Rue v. Douglas County Corrections, No. A-06-606 (Neb. App. 5/1/2007)

Decision Date01 May 2007
Docket NumberNo. A-06-606.,A-06-606.
PartiesTOM RUE, APPELLEE AND CROSS-APPELLANT, v. DOUGLAS COUNTY CORRECTIONS, APPELLANT AND CROSS-APPELLEE.
CourtNebraska Court of Appeals

Stuart J. Dornan, Douglas County Attorney, and Bernard J. Monbouquette for appellant.

Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., for appellee.

IRWIN, CARLSON, and CASSEL, Judges.

IRWIN, Judge.

I. INTRODUCTION

Douglas County Corrections (DCC) appeals an order of a three-judge review panel for the Nebraska Workers' Compensation Court. On appeal, DCC asserts that the review panel erred in affirming the trial court's findings that Tom Rue's posttraumatic stress disorder (PTSD) was causally related to his shoulder, back, and hip injuries and therefore compensable. We find that the review panel erred in affirming the trial court's finding that Rue's PTSD was compensable, because the evidence fails to support the trial court's finding that Rue's PTSD was causally related to his shoulder, back, and hip injuries. Rue cross-appeals, alleging that the trial court erred in failing to find that his PTSD constituted an occupational disease. We conclude that the review panel did not err in affirming the trial court's finding that Rue's PTSD does not constitute an occupational disease. For the reasons stated below, we reverse, and we remand with directions.

II. BACKGROUND

Rue is currently employed with DCC and has worked as a corrections officer with DCC for 9 years. As a corrections officer, one of Rue's job responsibilities includes responding to a "code blue," which is an altercation between inmates or an altercation between inmates and an officer. On January 22, 2004, Rue and several officers responded to a code blue after an inmate became "highly agitated." During the exchange, the inmate struck one of the responding officers, a Captain Lee, above his eye. As a result, Captain Lee began to bleed, and his blood got on Rue as Rue and the officers wrestled the inmate to the ground. In the altercation, Rue sustained injuries to his neck and shoulder, and he sought medical treatment the following day. His physical injuries resolved, and his last day of treatment was January 30, 2004.

Rue filed a petition against DCC, alleging that he developed PTSD as a result of being spattered by Captain Lee's blood. Although Rue and DCC stipulated to Rue's physical injuries, the parties disputed whether Rue's mental health disorder was secondary to his physical injuries.

At trial, Rue testified that he began to experience "anxiety or mental or emotional problems" after the code blue. He testified that it was difficult for him to go to work and that he felt he "failed" Captain Lee. After the code blue, he was unsure whether he could do his job and lost almost 30 pounds because he could not eat. He slept approximately 2 to 3 hours at night, waking up with "visions of Captain Lee and his cut." Rue testified that his anxiety resulted in symptoms of sweating and shaking and caused his stomach to "knot up." He testified that he fainted at work in June 2004 and that his stress and anxiety continued to increase until August 2004. In August, he became physically unable to enter his workplace because he felt that he "just couldn't handle it." Rue did not return to work until November 2004.

Rue presented evidence by Daniel Brune and Dr. Eugene Oliveto. Brune, an advanced nurse practitioner with a specialty in psychiatry, testified that he diagnosed Rue with PTSD after the code blue. Brune testified that Rue told him that the "imagery of having blood on him from his captain reinforced his failure." The trial court asked Brune whether the blood spatter was an essential part of the PTSD or whether it was simply reinforcement. Brune answered that the blood spatter was "more of a reinforcement . . . of [Rue's] perception of that event." Brune testified that Rue had internalized that he was at fault because Rue felt it was his job to protect Captain Lee.

Rue offered into evidence a report authored by Dr. Oliveto that provided a psychiatric evaluation of Rue. In describing the code blue, the evaluation stated:

A prisoner became agitated and belligerent. . . . Rue's captain became involved and the prisoner cut him with a razor blade, significantly enough that the blood [spattered] on . . . Rue. This incident became traumatic for him and . . . he had difficulties going to his job. He could not sleep at night, thinking about this incident. His appetite changed and he had a lot of somatic anxiety.

