Svehla v. Beverly Enterprises

• Decision Date: 03 June 1997
• Docket Number: No. A-96-779,A-96-779
• Citation: 567 N.W.2d 582,5 Neb.App. 765
• Court: Nebraska Court of Appeals
• Parties: Duane F. SVEHLA, Personal Representative of the Estate of Marjorie Ella Svehla, Appellant and Cross-Appellee, v. BEVERLY ENTERPRISES, d/b/a Colonial Manor, Appellee and Cross-Appellant.

Page 582

567 N.W.2d 582

5 Neb.App. 765

Duane F. SVEHLA, Personal Representative of the Estate of Marjorie Ella Svehla, Appellant and Cross-Appellee, v. BEVERLY ENTERPRISES, d/b/a Colonial Manor, Appellee and Cross-Appellant.

No. A-96-779.

Court of Appeals of Nebraska.

June 3, 1997.

Syllabus by the Court

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (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: Rules of Evidence. The Workers' Compensation Court is not bound by common law or statutory rules of evidence.

3. Workers' Compensation: Evidence: Appeal and Error. It is within the Workers' Compensation Court's discretion to decide whether or not evidence is admissible, and this determination will not be reversed absent an abuse of discretion.

4. Workers' Compensation: Appeal and Error. The findings of fact made by a trial judge of the compensation court have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

5. Evidence: Appeal and Error. When testing the sufficiency of the evidence to support the factual findings of a trial court, the evidence is considered in the light most favorable to the successful party, and the successful party is given the benefit of every inference reasonably deducible from the evidence.

6. Workers' Compensation: Appeal and Error. When the record in a workers' compensation case presents conflicting medical testimony, an appellate court will not substitute its judgment for that of the compensation court.

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

8. Workers' Compensation: Proof. In a workers' compensation case, the claimant must establish by a preponderance of the evidence that the injury for which an award is sought arose out of and in the course of employment.

9. Workers' Compensation: Appeal and Error. The determination of causation in a workers' compensation case is ordinarily a matter for the trier of fact, whose factual findings will not be set aside unless clearly wrong.

10. Workers' Compensation: Testimony. Where the testimony gives rise to conflicting inferences of an equal degree of probability so that the choice between them is a matter of conjecture, a compensation award cannot be sustained.

11. Workers' Compensation: Words and Phrases. The term "arising out of" refers to an accident and its origin, cause, and character, that is whether it resulted from risks arising within the scope of an employee's job.

12. Workers' Compensation. Under the positional risk doctrine, employees' injuries are compensable as long as their employment duties put them in positions that they might not otherwise be in which expose them to risk, even though the risk is not greater than that of the general public.

13. Workers' Compensation. Unexplained-fall cases begin with a completely neutral origin of a mishap, while idiopathic-fall cases begin with an origin which is admittedly personal and which therefore requires some affirmative employment contribution to offset the prima facie issue of personal origin.

Joseph F. Gross, Jr., of Timmermier, Gross & Burns, Omaha, for Appellant.

Anne E. Winner, of Keating, O'Gara, Davis & Nedved, P.C., Lincoln, for Appellee.

HANNON, MUES, and INBODY, JJ.

MUES, Judge.

INTRODUCTION

This action is brought by Duane F. Svehla, personal representative of the estate of Marjorie Ella Svehla, against Beverly Enterprises, doing business as Colonial Manor (Colonial Manor). A single judge of the Workers' Compensation Court dismissed the petition after finding that Duane failed to prove that Marjorie's injuries were caused by an accident arising out of her employment. The review panel affirmed, and Duane appealed. For the reasons stated herein, we affirm.

STATEMENT OF CASE

On April 4, 1994, Marjorie was working as a registered nurse at Colonial Manor, a nursing home in Clarkson, Nebraska. On this date while leaving the nursing home to go home and before getting into her car, Marjorie fell and sustained an acute subdural hematoma. Marjorie died on April 6.

Marjorie's husband, Duane, testified to the events of April 4 as follows: Marjorie arrived home some time after 7:30 p.m. and told Duane that while walking out of the nursing home to her car, she tripped and fell, loosening some teeth and chipping one tooth. Marjorie then stated, "My eyes are kind of blurry." With Duane's help, Marjorie contacted her supervisor, Spring Wendt. According to Duane, Marjorie told Wendt that she was walking to her car when she tripped and fell, loosening some teeth.

