*1 760 appellee, Edwin and v. cross-appellant, Brokaw,
Dale appellant cross-appellee. and Robinson, 2d 461
164 N.W. January 24, 1969. No. 36902. Filed appellant. Story, for Parker, Carl & appelle,e. Otte, i& for Jewell J., C. Boslaugh, White;, Carter, Spencer, before Heard JJ. Newton, and Smith, McC'own, McCown, J. upon case based a
This is workmen’s commonly accident, cerebral vascular known plaintiff recovered an award before the stroke. single judge Court; which Workmen’s by minor modifications affirmed, ap- later affirmed on banc; en Court peal court. to the district years plaintiff, 44 and was old Brokaw, Dale hauling truck
employed to defendant drive For several also do farm work. and feed cattle April prior 1966, had been work- months driving p.m., a truck ing or 10 to about from a.m. he, April hauling ar- 21, 1966, cattle. On feed and at about 7 am. farm work at the defendant’s rived up Ray picked Nebraska, where Foster, He drove Ewing near a farm Krueger, went farmer, they picked up pur- Krueger had two bulls whch where They weighed chased. then Foster, bulls, returned to portable attached chute to cattle truck. alone, Krueger ahead farm while went to the *2 Krueger remained 15 or Foster for 20 minutes. When plaintiff Krueger farmyard the arrived at farm, the the muddy was and a mudhole about 20 to 30 was there gate pen feet The across. where the bulls were the bp placed place to was some 40 to where 50 feet from the parked. the truck was gate The mudhole was between necessary to and the un- unload, truck. To it was pull portable, hook the from cattle chute the truck and through gate, it back the mudhole to the and then portable tongue truck to the chute. The chute steel had plank and frame It with wooden and floor. sides weighed mounted on two wheels. 400 It rubber-tired pounds. plaintiff to 500 from unhooked chute tongue by pulling jerking the truck had and and on gotten it some 30 to 35 the truck and feet from fee,t gate from the and couldn’t mudhole, and get Krueger any it farther alone. At this time Mr. ar- plaintiff leaning against rived from town and found the although plaintiff sweating, the chute. The it was day, lively a fairly and he not as cool seemed slower and Krueger. plaintiff Krueger to Mr. told he couldn’t pulled that, stand more much and that the chute ten Krueger plaintiff times as hard mud. and together got gate plaintiff the chute to the and the backed they the truck it and to unloaded bulls. Krueger’s plaintiff ar- testified that right dizzy
rival that he was the first time felt or his leg Krueger arm numb. felt that when testified hurry, plaintiff he plaintiff but he the farm said he left slowly. The went the defendant’s walked home from the to
Krueger meal, farm noon after his City, Iowa, to drove his Sioux a load of feed truck help Plainview, Nebraska. He didn’t be delivered trip Plainview, On a rim on load the feed. wheel broke. Plaintiff and. the defendant, who had come along, and two men from a garage it. changed The plaintiff then drove the truck Plainview, but the store was closed he did not unload the feed. Defendant testi- fied that on the trip Plainview to the defendant’s farm, the told him arm was “kind of going to sleep.” The plaintiff went home from the de- fendant’s farm, arriving about 9 and although his p.m., meal ready, eat, didn’t went directly but to bed.
When awoke 22nd, on April he could not stand nor talk up very well. He was taken to and his hospital condition diagnosed as a cerebral vascu- lar accident with paralysis arm right leg facial paralysis.
Plaintiff had good health prior April been 1966. None of the doctors could find any pathological or organic causes, such constitutional weaknesses known circulatory conditions.
