Sherwood v. Gooch Milling and Elevator Co., a Div. of ADM Milling Co.

• Decision Date: 06 April 1990
• Docket Number: No. 89-681,89-681
• Citation: 453 N.W.2d 461,235 Neb. 26
• Parties: David J. SHERWOOD, Appellee, v. GOOCH MILLING AND ELEVATOR CO., A DIVISION OF ADM MILLING CO., a Minnesota Corporation, et al., Appellants.
• Court: Nebraska Supreme Court

Page 461

453 N.W.2d 461

235 Neb. 26

David J. SHERWOOD, Appellee, v. GOOCH MILLING AND ELEVATOR CO., A DIVISION OF ADM MILLING CO., a Minnesota Corporation, et al., Appellants.

No. 89-681.

Supreme Court of Nebraska.

April 6, 1990.

Syllabus by the Court

1. Workers' Compensation: Expert Witnesses. Unless the character of an injury is plainly apparent, an injury is a subjective condition, and an expert opinion is required to establish the causal relationship between an incident and the injury as well as any claimed disability consequent to such injury.

2. Trial. Determination of causation is ordinarily a matter for the trier of fact.

3. Workers' Compensation: Appeal and Error. Findings of fact made by the Workers' Compensation Court have the same force and effect as a verdict in a civil case and will not be set aside unless clearly wrong.

4. Workers' Compensation: Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact made by the Workers' Compensation Court, the evidence must be considered in the light most favorable to the successful party.

5. Workers' Compensation: Appeal and Error. Under the provisions of Neb.Rev.Stat. § 48-185 (Reissue 1988), findings of fact by the Workers' Compensation Court have the effect of a verdict in a civil case, and its judgment may not be set aside on appeal where there is evidence sufficient to support it.

6. Workers' Compensation: Words and Phrases. Total disability in the context of the workers' compensation law 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, for which the employee was trained or accustomed to perform, or any other kind of work which a person of the employee's mentality and attainments could do.

7. Workers' Compensation. Whether a worker is totally disabled is a question for the finder of fact.

8. Workers' Compensation. An injured worker's right to vocational rehabilitation services depends upon his inability to perform work for which the worker has previous training and experience.

9. Workers' Compensation. Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the Workers' Compensation Court.

10. Workers' Compensation. Neb.Rev.Stat. § 48-162.01(6) (Reissue 1988) allows the Workers' Compensation Court to award rehabilitation services when a total or partial disability is or is likely to be permanent if there is a reasonable probability that such services will enable a disabled worker to become gainfully employed or increase his or her earning capacity.

Scott A. Burcham of Baylor, Evnen, Curtiss, Grimit, & Witt, Lincoln, for appellants.

Mark D. Petersen of Healey, Wieland, Kluender, Atwood, Jacobs & Geier, Lincoln, for appellee.

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

CAPORALE, Justice.

The defendant-appellant employer, Gooch Milling and Elevator Co., a division of ADM Milling Co., and its insurance carrier, defendant-appellant Old Republic Insurance Company, challenge the award of workers' compensation benefits to the employee, plaintiff-appellee David J. Sherwood. Defendants assign as error the Workers' Compensation Court's (1) finding that Sherwood suffers from an occupational disease arising out of and in the course of his employment, (2) finding that Sherwood is temporarily totally disabled, (3) awarding Sherwood vocational rehabilitation services, and (4) awarding Sherwood certain fees and assessing certain costs against the defendants. We affirm as modified.

Sherwood began his employment with Gooch Milling on February 12, 1968, performing various tasks of physical labor. Gooch Milling's brief states that Sherwood "has a substantial history of respiratory problems dating back to the early 1970's...." Brief for appellants at 7. This assertion is apparently based upon an excerpt from a report by the National Jewish Center for Immunology and Respiratory Medicine, which states:

Mr. Sherwood was hospitalized for one week in the early 1970s, for respiratory symptoms, after the feed mill [apparently the same Gooch feed mill as the one in which he worked prior to becoming disabled] was fumigated and he was cleaning out dust. The fumigation was "phos toxin" which were pellets that led to a gas. He felt that the gas exposure, probably phosgene, was responsible for his respiratory symptoms, although he recalls that a doctor felt that perhaps he was allergic to mildew in the dust.

However, this earlier hospitalization seems to be only an isolated incident in that the record indicates that Sherwood was generally very healthy from 1968 through 1985.

