Sandel v. Packaging Co. of America

• Decision Date: 02 April 1982
• Docket Number: No. 44388,44388
• Parties: Dorothy SANDEL, Appellee, v. PACKAGING COMPANY OF AMERICA, Appellant.
• Court: Nebraska Supreme Court

Page 910

317 N.W.2d 910

211 Neb. 149

Dorothy SANDEL, Appellee, v. PACKAGING COMPANY OF AMERICA, Appellant.

No. 44388.

Supreme Court of Nebraska.

April 2, 1982.

Syllabus by the Court

1. Workmen's Compensation: Appeal and Error. In reviewing workmen's compensation cases the Supreme Court is not free to weigh the facts anew. The Supreme Court's standard of review accords to the findings of the compensation court the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong.

2. Workmen's Compensation: Appeal and Error. An order of the compensation court may be reversed or set aside with respect to the evidence only where there is not sufficient evidence in the record to warrant the order or judgment. In testing the sufficiency of the evidence to support the findings, every controverted fact must be resolved in favor of the successful party and he should have the benefit of every inference that can be drawn therefrom. Such findings on rehearing will not be set aside on appeal unless clearly wrong.

3. Workmen's Compensation: Words and Phrases. The exertion "greater than nonemployment life" test is to be applied by the Supreme Court only in cases involving heart attacks allegedly caused by the activities or stress of employment.

4. Workmen's Compensation: Words and Phrases. The "objective symptoms" requirement of the Nebraska Workmen's Compensation Act is satisfied if the symptoms manifest themselves according to the natural course of such things without any independent intervening cause.

5. Workmen's Compensation: Words and Phrases. For purposes of the Nebraska Workmen's Compensation Act, "suddenly and violently" does not mean "instantaneously and with force," but rather the element is satisfied if the injury occurs at an identifiable point in time requiring the employee to discontinue employment and seek medical treatment.

6. Workmen's Compensation: Attorney Fees. Where an employee's injury, which previously was diagnosed as continuing, attains maximum healing so that on further hearing a definite permanent award can be made, the employer is not deemed to have obtained a reduction in the award so as to deprive the employee of a statutory right to an attorney fee.

Theodore J. Stouffer and Patrick B. Donahue of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Betty L. Egan and J. Joseph McQuillan of Walsh, Walentine, Miles, Fullenkamp & O'Toole, Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

The appellant, Packaging Company of America (PCA), the employer of Dorothy Sandel (Sandel), appeals from an order entered by a three-judge Workmen's Compensation Court upon rehearing which found that Sandel had sustained a compensable accident for which she was entitled to receive workmen's compensation benefits. The principal error assigned by PCA is that the three-judge compensation court erred in finding that Sandel had sustained an accident within the meaning of the Nebraska Workmen's Compensation Act, Neb.Rev.Stat. §§ 48-101 to 48-1,109 (Reissue 1978). We affirm.

PCA, a manufacturer of cardboard boxes, has employed Sandel since 1967. Her first work for PCA involved operating a semiautomatic labeling machine. In 1970 she became an airhammer operator. Her work involved making creases in a load of cartons and removing excess material off of the boxes. Sometime between 1970 and 1973 Sandel developed a "radial humeral bursitis" in her right arm. She was required to be away from her work for approximately 3 to 4 weeks and to receive medical treatment by Dr. Joseph Gross. Following the treatment, she returned to work and continued as an airhammer operator for approximately 1 more year. During that time she experienced no difficulty with her arm. In 1974 or 1975 PCA transferred Sandel from her position as an airhammer operator to that of a forklift driver, where again she experienced no difficulty with her right arm.

In November of 1979 Sandel was assigned the job of running a "slitter-scorer" machine. This machine takes, cuts, and creases pieces of cardboard. To perform her task, Sandel would stand by her machine at which a pile of corrugated sheets would be set. She would put her arm underneath the sheets of cardboard, pick them up, turn them over, and put them on top of the machine, usually three at a time. The sheets varied in size, but were ordinarily 80 X 97 inches, though they could be as large as 120 inches. Each sheet weighed 6 to 8 pounds. When Sandel had placed approximately 10 sheets on the machine, she would feed the pieces through the machine one at a time. She would have to give each piece of cardboard a shove to get it into the machine. Once the pieces came out of the other side of the machine, Sandel would take the pieces of cardboard off the machine with the same lifting, turning motion she used to place them on the machine. In a single shift, Sandel would process approximately 300 sheets.

