Sorensen v. City of Omaha, Public Safety/Fire Div., 88-130

• Decision Date: 28 October 1988
• Docket Number: No. 88-130,88-130
• Citation: 430 N.W.2d 696,230 Neb. 286
• Court: Nebraska Supreme Court
• Parties: James H. SORENSEN, Appellant, v. CITY OF OMAHA, PUBLIC SAFETY/FIRE DIVISION, Appellee.

Page 696

430 N.W.2d 696

230 Neb. 286

James H. SORENSEN, Appellant, v. CITY OF OMAHA, PUBLIC SAFETY/FIRE DIVISION, Appellee.

No. 88-130.

Supreme Court of Nebraska.

Oct. 28, 1988.

Syllabus by the Court

1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which this court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

2. Workers' Compensation: Proof. Where an injury is the result of mental stimulus, in order for it to be compensable under the Nebraska workers' compensation law, the injured party must prove an unexpected or unforeseen event, happening suddenly and violently and producing at the time objective symptoms of injury and violence to the physical structure of the body.

3. Workers' Compensation: Evidence. To demonstrate violence to the physical structure of the body, the party claiming injury must produce some evidence of actual physical injury, external or internal.

Ronald L. Brown, of Brown Law Offices, P.C., Omaha, for appellant.

Herbert M. Fitle, Omaha City Atty., and Jo A. Bennett, Lincoln, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, and FAHRNBRUCH, JJ., and REAGAN, District Judge.

WHITE, Justice.

James H. Sorensen appeals an order of dismissal entered by a three-judge panel of the Nebraska Workers' Compensation Court after rehearing.

Appellant was a 21-year veteran of the City of Omaha fire division who held the rank of firefighter until he took the examination for the position of captain. He was selected from the eligibility list as a probationary captain on December 31, 1985. Pursuant to city ordinance and the contract between the City of Omaha and the Professional Firefighters Association of Omaha, Local 385, appellant was required to serve a 6-month probationary period. On satisfactory completion of the probationary period, appellant's promotion to captain was to be confirmed. On June 26, 1986, shortly before the completion of the probationary period, appellant was notified of his demotion. After reconsideration by his superiors, appellant was reappointed to a second 6-month probationary period as captain. Approximately 2 months into the second probationary period, on August 28, appellant left his job because of "harassment," "pressure," and "stress" he experienced as a result of his failure to be confirmed as a fire captain, and because of the supervision and treatment afforded to him by supervisors during both probationary periods.

Following his demotion in June of 1986, appellant was treated by his family doctor for stress and "epigastric problems with nausea, abdominal pain." In a deposition taken in October 1987, appellant's doctor testified that appellant specifically suffered from stomach pain, nausea, vomiting, psychomotor retardation, and rectal bleeding. The doctor prescribed Tagamet for epigastric pain and symptoms, and Phenergan for insomnia. It was the doctor's opinion that appellant's physical symptoms were related to job stress and that appellant was totally disabled from August 28, 1986, through the date of deposition.

The record discloses that appellant also saw the city's psychologist and a private psychologist for emotional difficulties.

On January 2, 1987, appellant filed a petition in the Nebraska Workers' Compensation Court, alleging he had suffered a stress-related physical and psychological injury in the course of his employment. The Workers' Compensation Court found the following:

On June 29 [sic], 1986, the plaintiff was in the employ of the defendant as a probationary captain of the fire division, and while so employed and on said date and while engaged in the duties of his employment he suffered gastritis and injury to his psyche as a result of an accident or occupational disease arising out of and in the course of his employment by the defendant when, at the end of plaintiff's probationary period, he was advised by his superiors that his promotion was to be rescinded or not confirmed. As a result of said accident and injury, the plaintiff incurred medical and hospital expense and was totally disabled ... [and] is still temporarily totally disabled and will remain temporarily totally disabled for an indefinite future period of time.

Accordingly, the court awarded appellant medical expenses and temporary disability compensation.

On rehearing, a three-judge panel of the Workers' Compensation Court reversed the award and dismissed appellant's petition. Citing Bekelski v. Neal Co., 141 Neb. 657, 4 N.W.2d 741 (1942), the court stated:

Plaintiff's primary complaints are emotional. He further complains of abdominal pains....

In this case the plaintiff failed to establish violence to the physical structure of the body as a result of an accident arising out of and in the course of his employment with the defendant and his petition must therefore be dismissed.

Appellant's sole assignment of error is that the rehearing panel of the Workers' Compensation Court erred in concluding that appellant had not sustained an accidental injury as that term is defined by Neb.Rev.Stat. § 48-151(2) and (4) (Reissue 1984).

We note initially that the question presented is one of statutory interpretation. Statutory interpretation is a matter of law in connection with which this court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988).

In order to recover compensation under the Nebraska workers' compensation law, an employee must show he or she suffered a personal injury caused by an accident arising out of and in the course of his or her employment. See Neb.Rev.Stat. §...