Doctors and Schabauer Kopp attended the plaintiff *3 at the time of his stroke and thereafter. Originally they obtained their from the history largely plaintiff’s wife and father because of the plaintiff’s inability speak. His mental also were capacities impaired. Some months later, the more they received specific history previously Nejs, outlined. Dr. a and cardiovascular sur- thoracic examined the geon some months after his stroke. He had as to the plaintiff’s information no exertions the job on he truck. except driving that a All of on a agreed the doctors as diagnosis cerebral vascular injury or Dr. Neis’ report accident. said that cause, he could find but wondered if have might an an thrown embolis. found no evidence of Kopp Dr. He that, embolism. in his over-exer- opinion, testified a tion must be contrib- kind described previously of the cerebral vascular accident. uting cause be a Dr. testified over-exertion con- may Schabauer can be or cause, contributing or stress tributing trig- a stroke. He also testified factor gering moving ground may muddy of the have been a chute on contributing physical triggering and that the factor, or preceding stroke activities over the weeks actual system and, can be an undue stress to considered certainty therefore, be considered with reasonable can contributing as a factor. ordinarily mere defendant exertion contends acci- cannot constitute an
incident to pre- injury awith dental and that exertion combined existing a com- disease constitute or condition does not We, pensable injury. agree. cannot 48-151(2), 1963. Section R. R. S. was amended “injury” word “event” The word was substituted Com- “accident” in the Workmen’s in the definition of pensation language significant specific with Act, and respect reads: added. section now That to causation unless as used in act shall, “The word accident by meaning clearly context, is indicated different unexpected in- construed to mean be jury unforeseen an violently, happening or without objective symp- producing fault, at the human injury. shall have burden The claimant an toms of preponderance the evidence by to establish injury unexpected fact was in or unforeseen that such presump- by There shall be no caused unexpected the, occurrence of mere injury caused in fact that the unforeseen employment.” compensation statute change in the workmen’s finding single necessity trau- clearly removes “by accident” cause matic event Compensation Act requirement cause was of an accidental if satisfied, either now unexpected unforeseen, effect character, or if the *4 violently. problem in happened causation, and an ac- whether nowis as this cases such the course and in injury out of arose cidental change statutory Ne- has removed employment. minority braska from require of states which a show- ing produced that exertion which way result was in some in unusual its order establish accidental See, character. 1A Larson, of The Law Work- Compensation, pp. seq.; §§ men’s 38.00 to 519 et 38.61, (Perm. 5 Schneider, Workmen’s Text Ed.), § p. 1387, 117. overwhelming majority jurisdictions
“An of also find adequate quality accidental of the element ‘break- age’ present injuries hemorrhage, as cerebral ruptured aneurysm, ruptured aorta, vessel, broken blood apoplexy, regurgitation, hemorrhage eye, aortic pulmonary hemorrhage.” 1A Larson, of The Law Work- Compensation, § p. statutory men’s 530. The 38.20, change minority posi- has Nebraska removed here also. compensation
In a workmen’s case such this, establishng by pre- now has the burden ponderance employ- of the evidence that exertion his probability, ment, in reasonable contributed in ma- some degree terial and substantial to cause the Ob- viously, presence preexisting disease or condi- degree proof required tion would enhance estab- injury the, lish an arose out course of em- evidence, ployment. case, In this there was no that the any preexisting had disease condition which was material 'to vascular cerebral accident. In Schwabauer v. 24 N. 2d State, 620, Neb. W. competent 431, we said: “If a claimant has adduced having probative preponderantly value which trier or triers convinces the fact claimant had disability arising incurred an accident and out of and employment, notwithstanding his course of recognize may possibility trier or triers fact probability true, even a not award proper appeal and on therefrom thereon sustained.” must be City Ainsworth, Neb. 138 N.
In Welke v. *5 language 808, W. 2d we reiterated the of the Schwabauer case and said also: the area of “In certain disabilities impossible reputable it testify is for a doctor to certainty absolute that one cause and one cause alone disability. diagnosis is the reason for the Medical is * ** require greater not that a exact science. To degree compensation workmen’s in case than require say we would in is, tort the least, action thwarting purpose compensa- the basic of the workmen’s tion statute.” preponderantly
The here established that the unexpected cerebral vascular unforeseen, happened violently, produced at the objective symptoms of an think We plaintiff’s injury, evidence also established that the in probability, reasonable arose out of and in course of his judge Workmen’s Court, one banc, Court en and the district plaintiff all
court found that entitled to work- compensation findings benefits, these men’s were correct. cross-appealed ground on the has court failed allow
the district a reasonable attorney’s in district fee court. provides part: R. R. S. 48-125,
Section in “In employer appeals the event the to the district court from any judge court, award there- any of, and fails to obtain reduction the amount of may employee award, court the district allow the attorney’s against reasonable fee to be taxed as costs employer, Supreme Court shall in like man- employee attorney’s a reasonable sum ner allow the as proceedings fees for court.” court should have allowed The district reasonable attorney’s Plaintiff taxed costs. also en- fee be is attorney’s is, fee this court. Plaintiff there- titled to attorney’s $1,250 fee of a total fore, allowed services court. and in this court the district judgment court Except district costs, toas affirmed.
Affirmed. J., dissenting. C. White, case testified doctor treatment get right you “Q. it, down to Doctor,
as follows: happened *6 say why man to have this or how this can’t * * * Medically speaking, pathologically A. stroke? why only probably he speaking, can’t, I God knows no; * * * being ques- you Q. asked Do remember this did. long deposition, your the ‘Question, Whether moving chute or a combination or the hours say precipitating I Answer, cause? don’t both, were directly precipitating cause.’ conditions were that those ** * questions you Q. Do remember those and those an- questions these Uh-huh.” Lest answers swers? A. challenged being I context, as out submit that the be repetitious fairly reflects a reiteration that this record job precipi- plaintiff’s on his could have been a activities contributing tating factor to the or a occurrence of the stroke. majority opinion, extremely
In much is made of the handling heavy indulged labor chute. treat- you “Q. ment testified as follows: Would not have doctor weighed pushed much the chute to know how how he Q. much force exerted? A. And it and how No. type strong he was, of man whether he was. what big my your Q. weak, size, size how was? A. No. things important? they im- No, Those portant. are not A. are not
in We field are a little different medical bit legal interpret than in a matter.” As record following this case it leads me to the conclusions or ob- (1) prevailing state of servations: medical uncer- tainty to the connection between antecedent effort (2) here the stroke, the cause that' with antecedent merely precipitating- could have been a effort or strain contributing (3) comparative long factor, period intervening of time between the strain or effort plaintiff and the occurrence of a stroke while the this, sleeping distinguishes types case from other recovery (4) cases where has allowed, been appearance history connecting, first a reconstructed appeared man’s with this stroke for the first months after several the occurrence treating plain- stroke and after doctors had been period explained tiff upon a considerable of time. This is theory incompetent this, speak during period of time. It leaves area standpoint proof, say nebulous from the the least. should remember We that our of this examination required record here is de novo and we are as fact affirmatively proxi- finders mately find to caused, this stroke certainty, reasonable medical arising plaintiff’s employment. out of the accident Although treatment doctors at different gave lip. times in their examinations service to the ritual questions establishing the element of reasonable medical certainty, testimony I submit that their falls far short any reasonable conclusion that the has met *7 required proof the burden of under our If law. we were reviewing simply sufficiency this case to determine support jury question to verdict, entirely be different, would and even on I basis, that grave question believe there wolud be a as to the suffi- ciency of this record.
