*1 penalty also set out ordinance. city was of Omaha. under a appeals a a conviction sentence When defendant ordinance, insufficient claiming the evidence is municipal excessive, appellate a an and that sentence conviction requires assignments of error an the court’s consideration State v. specific involved. See of the ordinance examination (1991). The record Neb. 464 N.W.2d Topping, 237 King under which us not include the ordinance before does which he under was sentenced. convicted the ordinance charging properly an offense is not made When an ordinance record, appellate presumes court the existence part of the an creating charged, the offense an a valid ordinance judicial will not otherwise take notice the appellate court Topping, supra. the absence ordinance. See State ordinance, appellate applicable municipal record of the findings of presumes that the evidence sustains the court court that a sentence is within limits set out trial Cottingham, See applicable ordinance. State v. N.W.2d municipal no ordinance in the record in
Because there is court, affirming King’s appeal, the order of the district county court, judgment of the is affirmed.
Affirmed. Dorothy Schlup, appellee, Inc., Needleworks, v. Auburn appellant.
Jill Gradwohl &Witt, appellant. for Fitzgerald, Carpenter, Rowen & Fitzgerald, of Michael
J. P.C., appellee. C.J., Shanahan, Grant, White, Caporale,
Hastings, JJ. Fahrnbruch, J.
Fahrnbruch, Needleworks, Inc., appeals a Nebraska Auburn *3 Dorothy finding appellee, that the Compensation Court disabled as a totally permanently and Schlup, was rendered of her arising and in the course accident out of result of an factory. appellant’s employment at the three-judge panel of the Workers’ the decision of a Weaffirm Court. Compensation claims that the Workers’ summary, Auburn Needleworks
In finding Schlup (1) was erred in Compensation Court in the course of her arising out of and involved in an accident Needleworks; “right and left (2) had employment with Auburn accident; (3) was as a result of the problems” wrist [sic] entitled to workers’ totally disabled and permanently and accident; (4) and of her benefits as a result provided for the loss of in excess of those entitled to benefits entitled to workers’ body, if in fact she is members of her two being totally permanently and compensation benefits disabled. the Workers’ Needleworks has claimed
Auburn awarding Schlup medical and Court erred Compensation hospital expenses, argue assignment has of but failed to assignments error. This court will not consider of error which are proponent’s Spiegel, not discussed in the brief. See State p. 233, 474 N.W.2d (1991). ante
STANDARD OF REVIEW Findings by fact the Workers’ Nebraska rehearing the Court after have same force and effect set jury as a verdict in a civil case and will not be on appeal clearly wrong. testing aside unless ... the sufficiency findings support the evidence to of fact made the Nebraska Court rehearing, after the evidence must be considered in the light Every most party. favorable to the . . . successful controverted fact must be resolved in favor of the party, successful will party the successful have the benefit every reasonably inference that is deducible from the evidence. County 42, 48,
Cline v. Lounge, p. Seat 473 N.W.2d ante 408(1991).
FACTS Schlup, old, who at the time of trial was 54 had been employed by Auburn years, as a for 34 Needleworks seamstress but left that company’s factory intermittently work force perform other menial labor. Her final at the appellant’s factory just prior 1982 until she left surgery wrist During year June 1987. last Auburn Needleworks, Schlup performed sewing on a different task assembly line previously. than she had done This new task required collars, cuffs, her to attach pockets, zippers to jackets denim jeans. pull, tug, push had to through sewing denim she machine used. She also had to lift carry sewed, she bundles material which bundles weighed sometimes toup pounds. 20 or 30 here, As relevant appellee’s physical began complaints *4 April fingers March or Schlup’s began 1987. It was then that to hurt, tingle, get up numb. Pain shot both arms above her elbows, compelling stop her times to work and run warm water her over hands so she could her resume work. 1987, 8, May when she on sought medical attention as Schlup’s ailment diagnosed He Dana Farris. Dr.
