Union Packing Co. of Omaha, Inc. v. Klauschie

• Decision Date: 04 January 1982
• Docket Number: No. 44060,44060
• Citation: 314 N.W.2d 25,210 Neb. 331
• Parties: UNION PACKING COMPANY OF OMAHA, INC., and Fireman's Fund Insurance Company, Appellees, v. Henry F. KLAUSCHIE, Appellee, Argonaut Insurance Company, Appellant.
• Court: Nebraska Supreme Court

Page 25

314 N.W.2d 25

210 Neb. 331

UNION PACKING COMPANY OF OMAHA, INC., and Fireman's Fund Insurance Company, Appellees, v.Henry F. KLAUSCHIE, AppelleeArgonaut Insurance Company, Appellant.

No. 44060.

Supreme Court of Nebraska.

Jan. 4, 1982.

Syllabus by the Court

1.Workmen's Compensation: Appeal and Error.Findings of fact made by the Workmen's Compensation Court on rehearing have the same force and effect as a jury verdict in a civil case and, if supported by sufficient evidence, will not be disturbed on appeal unless clearly wrong.

2.Workmen's Compensation: Words and Phrases.In workmen's compensation cases the term "arising out of" describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising within the scope or sphere of the employee's job.The term "in the course of" refers to the time, place, and circumstances surrounding the accident.The two phrases are conjunctive and the claimant must establish by a preponderance of the evidence that both conditions exist.

3.Workmen's Compensation.The primary purpose of the Workmen's Compensation Act is to insure an employee against accidental injury arising out of and in the course of his employment.To accomplish this purpose the act should be liberally construed, not to find that liability exists without the required quantum of proof, but to include within the protection of the act by liberal interpretation all injuries arising out of and in the course of the employment which the act does not clearly exclude.A strict interpretation should not be resorted to in order to accomplish such exclusion.

4.Workmen's Compensation: Evidence: Appeal and Error.Where a record presents nothing more than conflicting medical testimony, we will not substitute our judgment for that of the Workmen's Compensation Court.

5.Workmen's Compensation: Words and Phrases.An accident is defined as an unexpected or unforeseen injury happening suddenly and violently and producing at the time objective symptoms of an injury.

6.Workmen's Compensation: Words and Phrases.The terms "injury" and "personal injuries" shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom.

Joe P. Cashen and Jon S. Reid of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellant.

Patrick B. Donahue of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Klauschie.

Ronald E. Frank of Sodoro, Daly & Sodoro, Omaha, for appellees Union Packing and Fireman's Fund.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

Union Packing Company of Omaha, Inc., and Fireman's Fund Insurance Company filed their petition in the Nebraska Workmen's Compensation Court seeking a determination as to whether Fireman's Fund or the Argonaut Insurance Company was liable for benefits under the Workmen's Compensation Act arising from an injury and subsequent disability suffered by an employee of Union Packing, Henry F. Klauschie.Argonaut contended that any injury sustained by the employee was not a compensable injury, and in any event the injury occurred prior to the effective dates of Argonaut's coverage, and therefore Argonaut was not liable.The court resolved both issues against Argonaut, and it has appealed to this court.We reverse.

Argonaut became the workmen's compensation insurer for Union Packing at 12:01 a. m. on April 15, 1979, following the expiration of the coverage provided by Fireman's Fund.

Henry Klauschie had been employed by Union Packing for about 11 years, approximately 10 of which years were spent trimming meat on the kill floor of the plant.Health and safety considerations required that he wear rubber boots while working, and he customarily wore two pairs of socks under the boots for comfort.Because of the nature of his duties, he would spend most of the day working on his toes and the balls of his feet.

Somewhere around the middle of March 1979, Mr. Klauschie noticed a break or blister on the ball of his right foot.In his own words, it was "a little crack or a little ... break....It is white and had a little bump on it."He did not see a doctor immediately, but instead soaked the foot in Epsom salts every evening in an attempt to cause the sore to heal.There was no swelling associated with the sore in the early stages, and Mr. Klauschie testified that there was never really any pain.

Approximately 2 or 3 weeks prior to July 16, 1979, the foot began to swell and the sore commenced to darken.Four or five days before July 16, 1979, Mr. Klauschie's son urged him to see a physician, and on July 16th he first consulted with Dr. Charles F. Brannen.Dr. Brannen found a very severely infected foot, ulcerated at the bottom and extending up to the base of the toe, with marked swelling and cellulitis of the foot extending up to the mid-foreleg.He immediately arranged for the admission of Mr. Klauschie to the hospital.Further examination disclosed that the foot was infected with Staphylococcus epidermitis and Proteus mirabilis, which eventually developed into osteomyelitis, an infection of the bone.The failure of less radical means of treatment required the amputation of the great toe, second toe, first metatarsal, and one-half of the second metatarsal, and the cartilage of the cuneiform from the right foot.

According to the testimony of Dr. Brannen, the history given to him by Mr. Klauschie revealed that the blister had been discovered some 3 weeks prior to July 16th.In the doctor's opinion, the infection developed at the site of the blister and, due to its virulent nature, could not have begun as early as June 16th.It was his opinion that the infection began "within a week from the time ... that the family began to worry about it," and at the earliest, after July 1, 1979.

Dr. Brannen testified further that, although he believed that the infection entered the system at the site of the blister, it was the continuous wearing of the rubber boots that created the proper media for the bacteria to congregate and invade the tissue.Therefore, he stated that in his opinion, with reasonable medical certainty, the infection was caused by the wearing of the boots.

Dr. Richard M. Gross is the orthopedic surgeon who performed the necessary surgery on Mr. Klauschie in August of 1979.As a part of his opinion as to causation, he referred to Mr. Klauschie's diabetic condition, which in turn caused a loss of sensation in his foot.Therefore, he opined, he was allowed to develop a pressure sore from the wearing of rubber boots which in turn resulted in a necrotic vascular ulcer.The infection then followed.In the doctor's own words: "The osteomyelitis is an expression of an infection which sets down once the necrotic vascular ulcer is formed and this is a vascular injury as the primary injury in this man.The infection is a subsequent problem.But it is all in my opinion related back to the pressure injury of wearing the boots in the packing house."He went on to explain that the blister was just an expression of the vascular injury and the ulcer a step beyond the blister.

Dr. Calvin Davis, a physician and associate professor of internal medicine at the University of Nebraska, who is a specialist in infectious diseases, testified on behalf of Argonaut.He had not examined either Mr. Klauschie or his records, and testified only on the basis of hypothetical questions.He stated that both staph epidermitis and Proteus mirabilis are common in the environment and are no more likely to be found in a packing plant than in a home or hospital.However, staph epidermitis is part of the normal skin flora of human beings, and Proteus mirabilis is a part of the normal intestinal bacterial flora.He also offered that, with a couple of exceptions, it was almost unheard of for either bacteria to...