Summary
articulating the "enhanced degree of proof" requirement for the first time
Summary of this case from Leitz v. Roberts DairyOpinion
No. 36902.
Filed January 24, 1969.
1. Workmen's Compensation. The "by accident" requirement of the Workmen's Compensation Act is satisfied, either if the cause was of an accidental character, or if the effect was unexpected or unforeseen, and happened suddenly and violently. 2. ___. In a workmen's compensation case such as this, the plaintiff has the burden of establishing by a preponderance of the evidence that exertion in his employment, in reasonable probability, contributed in some material and substantial degree to cause the injury.
Appeal from the district court for Pierce County: GEORGE W. DITTRICK, Judge. Affirmed.
Story, Carl Parker, for appellant.
Jewell Otte, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is a workmen's compensation case based upon a cerebral vascular accident, commonly known as a stroke. The plaintiff recovered an award before the single judge Workmen's Compensation Court; which was affirmed, with minor modifications by the Workmen's Compensation Court en banc; and later affirmed on appeal to the district court.
The plaintiff, Dale Brokaw, was 44 years old and was employed by the defendant to drive a truck hauling cattle and feed and also to do farm work. For several months prior to April 21, 1966, plaintiff had been working from 7 a.m. to about 9 or 10 p.m., in driving a truck and hauling feed and cattle. On April 21, 1966, he, arrived at the defendant's farm for work at about 7 a.m. He drove to Foster, Nebraska, where he picked up Ray Krueger, a farmer, and went to a farm near Ewing where they picked up two bulls which Krueger had purchased. They then returned to Foster, weighed the bulls, and attached a portable cattle chute to the truck. The plaintiff went ahead to the Krueger farm alone, while Krueger remained in Foster for 15 or 20 minutes. When the plaintiff arrived at the Krueger farm, the farmyard was muddy and there was a mudhole about 20 to 30 feet across. The gate of the pen where the bulls were to be placed was some 40 to 50 feet from the place where the truck was parked. The mudhole was between the gate and the truck. To unload, it was necessary to unhook the portable cattle chute from the truck and pull it through the mudhole to the gate, and then back the truck to the chute. The portable chute had a steel tongue and frame with wooden sides and a plank floor. It was mounted on two rubber-tired wheels. It weighed 400 to 500 pounds. The plaintiff unhooked the chute from the truck and by pulling and jerking on the tongue had gotten it some 30 to 35 feet from the truck and 15 or 20 feet from the gate and in the mudhole, and couldn't get it any farther alone. At this time Mr. Krueger arrived from town and found the plaintiff leaning against the chute. The plaintiff was sweating, although it was a fairly cool day, and he seemed slower and not as lively to Mr. Krueger. The plaintiff told Krueger he couldn't stand much more of that, and that the chute pulled ten times as hard in the mud. Krueger and the plaintiff together got the chute to the gate and the plaintiff backed the truck to it and they unloaded the bulls.
The plaintiff testified that the time of Krueger's arrival was the first time that he felt dizzy or his right arm and leg felt numb. Krueger testified that when the plaintiff left the farm he said he was in a hurry, but he walked slowly. The plaintiff went to the defendant's home from the Krueger farm and after his noon meal, drove his truck to Sioux City, Iowa, for a load of feed to be delivered in Plainview. Nebraska. He didn't help load the feed. On the trip to Plainview, a rim on a wheel broke. Plaintiff and the defendant, who had come along, and two men from a garage changed it. The plaintiff then drove the truck to Plainview, but the store was closed and he did not unload the feed. Defendant testified that on the trip from Plainview to the defendant's farm, the plaintiff told him that plaintiff's arm was "kind of going to sleep." The plaintiff went home from the defendant's farm, arriving about 9 p.m., and although his meal was ready, he didn't eat, but went directly to bed.
When the plaintiff awoke on April 22nd, he could not stand up nor talk very well. He was taken to the hospital and his condition diagnosed as a cerebral vascular accident with paralysis of the right arm and leg and facial paralysis.
Plaintiff had been in good health prior to April 21, 1966. None of the doctors could find any pathological or organic causes, such as constitutional weaknesses or known circulatory conditions.
Doctors Kopp and Schabauer attended the plaintiff at the time of his stroke and thereafter. Originally they obtained their history largely from the plaintiff's wife and father because of the plaintiff's inability to speak. His mental capacities were also impaired. Some months later, they received the more specific history previously outlined. Dr. Neis, a thoracic and cardiovascular surgeon examined the plaintiff some 2 months after his stroke. He had no information as to the plaintiff's exertions on the job except that he was driving a truck. All of the doctors agreed on the diagnosis as a cerebral vascular injury or accident. Dr. Neis' report said that he could find no cause, but wondered if he might have thrown an embolis. Dr. Kopp found no evidence of an embolism. He testified that, in his opinion, over-exertion of the kind previously described must be a contributing cause of the plaintiff's cerebral vascular accident. Dr. Schabauer testified that over-exertion may be a contributing cause, or stress can be a contributing or triggering factor to a stroke. He also testified that the moving of the chute on muddy ground may have been a contributing or triggering factor, and that the physical activities over the weeks preceding the actual stroke can be considered an undue stress to the system and, therefore, can be considered with reasonable certainty as a contributing factor.