visited pain, which causes syndrome, bilateral Subsequently, the hands. numbness, function and decreased appellee’swrists. each of the on surgery performed was Dr. Brent surgeons, her surgeries, one of Following the two ability to limited in Schlup was Stromberg, opined that was carpal tunnel He testified work. heavy hand by repetitive by or worsened caused either He do in her required to that she was motions condition, Schlup suffered a of her that as a result testified hand, a related to which of each 40-percent impairment Dr. upper extremities. both impairment of 15-percent 19, November release on Stromberg gave Schlup a medical able to appellee The 1987, do at work. see how she would began pain day, hands to swell only 1 when her work for 1988, 11, February ability to function. On again restricted her Stromberg suffering from diagnosed Dr. Schlup was hands, condition physical in her a sympathetic dystrophy reflex initial even after the discomfort continue pain in which pain for the is resolved. reason surgeries, Dr. nearly year after her
On June specific with Schlup for work Stromberg again released anything in lifting excess that restricted her from limitations required the Stromberg’s Dr. restrictions pounds. 10 to These restrictions repetitive hand activities. appellee to avoid returning employment at the Auburn Schlup from precluded factory. Schlup to suffer from bilateral continued Needleworks according Stromberg. pain, to Dr. nerve infirmities and median problems picking up and that she had Schlup testified cup coffee objects, pick up not grasping that she could hands, daily tasks using and that most household without both pain. caused her occupational and rehabilitation appellee underwent between counselor Jack Greene
therapy with rehabilitation May aptitude Greene administered 1990. September 1988 extremely ability which disclosed that has tests placed Wide-range achievement tests job-market limited skills. reading grade and at a third grade level in skills her at a fifth *5 spelling skills, level in skills. In Schlup placed those in the percent bottom 1 population. testing of the The disclosed that skills, in appellee level, math the performed grade at a seventh percent or in the bottom 10 population. Schlup’s general of the aptitude test average general reflects scores well below for learning ability and verbal and aptitudes. numerical appellee high left school in in grade 1953 the middle of the 10th “just it,” because she get hang yet couldn’t and has complete her Schlup additionally GED. suffered from severe degenerative disk disease for which surgery she underwent in 1969. problems, Because of her back she is unable long to sit for periods of time lifting and has limitations. petition filed a with the Workers’ 20,1989,
Court September on alleging that she sustained in 8,1987, an accident May on or about while engaging in constant repetitive use of her sewing hands in at the This, Auburn alleged, Needleworks. she rendered her permanently totally disabled. Auburn Needleworks denied allegations any disability claimed that suffered Schlup resulted from an inherent condition not related to the course of her Stromberg Dr. testified that as 3, 1988, August Schlup had reached maximum medical recovery. three-judge
A panel of the Court found: plaintiff employ was in the of the
[T]he defendant sewing factory as a worker and [Auburn Needleworks] employed while so and on said date engaged and while the duties of injuries she suffered to both arms as a result of arising an accident out of and in the employment by when, course of her the defendant while plaintiff using sewing heavy material, her hands in she developed tingling, pain numbness and in both arms to areas above the elbows. As a result of said accident and plaintiff incurred medical and hospital expense and, case, with accordance the facts of this has been totally permanently rendered disabled. “[mjeasured by
The court further found that the test of employability impairment earning power earning .recently Heiliger approved . . . Walters
capacity [&] Heiliger Electric, Inc., [461] N.W.2d [565] (1990) difficulty concluding plaintiff that the ... we have little totally permanently and disabled.” disability temporary total benefits from The court awarded 8, 1987, July 23, 1990; hearing on May to the date of disability hearing total benefits from the date of permanent disabled; totally long permanently and so remains hospital expenses indemnification of medical and injury. rulings her work-related It is these that Auburn appealed. Needleworks has
