Sheridan v. Catering Management, Inc.

• Decision Date: 07 January 1997
• Docket Number: No. A-96-399,A-96-399
• Citation: 5 Neb.App. 305,558 N.W.2d 319
• Parties: Mary H. SHERIDAN, Appellee, v. CATERING MANAGEMENT, INC., doing business as 1st Avenue Bar & Grill, and Milwaukee Insurance Company, Appellants.
• Court: Nebraska Court of Appeals

Page 319

558 N.W.2d 319

5 Neb.App. 305

Mary H. SHERIDAN, Appellee, v. CATERING MANAGEMENT, INC., doing business as 1st Avenue Bar & Grill, and Milwaukee Insurance Company, Appellants.

No. A-96-399.

Court of Appeals of Nebraska.

Jan. 7, 1997.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1993), 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.

2. Workers' Compensation: Appeal and Error. Findings of fact made by the Workers' Compensation Court after review have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous.

3. Workers' Compensation: Judgments: Appeal and Error. An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.

4. Workers' Compensation: Proof. To recover compensation benefits, an injured worker is required to prove by competent medical testimony a causal connection between the employment and the alleged injury or disability.

5. Workers' Compensation: Expert Witnesses. Unless its nature and effect are plainly apparent, an injury is a subjective condition requiring an expert opinion to establish a causal relationship between the incident and the injury or disability.

6. Trial: Evidence. The Frye test, as established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), is the appropriate test to use in determining the admissibility of novel scientific evidence.

7. Trial: Evidence. The Frye standard of general acceptance within a particular scientific field, as established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), has been employed as a special foundational requirement for novel or new scientific devices or processes involving the evaluation of physical evidence, such as lie detectors, experimental systems of blood typing, voiceprints, identification of human bite marks, microscopic analysis of gun residue, and human leukocyte antigen testing.

8. Trial: Evidence: Physicians and Surgeons. The Frye test, as established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), is inapplicable where there is no claim that a novel or newly developed scientific device or process is utilized by a physician in the test under consideration.

9. Workers' Compensation: Evidence: Physicians and Surgeons: Proof. In a workers' compensation case involving occupational disease, a claimant is not required to prove that the treating physician's opinions, diagnosis, or treatment satisfies either the Daubert test, as established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), or the Frye test in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

10. Workers' Compensation: Evidence: Physicians and Surgeons: Expert Witnesses: Testimony. A licensed physician who has examined and treated a claimant in a workers' compensation case and who has past experience with patients suffering from the same types of symptoms is qualified to give an expert opinion about the claimant's symptoms, and such testimony does not have to meet the requirements of the Frye test, as established in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

11. Workers' Compensation: Rules of Evidence: Appeal and Error. The Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence, and admission of evidence is within the discretion of the Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion.

12. Evidence: Expert Witnesses: Testimony. Regarding the use of evidence based on the opinion of a medical expert, the witness must qualify as an expert, the witness' testimony must assist the trier of fact to understand the evidence or determine a fact in issue, the witness must have a factual basis for the opinion, and the testimony must be relevant.

13. Workers' Compensation: Proof. A claimant is not required to prove that a diagnosis is universally recognized by and agreed upon in the medical community.

14. Workers' Compensation: Expert Witnesses. Triers of fact, including the Workers' Compensation Court, are not required to take the opinions of expert witnesses as binding.

15. Workers' Compensation: Expert Witnesses. It is for the Workers' Compensation Court to determine which, if any, of the expert witnesses to believe.

Walter E. Zink II, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellants.

Darrell K. Stock, of Snyder & Stock, Lincoln, for appellee.

MILLER-LERMAN, C.J., and HANNON and IRWIN, JJ.

HANNON, Judge.

Catering Management, Inc., doing business as 1st Avenue Bar & Grill, and Milwaukee Insurance Company, appeal from the judgment of the Workers' Compensation Court review panel, which affirmed the trial judge's finding that Mary H. Sheridan suffered brain damage as a result of exposure to pesticides arising out of and in the course of her employment with Catering Management. For the reasons set forth below, we affirm.

