Hayes v. A.M. Cohron, Inc.
400 N.W.2d 244
Neb.
1987
Check Treatment

*1 case, however, contract of In this O’Keefe has not brought may suit to enforce rights whatever be his under his with contract Tabitha. O’Keefe brought has unemployment action to collect benefits authorized statute. Sorensen, Neb. 599, 386 N.W.2d Smith v. contains applicable the rule disposing of O’Keefe’s second assignment of error. Smith v. Sorensen teaches that a “labor contract is irrelevant to the determination of the existence of misconduct, that, appears as it generally, private labor agreements may unemployment not render law See, also, ineffectual.” Id. at 386 N.W.2d at 9. Strauss Co., v. Square D supra.

As error, his third and assignment final O’Keefe claims it improper to consider his work record as such existed before adopted Tabitha its written policy attendance in September disagree. 1984. We circumstances, Under the we find it is proper employee’s consider an history work as a course of conduct and behavior necessary constitute “misconduct” disqualification unemployment from compensation. See Roll City Middleton, 105 Idaho 665 P.2d 721 (1983). Upon our de novo case, review of the record in this we find misconduct meaning within the of 48-628(b) disqualified has O’Keefe unemployment compensation for of 9 weeks, as determined We, therefore, the district court. judgment affirm the of the district court.

Affirmed. v. A.M. Hayes, appellant. appellee, Cohron, Inc., Joanne 400 N.W.2d January 23, Filed 1987. No. 86-197. *2 Flodman, Johnson, Barlow, DeMars & DeMars of J.

James appellant. Offices, appellee. R. of Friedman Law Robert Moodie C.J., Krivosha, Boslaugh, White, Hastings, Caporale, JJ. and Shanahan, Grant, Per Curiam. Hayes, alleged she sustained appellee employee, Joanne

personal injury in out of and in the course an Cohron, A.M. appellant employer, with the employment her Inc., sudden, pain in her while sharp felt a knee when she with a co-worker.” The “lifting pound a 200 I-beam injury to Hayes found suffered accidental compensation court right leg arising out of and in the course her her being “frequently required to work on virtue of with Cohron knees,” and awarded her certain benefits under her provisions (Reissue 1984) Rev. 48-120 and of Neb. Stat. §§ assigns as Supp. 1986). appeals Cohron (Cum. 48-121 Hayes (1) finding that suffered errors the court’s (2) injury arising employment, her out of and the course of award, (3) support its finding evidence sufficient evidence, basing Hayes’ (4) receiving deposition a certain workweek. weekly upon a 45-hour benefits per work 45 hours by Cohron to was hired Hayes testified she During general crew laborer. a construction week as 3, 1985, Hayes through June April 17 employment, her percent kneel 75 required her to tasks which performed time. work, experienced pain began she

Sometime after near the end worsened swelling knees. The condition in her testified that on however, working. She May; she continued Kenney Richard employee fellow while she and June I-beams, something right in her tear lifting heavy she felt were down, Kenney been she had Hayes put I-beam told leg. Hayes continued to locate her foreman. injured, and went lighter working day, but at duties. Lincoln, Nebraska,

Hayes sought medical attention from a following day. physician This surgeon on the orthopedic Hayes stated she was during the first visit testified that *3 knees, one, right in the and especially in both experiencing pain “quite some time at the pain this experienced that she had Hayes rays that had job working on.” X showed she was physician’s abnormally kneecaps on both sides. It was the tilted “tendency suffering a of the diagnosis Hayes was from that the physician The further stated kneecap to dislocate.” years, symptoms but usually teenage in the present is condition type the person enters occur unless the afflicted do not activity Hayes performing. been had knee drug pain, the a initially prescribed a physician