Wendt also testified as to the substance of her conversation with Marjorie. According to Wendt, she asked Marjorie if she had slipped, tripped, or fallen, and Marjorie responded that she did not know, she just remembered getting up, getting into her car, and driving home. Wendt testified that neither Duane nor Marjorie advised her that Marjorie had tripped or slipped. To the contrary, Wendt stated that Marjorie indicated that she did not know what had happened, she just found herself on the ground.

By the end of her conversation with Wendt, Marjorie had begun vomiting and her speech had become slurred. Duane immediately took Marjorie to the emergency room at Columbus Community Hospital in Columbus, Nebraska. By the time she arrived at the hospital, Marjorie was no longer communicative. After 45 minutes at the Columbus hospital, Marjorie was taken by rescue squad to Bishop Clarkson Memorial Hospital in Omaha, Nebraska. Dr. John Greene, a neurosurgeon, diagnosed Marjorie with an acute subdural hematoma and performed surgery to evacuate the hematoma. Marjorie died on April 6, 1994.

Duane testified that Marjorie normally parks in the parking lot in front of Colonial Manor. According to Wendt, there is a parking lot in front of Colonial Manor adjacent to a sidewalk leading to the front door. Wendt testified that this is a flat surface with no steps, cracks, or defects. Wendt also testified that Marjorie typically parked in this parking lot.

The record reflects that Marjorie had a history of gait imbalance prior to this incident. In 1988, Marjorie saw a physician, complaining of, among other things, an unstable gait. Marjorie saw a specialist who noted in a letter dated June 13, 1988, that Marjorie tended to lean forward when she walked. An exam revealed marked hydrocephalus or fluid around Marjorie's brain, and in 1988, a shunt was placed in her head to control the fluid and alleviate her symptoms. Duane testified that to his knowledge, after 1988, Marjorie had no trouble with dizziness or unsteadiness.

Three of Marjorie's coworkers testified otherwise. Wendt testified that Marjorie leaned forward when she walked and that her gait became more unsteady as the day wore on. According to Wendt, Marjorie frequently grabbed onto things to steady herself. A licensed practical nurse at Colonial Manor testified that she worked with Marjorie twice a week and that Marjorie had a "wider stance" than most people. She also stated that Marjorie often grabbed the rail or wall to steady herself. Another licensed practical nurse at Colonial Manor also testified that she worked with Marjorie approximately two times a week, that Marjorie typically walked with her feet "splayed," and that she looked directly down at her feet. According to this witness, Marjorie frequently grabbed railings to steady herself and was generally unsteady. This witness further attested that on April 4, 1994, between 6:30 and 7 a.m., she observed Marjorie lose her balance while walking down the hall and grab the railing to steady herself. She also stated that Marjorie was not immediately responsive to questions on this date and that she would take 10 to 15 minutes to respond.

Dr. Greene concluded, with a reasonable degree of medical certainty, that Marjorie died from an acute subdural hematoma secondary to a fall and that he could find no medical reason for the fall. He opined that "[m]ost likely [Marjorie] tripped" and stated that his opinion was based on "[c]ommon sense." Dr. Greene's opinion was based upon the history given to him that Marjorie had fallen when leaving work. He admitted that he was unaware Marjorie walked with an unsteady gait.

Dr. Annamaria Guidos, medical director of the traumatic brain injury unit at Madonna Rehabilitation Hospital, in Lincoln, Nebraska, opined that the cause of Marjorie's death was a large subdural hematoma. Dr. Guidos opined that absent a witness to the fall or a definitive history, it would be impossible for anyone to state with a reasonable degree of medical certainty the cause of the fall or the lack of a medical reason for the fall.

A petition was filed on February 9, 1995, alleging that Marjorie slipped and fell on Colonial Manor's premises, striking her head and causing injuries which resulted in her death. By answer, Colonial Manor denied that Marjorie sustained a compensable injury arising out of and in the course and scope of her employment. Following an evidentiary hearing, a single judge of the Workers' Compensation Court dismissed the petition.

The court noted that Marjorie suffered from a prior history of neurological problems, that she had in the past complained of gait disturbance, and that she had a shunt placed in her head in 1988. The court also noted the testimony of Marjorie's coworkers that on a daily basis, they noticed that Marjorie walked with a gait imbalance and leaned forward, and that she typically had to grab objects to...