I submit that amendment to our Workmen’s change, Act did not nor was it intended change, respect the basic rules with the burden proof and the fact that the accident had to arise out employment compensable. and in the course of to be only change previous substantive made byAct the 1963 amendment was to elim- previous transitory judicial inate our pretation and rather inter- “unexpected or unforeseen event” meant solely only was meant to delete event. It “an external” injury requirement previous that a claimant show trip, slip, fall, or un- such as a an external event objective the amendment exertion. usual require- eliminate these rather fortuitous statute was primary attention in exertion to focus the ments and employment and on factual matters cases and strain require- reinforce The intent to medical causation. following proof new demonstrated ments language amendment: “There shall be in the 1963 from, presumption the mere occurrence such unex- injury, injury pected in fact that the or unforeseen employment.” injury by submit that caused by place and sustained such at the time to a employee cir- be to some must traceable second, circumstances must cumstances, such violently produced happened at have objective symptoms injury. of an the time provides: “The The statute as amended word * * * * * * shall, be construed to mean un- accident injury happening suddenly expected or unforeseen producing violently, fault, human without objective symptoms of an The claim- at the time by pre- burden of to establish ant shall have a unexpected ponderance of un- the evidence such by injury foreseen fact caused presumption be no from the mere occurrence There shall unexpected injury unforeseen that the employment.” signifi- caused It is fact Legislature, enacting the 1963 this amended cant that statutory requirement statute, felt that suddenness Legislative preserved. Bill 498, introduced in must be Legislative de- Session, the 1963 Nebraska would have requirement of “suddenness” but leted the mously was unani- Judiciary by the Committee, killed to which both referred, and the amended statute set were bills ultimately reported out a dele- out above without *8 language. of my opinion this case falls far short In meeting being employment-caused requirement happening suddenly violently producing at symptoms injury. objective of an the time This case helplessness employer of an able demonstrates to be surrounding to check and ascertain the facts re- quirement “producing objective symptoms at time injury.” of an The chute incident and the al- strain legedly surrounding it were reconstructed almost 6 alleged happening.” months after the time “sudden I do not believe that the 1963amendment to the Work- expressly men’s Act was either intended, covertly, permit enlargement compensation or liability an coverage during
into the area of health period reading In a close fact, of the history statute and the reveals that it was intended to previous judicially require- reenforce the announced proof ments of in workmen’s cases where objectively there was observable or identified acci- body. dent external to the surface of the lifting Manual effort and strain, of course, are inherent ordinary employment, course of as of course is clearly type employment present demonstrated in the open in this case. The door is now thrown estab hindsight lishment of a connection between some effort job contemporaneously by on the and a suffered stroke employee. The connection was sustained medical testimony contributing that this could have been a precipitating could have been factor. submit that only requirements this not fails to meet the factual judicial set out our statute and in our decisions contrary purposes objectives but is to the Act and the amendment prevents effectively employer the statute. It being factually or his insurer from able to check or in vestigate occurring suddenly the claimed accident violently objective producing symptoms at the time knowledge of It is common that there is a *9 50’s greater men in their incidence stroke
much holding of query whether arises as and 60’s. allowing liability today under for employers stroke this court prevent as from would circumstances these competent employing suming men the risk of otherwise enlarged tremendously liability death for because of arising type disability of “accident.” and total compensa I the trial decision in a do believe that Nor speculation converted into “medical should be tion case credulity judicial speculation judicial medi as to toas credibility.” Com The decision in the Workmen’s cal pensation divided. can come to other Court was has failed on factual that this case but conclusion interpretation per can be the most liberal under Compensation Act as amended of the Workmen’s mitted 1963. Lincoln, Lee Nebraska, v. Edward appellee, State appellant. 2d 470
164 N. W. January 24, 1969. No. 36976. Filed Carey, Lynn appellant. Jr., R. Q. Wolf and A. Meyer, Attorney General, A. H. Bernard Clarence appellee. Packett, for L. J., before Heard Spencer, Smith, White, Boslaugh, C. Judge. District JJ., Newton, Moran,
McCown,