The given a release on brace, therapy. Hayes was later physical loading 18,1985, went to work work. She then June to return to but, because of the than Cohron employer trucks for an other Surgery knee, days. was quit to after 3 pain right in her had 24,1985. July right the knee on performed on June 3 I-beam Hayes physician had not informed the In 4,1985, filed this suit. after she had September incident until had condition Hayes’ preexisting knee physician’s opinion caused have been aggravated, aggravation “could been repetitive June 3 by an accident such as incident] [the required was to do.” kneeling squatting that she he could not tell “which have physician further stated that caused it.” physician occurred on October last visit to Hayes light able to return to at which time he felt

work. error, assignment finding

Cohron’s first which attacks Hayes’ injury out of and in the course of her arose that, while employment, rests on the fact injury resulted from the cumulative court found knees, Hayes’ frequently working on her trauma attendant pled injury specific, occurred as the result of a had incident, single lifting argues of a beam. Cohron finding compensation court’s is outside the issues of the case. Cases exist which have denied a claim for workers’ compensation benefits because of a variance between the pleadings proof. example, Cearley Royal in For Co., (Tex.App. 1982), plaintiff’s Globe Ins. 632 S.W.2d 942 original alleged injury petition that he had suffered an to his system by respiratory exposure gases excess in the work trial, however, specific environment on a date. The plaintiff’s breathing problems developed revealed that had over gradual period repetitive exposure gases due to to the in the work environment. The court held that because the evidence occupational showed a due to an disease rather than injury occurring specific alleged, plaintiff on a date as could However, Cearley jurisdiction inapposite, recover. is for the decided, Nebraska, which was unlike adheres to the one specific incident place” theory “traceable to a definite time and Packaging America, of “accident.” Id. at 946. Sandel v. Co. of makes clear that in “accident,” Nebraska the definition of as used Neb. Rev. Stat. 48-101 (Reissue 1984), injuries includes resulting repeated activities which create a series of ultimately traumas *4 producing disability. See, also, Masters v. Iowa Beef Processors, 835, 220 Neb. 374 N.W.2d 21 (1985); McLaughlin Servs., 260, 361 N.W.2d 585 Self-Insurance Merchandisers, 151, 352 N.W.2d Tranmer v. Mass Stores, (1984); Crosby v. American 207 Neb.

157 challenged compensation

Other cases have claims on the proof process basis that the variance in violated due giving adequate the defendant notice of what it was to defend against. For example, Moore v. Carter Div. ACF Carb. Industries, (Mo. App. 1982), plaintiff 628 S.W.2d 936 filed alleging disability by a claim inhaling gasoline reason of fumes. trial, however, At the medical attributed the gasoline to either the inhalation of fumes dust, emery inhalation workplace, also found at the or to pleading both. That court noted that technical rules of compensation strict rules of evidence were to be avoided in identify cases and ruled that there was sufficient evidence to probable illness sustained and the cause or causes thereof to support the filed. claim as City Bd., Comp. App. In Altoona v. Workmen’s 50 Pa. plaintiff alleged

Commw. 411 A.2d 1322 in his petition job. that he had suffered heart attack on The testified, however, examining physician although plaintiff that creating pains hospitalization, had suffered chest the need for but, rather, he had heart not suffered a attack some other heart Noting compensation pleadings malfunction. were to be construed, liberally plaintiff the court held that had suffered disabling injury some to the heart in the course of injury. thus a compensable suffered (Reissue 1984) provides, among Neb. Rev. 48-168 Stat. § things, shall not be bound other Indeed, procedure. technical or formal rules of even the provide, procedure applicable rules of civil to the district courts 1985), no variance (Reissue in Neb. Rev. Stat. 25-846 allegations pleading proof between the in a shall be party actually deemed unless it misled the adverse material has may prejudice pleading the court order the to his or her Making just. those amended under such terms as observations, Co., Dairy Faulhaber v. Roberts compensation court’s (1946), approved workman’s hearing amendment to the postinitial allowance of a alleged he had hit his thumb petition. injured workman workman hearing, at which the with a hammer. After the initial *5 584 to permitted he was alleged petition, in his had as he

testified caught got molten solder allege that some petition to the amend thumb, previously which had not bandage the end of his in a at testimony at the injury. The workman’s prior from a recovered allegations in the amended with the rehearing conformed then workman, the to the benefits affirming an award of petition. In expanded workman’s court concluded Faulhaber simply had that he by explaining testimony, justified which he testifying the initial when accident thought of the second of law. him as a matter hearing, did not discredit Hayes in her allegation made between the While the variance may on the issue testimony produced bear she petition and her as a as to discredit credibility, the variance is not such of her allegations variance between law. Neither was the matter of deprive to of such a nature as petition proof of the against by failing to advise it of issue process of due Cohron defend, is, injury that whether sustained which it was to of her of and in the course in out employment with Cohron. error, assignment of being merit to Cohron’s first