According to her own testimony, Sandel began to experience physical discomfort when she transferred from her job as a forklift driver to that of operating the slitter-scorer machine. In December of 1979 or January of 1980 she began to have problems with her left arm. At that time she consulted a physician but missed no work. In March of 1980 Sandel first began to notice pain in her right elbow which gradually became worse until May of 1980 when she was unable to continue work. Specifically, on the morning of May 29, 1980, at 11:30 a. m., she noticed that her arm had begun swelling and that the pain had increased severely. She reported to the first aid station and a doctor's appointment was arranged for her. Ultimately, the first physician referred her to Dr. Timothy Fitzgibbons who first saw Sandel on June 12, 1980. Dr. Fitzgibbons diagnosed her condition as "lateral epicondylitis"--an inflammation of the lateral epicondyle, the bony prominence by the elbow. This condition is commonly referred to as "tennis elbow."

Dr. Fitzgibbons testified that in his medical opinion, based upon the objective symptoms and Sandel's history, her condition was the result of repetitive flexion-extension of her hand and wrist due to her employment. Dr. Fitzgibbons further testified that when a condition had remained dormant for a long period of time and then reoccurred, he would be reasonably certain that the reoccurrence was due to the most recent trauma experienced. Dr. Fitzgibbons further testified that while bursitis or tennis elbow is a fairly common affliction of life, it generally arises because of specific activities which require repeated flexion and extension of the arm over a substantial period of time. In this regard, Sandel testified that her off-work habits did not require her to engage in any repeated flexion-extension activity over long periods of time. The evidence indicated that the only time she engaged in repetitive flexion-extension activity was in the course of her employment.

At the first hearing the single-judge Workmen's Compensation Court found that Sandel had sustained a compensable accident and entered an award of temporary total disability, as well as the payment of various medical expenses incurred in connection with her treatment. On rehearing, a majority of the three-judge court affirmed the finding of the single-judge court but modified the award to the extent that Sandel receive the sum of $158.13 per week from June 4, 1980, to January 23, 1981, and thereafter, and in addition thereto, the sum of $158.13 per week for 21.5 weeks for 10 percent permanent partial disability to her right arm. Sandel was further awarded an attorney fee in the amount of $500 for the services of her attorney in the rehearing. It is from that award that PCA appeals to this court, principally contending that the compensation court erred in finding that Sandel had sustained an accident within the meaning of the Nebraska Workmen's Compensation Act.

Specifically, PCA's argument is to the effect that the evidence in this case fails to disclose the requisites of a compensable injury under the act, to wit, (1) an external cause of accidental character, whether a single traumatic event or a combination of traumatic events, or an internal effect which was unexpected or unforeseen, (2) either of which occurs suddenly and violently, and (3) which produces at the time objective symptoms of injury.

Furthermore, PCA argues that where the disability is caused by both a personal risk and employment exertion, the employee must prove that the employment exertion is greater than the exertion of an average person's nonoccupational life and that the employment exertion materially and substantially contributed to the resultant disability.

In proceeding to review an appeal from a three-judge Workmen's Compensation Court, we are limited in what independent action we may take. In Davis v. Western Electric, 210 Neb. 771, 778, 317 N.W.2d 68, 72 (1982), we again pointed out the oft-cited rules to the effect that "[i]n reviewing workmen's compensation cases this court ... ' "is not free ... to weigh the facts anew. Our standard of review accords to the findings of the compensation court the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong." ' " See, also, Erving v. Tri-Con Industries, 210 Neb. 339, 314 N.W.2d 253 (1982). Furthermore, in Davis, supra, 210 Neb. at 778, 317 N.W.2d at 72, we said: "[T]he order of the compensation court ' "may be reversed or set aside with respect to the evidence only where there is not sufficient evidence in the record to warrant the order or judgment. In testing the sufficiency of the evidence to support the findings, every controverted fact must be resolved in favor of the successful party and he should have the benefit of every inference that can be drawn therefrom .... Such findings on rehearing...