*1 Hartwig, appellant, Unit John v. Educational Service formerly No. Unit No. Educational Service appellees. al., et

202 N. W. 2d

Filed December No. for & Olsen, appellant. Meister Lyman, Hancock, appellees. R. James for Smith, J.,C. White, Spencer, Boslaugh, before Heard JJ. Newton, Clinton, McCown, J. McCown, case. The compensation Work-

This Court dismissed plaintiff’s peti- men’s dismissal was tion. On of the district court. We affirm affirmed. employed by John Hartwig, The plaintiff, 1968. His duties consisted in September defendant picking delivering up various materials. educational alleged The extremely date of evidence separate indefinite. his- The three medical tories all show the 1968. Plaintiff’s evidence date late *2 1969, was in or that October November while sometime plaintiff lifting pain a was in his back he felt box, a complained person" and present. to another Plaintiff thought pulled it was muscle and work continued regularly approximately day, that and worked until pain progressed June 1, 1970. He testified that the passed. April May time or 1970, He testified that pain developed leg. July 1970, serious 27, his he consulted a doctor Scottsbluff, He Nebraska. was hospitalized August August in Scottsbluff from. 10 to 23, 1970, tests, for examination, and He was treatment. August then Denver, sent Colorado, on There he was Dr. examined ortho- Markheim, an pedic surgeon, operated plaintiff’s Sep- who on back on tember September 1970-. Plaintiff on returned to- Scottsbluff and filed his claim the in Workmen’s Compensation on Court November 23,

The medical issue of causation is critical Dr. here. performed laminectomy decompressing Markheim por- L-4, nerve at roots L-5 level and removed spinal tion of an old in this area which was fusion opinion difficulty plaintiff’s solid. His was was that joint pseudoarthrosis produced caused or false partially operation aas of a result unsuccessful fusion plaintiff’s performed many years on the back before. plaintiff’s He testified condition was the natu.ral progression preexisting of this and based condition entirely pseudoarthrosis any on his rather than in- on dustrial accident claimed. which'he physicians

The two other who testified felt that partial disability tiff had sufferéd a a result previously existing pseudoarthrosis.' and accident may conceded Markheim’s' conclusions have that Dr. agree pseudoarthrosis correct. been Both plaintiff’s condition, basis and both it conceded possible plaintiff’s that condition could have might developed any or have without traumatic inter- vention. single judge Compensation Workmen’s Court

found had failed to maintain the burden injury arising an sustained accident and employment course of and out of his dis- Compensa- plaintiff’s petition. The missed judgment tion Court en banc reaffirmed that alleged injury and also Oc- found that occurred plaintiff’s 1968 and action was there- tober November fore filed time. The out of the district court. Court was affirmed here factual determina-

The matters at issue turn on compensation case, In tions.

proof upon claimant to establish that arising by an out of and was caused Nagel, 186 Satterfield 2d 237. *3 urged is It critical. is The issue of causation Compen- rule liberal construction of applied carry- be to aid the sation Act should preponderance ing of his case rule liberal construction of The of the evidence. of applies Compensation Act the law to the sup- applicable the evidence offered to it is not port Parrish under the act. for benefits of claim made Contractors, 186 Neb. 182 & Karl Kehm Sons v. 422. N. W. 2d in the Workmen’s

In this case two trials plaintiff. adversely to the the facts Court determined determina- factual the district those On to ap- again issues. on all critical affirmed were tions Supreme peal compensation case to the aof workmen’s competent evidence reasonable there is where Court, support court, the findings trial of fact in the the to judgment, or set be modified will

order, or award 342 insufficiency

aside for of the evidence. The cause will be only considered de novo in this court the where findings supported of fact are not the evidence as Ag disclosed Gravel record. Lime, the Gifford v. & Sand 187 Co., Neb. 187 W. 2d N.

Where the claimant fails to show with reasonable certainty disability complains the of which employment, arose out of and the of course the proceeding Nagel, will be dismissed. Satterfield v. supra. clearly

In this case sup- the evidence to sufficient port the of the which complains tiff did not arise of the out and in In view of the determinations it is made, unneces- sary injury to reach issues of whether progressive latent and claim whether by the barred of limitations. statute court correct is affirmed.

Affirmed. Smith, J., result. concurring applies The court standard same review findings proponent favor of issue and findings opponent of the issue. It favor of authority mistaken. I affirm on would rule in Jerryco Motors, Inc., Adler v. (1972). Trinity See, also, Industries, Klein v.

2d 757 (1972) (Smith, p. J., ante 201 N. W. 2d Inc., concurring); Paul & cf. Fire Marine Ins. Co. St. (1969); 166 W. 2d

Hoffman, 184 Neb. N. Pros p. 1971), (4th Torts, Ed., Law ser