There no assignment, the claim we direct our attention to its second support the award. the evidence is insufficient question but that a workers’ There is no injury proving of that an resulted plaintiff has the burden arising out of and in the course of an accident N.W.2d 371 Enterprize, Nelson Neb. v. Laffin Moreover, injury that the was the result of (1986). if is claimed exertion, the evidence must show that employment injury in contributed to the cause of the some Stores, Crosby degree. v. American material and substantial 251, 298 Further, presence of a (1980). N.W.2d 157 degree required preexisting proof condition enhances the of in the injury arose out of and course of establish Platte, City employment. Wilson v. North N.W.2d 134 argument physician

The essence of Cohron’s is that the only frequent testified that either the use of her knees or the injury lifting could have caused beam testify with medical resultant and did not reasonable certainty probability that one of those alternative causes did disability. in bring fact about meaning previously, by

As we have noted of words used presents experts problem interpretation medical at times they resolved the sense which were used. IBP, Inc., Snyder 424 (1986). Neb. A physician’s reading fair entire leaves no doubt opinion reasonably but his it was certain from a medical point of preexisting Hayes’ right view that the abnormal tilt of aggravated lifting knee was either the beam or the *6 frequent of her knees point preexisting use to the that the produced disability. condition What he was uncertain of was which of the possible employment two alternative causes was responsible, Since, however, because either of them could be. as our analysis assignment earlier of Cohron’s first of error demonstrates, would, itself, either qualify cause in and of as an of employment, out and in the course of uncertainty is immaterial.

The cases Cohron contrary cites which reach are results State, 195, 352 N.W.2d applicable. Scott v. Neb. (1984), occupational was an disease case in which the medical evidence interpreted was mean employee experienced only that the normal progression preexisting of his condition. In Caradori v. Airlines, Frontier (1983), 329 N.W.2d 865 the only employment evidence was that the accident could have not, disability, caused case, as the present that one of two employment disability. accidents did cause the Eliker v. D. H. Sons, Merritt & does indeed hold injury that the failure to tie and resultant disability specific ato work event fails to establish an accident “ which arose the course” of It must be borne in mind, however, that Eliker was decided before development of the rule that in the injury case of an develops over a time, of the “in the requirement course of” is met showing exertion contributed in some material degree and substantial injury. See, cause the Sandel America, Packaging Co. of Stores, Crosby supra. v. American assignment fails,

The second bringing of error thus us to compensation assignment, which claims third Cohron’s deposition of receiving evidence into erred in Kenney. coworker hour after that about an Kenney testified deposition

In that I-beams, Hayes that she said some had moved he and given any right knee had out. longer, her could not stand appear at Kenney had failed to is that since contention Cohron’s had not been deposition, to take his scheduled times several times, had not been appear of those subpoenaed to rehearing, it was abuse appear at the subpoenaed to and submitted deposition to be taken permit his discretion to testimony had concluded. presentation live been after However, that it was determination court’s Hayes’ injury and which caused repeated use of knees Kenney’s deposition disability renders resultant Thus, this case. disposition to the irrelevant and immaterial not, not, do decide the issue this and therefore we need presents. error assignment of argues assignment of error fourth last

Cohron’s permanent basing Hayes’ partial compensation court erred in upon benefit a 45-hour workweek. part: provides in relevant 48-121(4) Section disability resulting disability, if permanent For wages immediately prior to the accident rate weekly hour,... wages . . . shall taken fixed *7 of a work week of ... a computed upon to be basis hours, forty wages if hour paid of are minimum provides (Reissue 1984) in relevant Neb. Rev. Stat. 48-126 § part: used, wages ... the term is shall be

Wherever at money rate which service construed to mean the hiring of recompensed under the contract rendered is the accident. ... In continuous force at the time of immediately employments, prior if to the accident the rate weekly wages wages the . . hour ... of was fixed . his average weekly income shall be taken be his constituting work, ordinarily his period of time week’s earnings during his using of calculation as as basis