The report indicated that Rue was "highly symptomatic of [PTSD], including intrusive thoughts of the incident plus a lot of shame and guilt because he believed he should have prevented his captain from getting injured and that he should have never been involved in the incident." The report addressed Rue's perception of what triggered the PTSD; Dr. Oliveto stated, "When I asked [Rue] about anything that may have triggered his acute [PTSD] in August after working for six months, he could not identify one factor." The report found that Rue suffered from "acute [PTSD] secondary to the incident described above at work." After Dr. Oliveto's psychiatric evaluation, Rue's attorney sent a letter to Dr. Oliveto, asking, "Is it your opinion . . . that the care and treatment received by [Rue] is . . . secondary to [PTSD] suffered by [Rue] as a result of the work-related incident of January 22, 2004?" In response, Dr. Oliveto wrote on the blank line, "Yes, see my report."

The trial court found that Rue's PTSD was compensable. The trial court awarded Rue temporary total disability from August to November 2004 and awarded Rue disability benefits for future PTSD treatment. The trial court stated, "The first issue set out in the pretrial order is whether being spattered by blood is an injury as defined by § 48-151(4) or an occupational disease." The trial court found that the spattering of blood is not an occupational disease. The trial court found that it was unprepared to say whether spattering by blood constituted violence to the physical structure of the body and that such a finding was unnecessary because Rue had suffered an injury as stipulated by the parties. The court reasoned:

The Court understands the evidence to be that [Rue] experienced a profound sense of failure in what he perceived to be his duty to protect Captain Lee and to prevent him from coming to harm. According to Daniel Brune, the imagery of the blood was a feature or symptom of [Rue's PTSD] and reinforced his sense of failure but it was not the blood [spatter] standing alone that caused the disorder. Dr. Eugene Oliveto responded affirmatively in Exhibit 23 to the second question posed to him. That question was phrased in terms of [Rue's PTSD] being suffered as a result of the work related incident of January 22, 2004, when [Rue] responded to the code blue and was injured. Dr Oliveto's response leads the Court to conclude that [Rue's] physical injuries were a cause of his [PTSD] in addition to the causation arising from the sense of failure.

The trial court found that it was clear that Rue suffered psychiatric injury accompanied by violence to the physical structure of the body and cited Bekelski v. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942). The review panel affirmed, basing its finding upon evidence presented by Brune and Dr. Oliveto. The review panel affirmed the trial court's finding denying Rue's cross-appeal, reasoning that to conclude the spattering of blood constitutes an occupational disease, without first finding a physical injury, is contrary to Nebraska law. This appeal and cross-appeal timely followed.

III. ASSIGNMENTS OF ERROR

On appeal, DCC assigns two errors. First, DCC asserts that the trial court erred in finding that Rue's PTSD was causally related to his shoulder injury. Second, DCC asserts that the trial court erred in finding that Rue's PTSD was compensable. On cross-appeal, Rue asserts that the trial court erred in rejecting Rue's claim that his PTSD could constitute an occupational disease.

IV. ANALYSIS
1. STANDARD OF REVIEW

An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Morris v. Nebraska Health System, 266 Neb. 285, 664 N.W.2d 436 (2003); Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003).

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of the trial judge who conducted the original hearing. Morris, supra; Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002); Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001). Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Morris, supra; Frauendorfer, supra.

An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Morris, supra; Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).

2. CAUSATION AND COMPENSABILITY OF PTSD

DCC challenges the trial court's finding that Rue's PTSD resulted from his shoulder, back, and hip injuries and was therefore compensable. The trial court found that Rue's physical injuries and his sense of failure caused his PTSD, and based its finding upon Dr. Oliveto's response to exhibit 23, question 2. The trial court concluded that because Rue "suffered psychiatric injury accompanied by violence to the...

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