ACCIDENT Auburn Needleworks first contends that did not provisions accident. Under the of suffer a work-related the Act, Workers’ is allowed when injury employee is caused to an an accident or personal disease, arising out of in occupational and the course of his or willfully employment, employee negligent if the was not injury. receiving time of such Neb. Rev. the Stat. 48-101 § Co., (Reissue 1988). In Maxson v. Michael Todd & 238 Neb. 212, 209, N.W.2d 542, 544 (1991), recognized: 469 we quite resulting While it is ... clear that a condition from repeated the cumulative effects of work-related trauma injury an has some characteristics of both accidental and occupational compensability disease . . . the an of ... a [resulting condition from the cumulative effects of repeated work-related be tested under the trauma] statutory definition of accident. 48-151(2) (Reissue 1988),
Under Neb. Rev. Stat. an § unexpected is defined as “an or accident unforeseen suddenly violently, and happening with or without human fault, producing objective symptoms at the time of an America, 149, injury.” Packaging SeeSandel v. 211 Co. Neb. of (1982). 317N.W.2d 910 “unexpected requirement or 48-151(2) The unforeseen” of § is satisfied if either the cause was of an accidental character or unexpected the effect was or unforeseen. McLaughlin See v. Servs., 260, 219 Neb. 361 N.W.2d 585 Self-Insurance Schlup’s There is no indication in the record that was condition expected either complained foreseeable. While she had of pain and in weakness her hands for a time in and a sprained complaints wrist had no about her upper suffering sprained extremities for 6 after wrist. evidence, From the could Court properly Schlup’s conclude bilateral diagnosed expected which was in 1987 was not foreseen. It properly could also conclude that diagnosis causally not complaints connected with her 1981. specification
The
48-151(2)
second
requires that an
§
employee’s injury
“suddenly
violently”
must occur
to be
compensable.
“suddenly
This court has held that
violently”
“instantaneously
not
does
mean
and with force.”
specification
“suddenly
violently”
if
is satisfied
time,
point
requiring
occurs at
identifiable
employee
to discontinue
and seek medical
Sandel,
Hayes
Cohron, Inc.,
treatment.
supra. In
v.
A.M.
Neb.
disapproved
Unlike the situation in Vencilv. Valmont ante (1991), symptoms N.W.2d 409 wherein the claimant’s developed period years over a of less than 7 required not and no employment until almost discontinuance his
interruption itself
here,
manifested
Schlup’s condition
elapsed,
had
months,
which time she had to
during
less than 3
within
over her hands
her
and run warm water
stop
work
periodically
8; 1987,
May
On
pain
upper
in her
extremities.
relieve the
to
enough
stop
to
work and seek
require
was severe
to
pain
evidence for the
Clearly, there was sufficient
attention.
medical
May 8,
conclude that
Compensation Court to
Schlup’s injuries
point
time
in
was the identifiable
surrounding Schlup’s injuries satisfied the second
the facts
compensation court’s decision
48-151(2). The
requirement of §
Erving
v.
with the decision
Schlup’s case is
accord
Industries,
(1982).
The third
objective symptoms,
symptoms
is satisfied if the
produce
according to the natural course of such
manifest themselves
intervening
any
cause. See
things
independent
without
Sandel
America,
149, Packaging Co.
N.W.2d 910
“
expression has
opinion
‘We
of the
that the
a wider
are
anguish,
meaning,
symptoms
pain,
and that
such
faintness,
sickness,
weakness,
nausea,
pallor,
as
pain clearly involuntary,
any
expressions of
other
bodily
symptoms indicating
change
in the
deleterious
may
objective symptoms
required
condition
constitute
”
by the statute.’
Sandel,
at 157,
WORK-RELATED Auburn Needleworks’ second issue is whether the by To Schlup suffered was caused work-related activities. benefits, injured compensation required worker is recover testimony prove by competent medical a causal connection injury, disability. alleged employment, between the and the Hollinger Freight, v. Consolidated Motor 223 Neb. See show, injured by (1986). N.W.2d 518 worker must evidence, preponderance
proximately disability caused an which resulted in Heiliger compensable under the Workers’ Act. Electric, Inc., Heiliger v. Walters & 461 N.W.2d certainty, upon degree Based a reasonable of medical Dr. syndrome Schlup’s carpal Miller testified that bilateral tunnel by was caused her work at Auburn Needleworks. Dr. degree Stromberg gave opinion, upon based a reasonable his certainty, syndrome Schlup’s carpal tunnel medical by heavy repetitive were or worsened problems caused that she had to do in her From this hand motions compensation properly evidence the court could find that bilateral was related to her Auburn Needleworks. work at
EXTENT OF DISABILITY totally Needleworks next contends that is not Auburn that, therefore, she is not permanently disabled and disability permanent total temporary entitled to either total or benefits. in a long plaintiff that whether a
This court has
held
totally
Nebraska workers’
case is
permanently
question
disabled is a
of fact. Paris v. J. A.