[587] preceding much of six he months as worked employer same .... The shall also be calculation made day average earnings working with reference to the for a ordinary length earnings exclusive of overtime; Provided, if company’s the insurance policy provides of insurance for the collection of a premium overtime, upon based such then such overtime part shall determining become basis compensation benefits. Hayes’ expectation

The evidence contradicts stated that she per would work 45 hours week. It paid establishes that she was $5.25 per hour per day for the first 8 hours of work and one and a half times performed that amount for work after the first 8 per day. hours of work The evidence also establishes that of the Cohron, 7 full weeks only worked for there were 3 weeks during days. which she worked 5 full It is clear that in each of weeks, 3 those she earned somewhat more than she would have by working earned per day, no more than hours but there nois way to determine many from the record how hours she worked any day many one how hours she worked in one of demonstrates, however, those weeks. The record that she did average 45, 40, or for that matter per hours week throughout While the record suggests insured, that Cohron was it does not reflect whether premium insurer collected a Hayes’ based on overtime work. question

There is no wage but that the computed rate is according to the contract of hire in force the time of the Stickelman, accident. Gruber v. 149 Neb.

(1948); Center, Johnsen v. Benson Food N.W.2d 749 controlling 48-126. The inquiry is what Irrespective contract was. stated expectation, the of employment performed contract with a workweek of less than 40 parties hours. The acts of practical their interpretation of a engaged contract while performance in its any controversy before is one of the best indications of their true meaning, intent and and courts ordinarily should enforce such Skinner, DeFilipps construction. See, also,

N.W.2d Daub, 698, 365 Smith v. *8 Davis, v. N.W.2d Lauritzen why explain If exist facts which N.W.2d 520 there actually longer than the hours for a workweek contract was worked, Hayes, upon party with the it was incumbent as proof, Enterprize, v. Nelson burden of Laffin upon explanation, to offer that why appears support which to its to show evidence Cohron circumstances, not do so. Under position fact does Hayes’ permanent partial 48-121(4) requires that week. computed be on the basis of a 40-hour benefit the record does not establish that overtime is Since considered, hourly $5.25 the rate to be used for appropriate is each of the 40 hours. modify

We therefore affirm but the award of compensation court and remand the cause to that court with the it enter an consistent with this direction that award is opinion. modified,

Affirmed as and cause REMANDED WITH DIRECTION. J., part. dissenting in Caporale, analysis and resolution of majority’s agree I with While issue, dissent. I must nonetheless wage my in Sandel expressed in dissent me the fear It seems America, Packaging Co. majority’s by the resolution of this pass (1982), has come to . . out has an “accident. hard work become case. Mere meaning of employment” within the course of... of and in the According to the 1984). (Reissue 48-101 Neb. Rev. Stat. § plaintiff used her knees accident because majority, was an there work, arose out of the doing and the accident her was work. Such a pain while she she felt because meaning “accident” the word process fleeces of thought “arising out of.” phrase Packaging Co. expressed in Sandel v. the reasons For America, plaintiff failed to sustain the I would find supra, injury resulting suffered an proving she burden I in the course of arising out of and compensation judgment reverse the thus would *9 action. direct dismissal

Boslaugh JJ., this dissent. join in Hastings, Wilson, appellee, Wilson, Alan v.Richard Jean Sandra appellant. 23, 1987. January 86-251. No. Filed Johnston, Knight, for Jr., Wherry & Johnston, W. Miles appellant. Office, P.C., appellee. The Law Reisdorff of

Steven J. Hastings, Caporale, White, Krivosha, C.J., Boslaugh, Grant, Shanahan, JJ.

White, J. County. for Saline

This appeal from the district is an Alan Richard case, Wilson and Jean parties to this Sandra The part of the As Wilson, 1982. divorced on October were agreement. settlement approved property decree the court joint agreement provided property settlement Sandra appellee, Specifically, custody children. of their four during the school custody the children Wilson, was awarded every during visitation rights of year, appellant had custody and visitation holiday. The other weekend months. summer during the reversed arrangements were per child $50 month per pay also ordered Richard Wilson was