FACTUAL BACKGROUND

Sheridan, age 33 at trial, worked as a bartender at the 1st Avenue Bar & Grill beginning in June 1993. As part of her duties, she normally staffed the bar by herself and ran the cash register. She also served as a cocktail waitress one night a week.

Sheridan worked the night of Saturday, September 18, 1993, and closed the bar at approximately 1 a.m. on Sunday, September 19. After the bar was closed, Larry Rezac, an exterminator, came to spray the premises for cockroaches, which he did on a monthly basis. There is evidence that Rezac had been coming more frequently in the months prior to September 19. Rezac applied his normal base spray application of a chemical called Conquer in the cracks and crevices while Sheridan and other employees remained in the bar. After everyone left, Rezac power-fogged the bar with a chemical called Prentox, a mixture of pyronyl oil and Conquer. Rezac also applied a powder chemical called Drione behind the walls. The chemicals consisted of esfenvalerate, pyrethrins, and synergists. Rezac finished at 4:30 a.m. and instructed all humans to remain away for 4 hours.

Dianna Kindler, who worked in the kitchen of the bar, arrived at 8:20 a.m. on September 19 and worked until 10:30 a.m., preparing food. Kindler testified that she did not notice any fog, did not have difficulty breathing, did not notice any unusual sensations, and did not experience any physical problems afterward.

Sheridan returned at noon to clean the bar before opening it to the public. She testified that the bar was "really foggy" and "smelled awful." Using towels and a bucket of water, she washed everything in the bar that had been exposed to the chemicals. Sheridan, whose hands and arms were uncovered, continually dunked the towels into the water and wrung them out. She cleaned for approximately 2 1/2 hours, opened the bar, and then worked until midnight. She testified that while working, she experienced headaches, burning in her eyes and throat, ringing in her ears, body aches, and a feeling of nauseousness. According to her testimony, the following day, her muscles felt paralyzed and extremely sore, she could hardly talk, she was experiencing seizures, and she was having problems with blurry vision. Her husband, Steven, took her to Lincoln General Hospital.

Since September 19, Sheridan has experienced problems with her memory, vision, patience, and temper, which problems have prevented her from working and have made it difficult for her to help around the house and with her children. She testified that she experiences hundreds of "shocks through [her] body" per day and that she itches herself until she bleeds. Her husband testified that she has temper "explosions." She brought suit against Catering Management on July 15, 1994, seeking workers' compensation benefits. Trial was held in March 1995, at which time a considerable amount of expert testimony was presented, the significant portion of which we summarize below.

Dr. Carol Angle, a physician, saw Sheridan first on September 29, 1993, and then again on April 6, 1994. Dr. Angle testified that Sheridan suffered from persistent cognitive and emotional dysfunction, which Dr. Angle described as organic brain damage. Dr. Angle opined, with a reasonable degree of medical certainty, that Sheridan's organic brain damage was due to toxic encephalopathy (organic brain disease) from acute poisoning by esfenvalerate (a synthetic pyrethroid and isomer of fenvalerate), other pyrethrins (natural products used as insecticides), their synergists, and petroleum distillates on September 19, 1993. According to Dr. Angle's calculations, Sheridan could have absorbed as much as 1 percent of the total amount of the chemicals applied to the bar. Dr. Angle also testified that absorption of as little as .1 percent would have been sufficient to produce symptomatic poisoning in Sheridan.

Dr. Angle also testified concerning the nature of the chemicals to which Sheridan was exposed. Dr. Angle admitted that while there were limited clinical reports of fenvalerate poisoning, where brain damage symptoms lasted up to 1 year, there were no human reports of esfenvalerate poisoning. However, Dr. Angle testified that esfenvalerate had produced neurologic symptoms of staggering gait, tremors, and altered response to stimuli in rats and is three times as toxic as fenvalerate. Dr. Angle also testified that despite the fact that the pertinent literature suggested that those exposed to fenvalerate would be completely free of symptoms within 1 to 2 months, and...