The defendant contends that mere exertion ordinarily incident to the employment cannot constitute an accidental injury and that exertion combined with a preexisting disease or condition does not constitute a compensable injury. We cannot agree.
Section 48-151 (2), R.R.S. 1943, was amended in 1963. The word "injury" was substituted for the word "event" in the definition of "accident" in the Workmen's Compensation Act, and specific and significant language with respect to causation was added. That section now reads: "The word accident as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen injury happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There shall be no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment."
The change in the workmen's compensation statute clearly removes the necessity of finding a single traumatic event as the cause of an injury. The "by accident" requirement of the Workmen's Compensation Act is now satisfied, either if the cause was of an accidental character, or if the effect was unexpected or unforeseen, and happened suddenly and violently. The problem in cases such as this is now causation, and whether an accidental injury arose out of and in the course of the employment. The statutory change has removed Nebraska from the minority of states which require a showing that the employment exertion which produced the result was in some way unusual in order to establish its accidental character. See, 1A Larson, The Law of Workmen's Compensation, 38.00 to 38.61, pp. 519 et seq.; 5 Schneider, Workmen's Compensation Text (Perm. Ed.), 1387, p. 117.
"An overwhelming majority of jurisdictions also find adequate accidental quality in the element of `breakage' present in such injuries as cerebral hemorrhage, ruptured aneurysm, ruptured aorta, broken blood vessel, apoplexy, aortic regurgitation, hemorrhage in eye, and pulmonary hemorrhage." 1A Larson, The Law of Workmen's Compensation, 38.20, p. 530. The statutory change has removed Nebraska from the minority position here also.
In a workmen's compensation case such as this, the plaintiff now has the burden of establishing by a preponderance of the evidence that exertion in his employment, in reasonable probability, contributed in some material and substantial degree to cause the injury. Obviously, the presence of a preexisting disease or condition would enhance the degree of proof required to establish that an injury arose out of and in the, course of employment. In this case, there was no evidence that the plaintiff had any preexisting disease or condition which was material to a cerebral vascular injury or accident.
In Schwabauer v. State, 147 Neb. 620, 24 N.W.2d 431, we said: "If a claimant has adduced competent evidence having probative value which preponderantly convinces the trier or triers of the fact that claimant had an accident and incurred a disability arising out of and in the course of his employment, notwithstanding the trier or triers of the fact may recognize a possibility or even a probability that this was not true, an award of compensation thereon is proper and on appeal therefrom must be sustained."
In Welke v. City of Ainsworth, 179 Neb. 496, 138 N.W.2d 808, we reiterated the language of the Schwabauer case and said also: "In the area of certain disabilities it is impossible for a reputable doctor to testify with absolute certainty that one cause and one cause alone is the reason for the disability. Medical diagnosis is not that exact a science. * * * To require a greater degree of proof in a workmen's compensation case than we would require in a tort action is, to say the least, thwarting the basic purpose of the workmen's compensation statute."
The evidence here preponderantly established that the cerebral vascular injury was unexpected or unforeseen, happened suddenly and violently, and produced at the time objective symptoms of an injury. We think the evidence also established that the plaintiff's injury, in reasonable probability, arose out of and in the course of his employment.
The one judge Workmen's Compensation Court, the Workmen's Compensation Court en banc, and the district court all found that the plaintiff was entitled to workmen's compensation benefits, and these findings were correct.
The plaintiff has cross-appealed on the ground that the district court failed to allow the plaintiff a reasonable attorney's fee in the district court.
Section 48-125, R.R.S. 1943, provides in part: "In the event the employer appeals to the district court from the award of the compensation court, or any judge thereof, and fails to obtain any reduction in the amount of such award, the district court may allow the employee a reasonable attorney's fee to be taxed as costs against the employer, and the Supreme Court shall in like manner allow the employee a reasonable sum as attorney's fees for the proceedings in that court."
The district court should have allowed a reasonable attorney's fee to be taxed as costs. Plaintiff is also entitled to an attorney's fee in this court. Plaintiff is, therefore, allowed a total attorney's fee of $1,250 for services in the district court and in this court.
Except as to costs, the judgment of the district court is affirmed.
AFFIRMED.