury

which resulted in death compensable under the Nebraska Workers' Compensation Act.

2. Workers' Compensation: Proof. A claimant has the burden to show the cause-and-effect relationship involving employment, an industrial injury, and disability or death.

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

4. Workers' Compensation: Words and Phrases. In Neb.Rev.Stat. § 48-101 (Reissue 1988), the phrase "arising out of" refers to an injury which is the basis of a workers' compensation claim and the injury's origin, cause, and character, that is, whether an employee's unexpected or unforeseen injury results from risks arising within the scope or sphere of employment.

5. Workers' Compensation: Proof. In a workers' compensation case based on an employee's heart attack, causation required for compensability consists of two parts: legal cause and medical cause. For legal causation, the workers' compensation law defines the type of exertion which satisfies "arising out of" employment as a requirement for compensability. For medical causation, medical evidence must establish that an employee's exertion, as the legal cause sufficient for compensability, in fact caused an employee's heart attack which is the subject of a workers' compensation claim.

Richard J. Rensch, of Raynor, Rensch & Pfeiffer, Omaha, for appellant.

Patrick B. Donahue, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

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

SHANAHAN, Justice.

Jeanette Ann Rosemann appeals from the order of dismissal by the Nebraska Workers' Compensation Court in an action against the County of Sarpy. We affirm.

STANDARD OF REVIEW

"Findings of fact made by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case.... In testing the sufficiency of evidence to support findings of fact made by the Nebraska Workers' Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party.... Factual determinations by the Workers' Compensation Court will not be set aside on appeal unless such determinations are clearly erroneous. Regarding facts determined and findings made after rehearing in the Workers' Compensation Court, § 48-185 precludes the Supreme Court's substitution of its view of facts for that of the Workers' Compensation Court if the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court.... As the trier of fact, the Nebraska Workers' Compensation Court is the sole judge of the credibility of witnesses and the weight to be given testimony."

Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 460-61, 461 N.W.2d 565, 568 (1990). Accord, Fees v. Rivett Lumber Co., 228 Neb. 617, 423 N.W.2d 483 (1988); Mendoza v. Omaha Meat Processors, 225 Neb. 771, 408 N.W.2d 280 (1987). See, also, Neb.Rev.Stat. § 48-185 (Reissue 1988).

BACKGROUND OF THE ROSEMANN CLAIM

Jeanette Ann Rosemann is the widow of Frederick J. Rosemann, a former Sarpy County deputy sheriff who held the rank of sergeant and worked at the Sarpy County jail. On May 5, 1987, Sergeant Rosemann injured his left rotator cuff and arm during the course of his employment when he caught a falling truck tire and thereby prevented injury to a jail inmate. By July 6, 1987, Rosemann had fully recovered from his May 5 injury. Rosemann's medical bills from that injury were paid by the insurance company which provided workers' compensation coverage for Sarpy County.

For no apparent reason, on March 11, 1988, Frederick Rosemann began experiencing pain in his left shoulder, pain which intermittently persisted until March 18, 1988, when Capt. Daniel Williamson of the sheriff's department assigned Sergeant Rosemann to another office in the sheriff's headquarters and directed him to move all the furniture from Rosemann's old office into his new office in the headquarters. Cpl. Arthur Dudley observed Rosemann's attempt to push a 157-pound desk from Rosemann's old office to the new office and offered to help. Corporal Dudley and Rosemann then maneuvered the desk through the doorway of Rosemann's old office, pushed the desk 90 feet down the hall into another office, and moved a bookcase and filing cabinets from Rosemann's old office to his new office. At the conclusion of the furniture-moving project, neither Dudley nor Rosemann was out of breath or complained of overexertion.

Later on March 18, after the furniture had been moved to Rosemann's new office, Captain Williamson, while visiting with Rosemann, noticed that Rosemann was pale and was rubbing his left shoulder and rotating his arm. Believing that Rosemann had aggravated his previously injured left rotator cuff, Williamson sent Rosemann home at approximately 3:30 p.m.

Throughout the evening of March 18, Rosemann's shoulder pain increased, continued notwithstanding medication, and prompted him to go to a hospital emergency room. Rosemann arrived at the hospital at 12:24 a.m. on March 19 and told the emergency room physician that he had been suffering pain in his left shoulder for a week, that the pain had been increasing and was not alleviated by medication, that he had previously sustained a rotator cuff injury, and that he was unaware of any recent injury. The emergency room physician found that Rosemann's left shoulder was tender on palpation and that Rosemann's shoulder pain was aggravated with palm-up abduction of his left arm to a horizontal position. The physician diagnosed Rosemann's condition as left rotator cuff syndrome, treated him accordingly, and released him.

After recuperating at home for a few days, Rosemann returned to work, but, while at home around 8 p.m. on March 22, after a relatively uneventful day, Rosemann experienced excruciating pain in the upper left part of his body, suffered a myocardial infarction, collapsed, and died in the bathroom of his home.

MEDICAL EVIDENCE AND DISPOSITION AT REHEARING

The emergency room physician testified regarding his diagnosis of Rosemann on March 19, 1988:

Q. What diagnosis did you make at that time, if any?

A. Left rotator cuff syndrome.

Q. Doctor, could you state with a reasonable degree of medical certainty or probability that had you not been made aware of Mr. Rosemann's left rotator cuff shoulder problem from 1987, that your diagnosis and treatment of Mr. Rosemann would have been anything different at the time that you saw him?

....

THE WITNESS: If I understand your question, you are asking me, would my interpretation of his complaint and physical findings been different had I not known about his previous shoulder difficulties?

Q.... That's right.

A. I think not. I think it would have been the same.

Dr. Jerry Jones, the pathologist who had performed the autopsy on Rosemann and prepared his death certificate, concluded that Rosemann died of "[a]cute and healing myocardial infarcts, posterior wall left ventricle [resulting from] [s]evere coronary atherosclerosis, with recent thrombosis, right coronary artery." According to Dr. Jones, "approximately 24 hours or less before [Rosemann's] death, he sustained [an] acute myocardial infarct ... and it was this ... acute myocardial infarct that really triggered the cardiac arrhythmia that caused his immediate death."

Dr. Bruce McManus, a cardiac pathologist, testified that

[t]he proximate cause of death in this man's case is acute myocardial infarction, and that acute myocardial infarction is the heart attack that occurred just immediately before his death, which is of substantial size and ... is somewhere between, is around 12 hours, plus or minus a couple, three hours, of age.

Dr. Michael Sketch, a cardiologist, testified that none of Rosemann's activities of March 18, 1988, caused or contributed to Rosemann's death. Dr. Sketch also testified that Rosemann's prior medical history, obtained when Rosemann came to the emergency room on March 19, 1988, did not "mask" Rosemann's coronary problem, "[b]ecause with myocardial infarctions, they do not cause tenderness to be present, and they don't cause pain to be experienced by the individual being examined with adduction."

The Nebraska Workers' Compensation Court found that evidence for the Rosemann claim "failed to prove ... a causal connection between the rotator cuff injury and the heart attack," and also found that "[t]he plaintiff has failed to sustain her burden of proof" and dismissed Jeanette Ann Rosemann's action for workers' compensation.

ROSEMANN'S THEORY OF "MASKING"

"Accident" is statutorily defined as "an unexpected or unforeseen injury happening suddenly and violently ... and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment." Neb.Rev.Stat. § 48-151(2) (Reissue 1988). Section 48-151(5) provides: "Death, when mentioned as a basis for the right to compensation, shall mean only death resulting from such violence and its resultant effects or from occupational disease." Further, § 48-151(4) in part states: "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."

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