Beginning in 1982, after working at various other positions at Gooch Milling, Sherwood began working as a fat coater in Gooch Milling's dogfood processing facility. As a fat coater, Sherwood operated and monitored machinery which sprayed tallow and a product named "BioDigest" onto the dogfood being processed. The air in the area where Sherwood worked as a fat coater was hot and humid and apparently contained suspended vapors from the heated liquids which were sprayed onto the dogfood.

The record indicates that when Gooch Milling began spraying BioDigest onto dogfood sometime between 1983 and 1985, the BioDigest had a strong acidic odor which irritated the throats and lungs of Gooch Milling's employees.

After Gooch Milling began using BioDigest, Sherwood began experiencing respiratory problems, including shortness of breath and coughing which frequently became so severe that it induced vomiting. On July 29, 1986, Sherwood was hospitalized as a result of severe coughing and vomiting which seemed to be induced by his on-the-job exposure to BioDigest. Sherwood was released to return to work on August 11, 1986.

Sherwood's physician, Dr. Anup K. Chakraborty, again restricted Sherwood from his occupational duties, for a 12-week period beginning in March 1987, and recommended that he not be exposed to BioDigest fumes when he returned to work in June 1987. Sherwood's duties were changed after he returned to work in June 1987, and at that time he became an "extruder operator" at Gooch Milling, a position which he had held prior to working as a fat coater. His health remained in an improved state until he was again exposed to BioDigest fumes later in August or September 1987, when Sherwood once more experienced headaches, coughing, vomiting, and shortness of breath in association with his exposure to the fumes.

On October 26, 1987, Chakraborty advised Sherwood to totally avoid exposure to BioDigest fumes. Contrary to his doctor's advice, and at the urging of his superiors at Gooch Milling, Sherwood did return to work on October 26. He also worked the next day, October 27, and on that date suffered headaches and coughing spells which resulted in vomiting. Sherwood testified that he had told his superiors at Gooch Milling that his doctor had advised him not to work on October 26. But since his superiors nevertheless told him to go to work, Sherwood did work from October 26 through October 28, because he feared the prospect of losing his employment with Gooch Milling in the event he refused to work on those dates. On October 28, before his shift had ended, Sherwood, along with his fellow employees, was escorted off the Gooch Milling premises because of an impending labor strike.

Gooch Milling paid Sherwood temporary total disability benefits in connection with his absences from work prior to October 28, 1987 (e.g., in July 1986 and from March 11, 1987, through June 7, 1987); however, Gooch Milling paid no such benefits to Sherwood after October 28, and he has not worked since that date. The labor strike which began on October 28, 1987, ended on or about January 26, 1988.

Sherwood made inquiries regarding his temporary total disability benefits and was told by Gooch Milling representative Harold Kennedy that he could not receive such benefits because he was on strike. He was also told that he could not return to work without a medical release.

In a continuing effort to alleviate Sherwood's symptoms, Chakraborty referred Sherwood to the National Jewish Center for Immunology and Respiratory Medicine in Denver, Colorado. The report by Dr. Kathleen Kreiss, director of the occupational medicine program at the center, refers to clinic visits on August 30 and 31, 1988, and September 1, 1988, and states in part:

We have seen many patients, who after noxious exposures in their work situations develop persistent respiratory complaints, including "supersensitivity" to many irritants and odors. When we do not find an organic basis for such complaints, we usually think of these symptoms as representing post traumatic stress disorder. Mr. Sherwood clearly has a physical reason for his cough, in that he wakes frequently at night from coughing. This nocturnal cough is not compatible with a psychogenic origin to his cough. Nevertheless, his impairment seems to be out of proportion to any objective tests of airways or parenchymal function. Mr. Sherwood acknowledges that he often does not vomit when it is socially unacceptable and that he feels that his coughing, headaches, and vomiting are worse in situations when he is stressed. Thus, although he has some physical reason for his cough, I think that his symptoms have been magnified, probably as a result of a post traumatic stress disorder.

There are at least two possible reasons for his persistent coughing. He describes sputum production, and often feels that his coughing is relieved for an hour or so when he is able to bring up phlegm. He describes this phlegm as extremely sticky and difficult to bring up. This is compatible with chronic bronchitis caused by occupational exposure to acid irritants. In addition, he describes stuffy nose, which is probably accompanied by postnasal drip, another common cause of...