Schlup v. Auburn Needleworks, Inc.

• Decision Date: 24 January 1992
• Docket Number: No. 90-1264,90-1264
• Citation: 479 N.W.2d 440,239 Neb. 854
• Parties: , 14 A.L.R.5th 963 Dorothy SCHLUP, Appellee, v. AUBURN NEEDLEWORKS, INC., Appellant.
• Court: Nebraska Supreme Court

Page 440

479 N.W.2d 440

239 Neb. 854, 14 A.L.R.5th 963

Dorothy SCHLUP, Appellee, v. AUBURN NEEDLEWORKS, INC., Appellant.

No. 90-1264.

Supreme Court of Nebraska.

Jan. 24, 1992.

Syllabus by the Court

1. Appeal and Error. This court will not consider assignments of error which are not discussed in the proponent's brief.

2. Workers' Compensation: Evidence: Appeal and Error. Findings of fact by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside on appeal unless clearly wrong. In testing the sufficiency of the evidence to support findings of fact made by the court after rehearing, the evidence must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

3. Workers' Compensation. Under the provisions of the Workers' Compensation Act, compensation is allowed when personal injury is caused to an employee by an accident or occupational disease, arising out of and in the course of his or her employment, if the employee was not willfully negligent at the time of receiving such injury.

4. Workers' Compensation. While it is quite clear that a condition resulting from the cumulative effects of repeated work-related trauma has some characteristics of both an accidental injury and an occupational disease, the compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the statutory definition of accident.

5. Workers' Compensation: Words and Phrases. An accident is defined in the Nebraska Workers' Compensation Act as an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.

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

7. Workers' Compensation. The third specification in Neb.Rev.Stat. § 48-151(2) (Reissue 1988), that the accident produce objective symptoms, is satisfied if the symptoms manifest themselves according to the natural course of such things without any independent intervening cause.

8. Workers' Compensation: Proof. To recover compensation benefits, an injured worker is required to prove by competent medical testimony a causal connection between the alleged injury, the employment, and the disability. The injured worker must show, by a preponderance of the evidence, that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act.

9. Workers' Compensation. Whether a plaintiff in a Nebraska workers' compensation case is totally and permanently disabled is a question of fact.

10. Workers' Compensation: Words and Phrases. Total and permanent disability contemplates the inability of the worker to perform any work which he or she has the experience or capacity to perform. It does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do.

11. Workers' Compensation: Proof. A claimant is entitled to an award under the Workers' Compensation Act for a work-related injury and disability if the claimant shows, by a preponderance of evidence, that the claimant sustained an injury and disability proximately caused by an accident which arose out of and in the course of the claimant's employment, even though a preexisting disability or condition has combined with the present work-related injury to produce the disability for which the claimant seeks an award.

12. Workers' Compensation. Total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps.

Jill Gradwohl Schroeder of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellant.

J. Michael Fitzgerald of Carpenter, Rowen & Fitzgerald, P.C., Omaha, for appellee.

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

FAHRNBRUCH, Justice.

Auburn Needleworks, Inc., appeals a Nebraska Workers' Compensation Court finding that the appellee, Dorothy Schlup, was rendered totally and permanently disabled as a result of an accident arising out of and in the course of her employment at the appellant's factory.

We affirm the decision of a three-judge panel of the Workers' Compensation Court.

In summary, Auburn Needleworks claims that the Workers' Compensation Court erred in finding that Schlup (1) was involved in an accident arising out of and in the course of her employment with Auburn Needleworks; (2) had "right and left wrist [sic] problems" as a result of the accident; (3) was permanently and totally disabled and entitled to workers' compensation benefits as a result of her accident; and (4) is entitled to benefits in excess of those provided for the loss of two members of her body, if in fact she is entitled to workers' compensation benefits for being totally and permanently disabled.

Auburn Needleworks has claimed the Workers' Compensation Court erred in awarding Schlup medical and hospital expenses, but has failed to argue that assignment of error. This court will not consider assignments of error which are not discussed in the proponent's brief. See State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991).

STANDARD OF REVIEW

Findings of fact by the Nebraska Workers' Compensation Court after rehearing have the same force and effect Cline v. County Seat Lounge, 239 Neb. 42, 48, 473 N.W.2d 404, 408 (1991).

as a jury verdict in a civil case and will not be set aside on appeal unless clearly wrong.... In testing the sufficiency of the 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.... Every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.

FACTS

Schlup, who at the time of trial was 54 years old, had been employed by Auburn Needleworks as a seamstress for 34 years, but left that company's factory work force intermittently to perform other menial labor. Her final employment at the appellant's factory was from 1982 until she left just prior to wrist surgery in June 1987. During her last year at Auburn Needleworks, Schlup performed a different task on the sewing assembly line than she had done previously. This new task required her to attach collars, cuffs, pockets, and zippers to denim jackets and jeans. Schlup had to pull, tug, and push the denim through the sewing machine she used. She also had to lift and carry the bundles of material she sewed, which bundles sometimes weighed up to 20 or 30 pounds.

As relevant here, the appellee's physical complaints began in March or April 1987. It was then that Schlup's fingers began to tingle, hurt, and get numb. Pain shot up both arms above her elbows, compelling her at times to stop work and run warm water over her hands so she could resume her work.

Schlup sought medical attention on May 8, 1987, when she visited Dr. Dana Farris. He diagnosed Schlup's ailment as bilateral carpal tunnel syndrome, which causes pain, numbness, and decreased function of the hands. Subsequently, surgery was performed on each of the appellee's wrists.

Following the two surgeries, one of her surgeons, Dr. Brent Stromberg, opined that Schlup was limited in her ability to work. He testified that Schlup's carpal tunnel syndrome was either caused by or worsened by the repetitive heavy hand motions that she was required to do in her employment. He testified that as a result of her condition, Schlup suffered a 40-percent impairment of each hand, which related to a 15-percent impairment of both upper extremities. Dr. Stromberg gave Schlup a medical release on November 19, 1987, to see how she would do at work. The appellee was able to work for only 1 day, when her hands began to swell and pain again restricted her ability to function. On February 11, 1988, Schlup was diagnosed by Dr. Stromberg as suffering from reflex sympathetic dystrophy in her hands, a physical condition in which pain and discomfort continue even after the initial reason for the pain is resolved.

On June 21, 1988, nearly a year after her surgeries, Dr. Stromberg again released Schlup for work with specific limitations that restricted her from lifting anything in excess of 10 to 15 pounds. Dr. Stromberg's restrictions required the appellee to avoid repetitive hand activities. These restrictions precluded Schlup from returning to employment at the Auburn Needleworks factory. Schlup continued to suffer from bilateral median nerve infirmities and pain, according to Dr. Stromberg.

Schlup testified that she had problems picking up and grasping objects, that she could not pick up a cup of coffee without using both hands, and that most daily household tasks caused her pain.

The...