*9
Co.,
151,
Mfg.
Baldwin
(1984).
Under this Court did looking not err in at injury, work-related as well as her existing back limitations shortcomings, and academic finally determining totally that she is permanently disabled. assessing disablement, extent of Schlup’s upon court relied Heiliger v. Walters & Heiliger Electric, Inc., 470-71, supra 574, 461 N.W.2d at where we stated: disability may be found in the
“[T]otal case of workers who, while altogether not incapacitated work, are so handicapped they will employed not be regularly in any well-known branch of the labor market. The essence of the probable test is the dependability with which claimant can sell his services in competitive labor market, by undistorted such factors booms, as business sympathy particular of a employer friends, temporary luck, good superhuman or the efforts of the claimant to rise crippling handicaps.” above his Although Schlup might physically be perform able to some of the requirements jobs Greene, listed compensation court could properly find that her lack of mental abilities, coupled physical limitations, with her did render her unemployable.
Professor Larson has written that
the odd-lot
“[u]nder
doctrine,
accepted
virtually every
which is
jurisdiction, total
disability may
who,
be found in the case of workers
while not
altogether
work,
incapacitated for
are so handicapped
they
will not
employed regularly
any
be
well-known branch of the
Larson,
labor market.” 2 A.
The Law of Workmen’s
57.51(a)
See,
at 10-164.68 (1989).
e.g.,
Odom
Dept. Labor,
Const. Co. v. U. S.
F.2d 110(5th Cir.
1980),
cert. denied 450 U.S.
101 S. Ct.
A considerable number of the odd-lot cases involve adaptability claimants whose to the new situation created by physical their by was constricted lack of mental capacity or result, education. This is a sensible since it is a matter of common observation that a man whose sole stock in capacity trade has been the perform physical to movements, ability and whose to make those movements impaired by injury, has been is under a severe disadvantage acquiring dependable a new means of by say, ... comparison, livelihood with a book salesman who can continue to make having commissions after injury. sustained serious brain Larson,
2 A. supra, 57.51(d) 10-164.84(24), (37), Schlup easily by could have been considered the Workers’ Compensation Court be to an odd-lot case. She had few and could not
appreciable academic or vocational skills sit for time, long periods at a and the evidence is substantial that after suffering syndrome, the bilateral she could no longer living earn a with her hands. Because her hands are her totally only earning living, a means of she was rendered injured. permanently disabled when her hands and arms were Schlup totally Appellant’s contention that is not disabled is apparently upon Stromberg based evidence that Dr. continues encourage Schlup engage activity to to in much as she can Greene, counselor, that rehabilitation determined that qualified perform variety light-duty was she a of cashier, occupations. being This work included cardiac technician, clerk, clerk, telephone operator, monitor sales hotel worker, and fast-food restaurant hostess. experts,
Two other rehabilitation David Hauswald and Marchisio, Alfred testified that because lack of limitations, appreciable physical skills and her and academic they Schlup gainful doubted a candidate for was job telemarketer, attempted She as an insurance but found only that period not was she unable to sit for an extended time, tonguetied but she became and was unable to talk to the public. jobs Evidence showed that for by most listed Greene, physical regarding limitations use of her hands and her lack of social and keep academic skills would her from being employed.
The Workers’ panel Court found as a fact totally that injuries was disabled to her arms. We say finding clearly wrong. cannot affirming Since we are Court’s finding totally permanently was rendered in a work-related disabled accident in the course of her Needleworks, at Auburn there is need no appellant’s error, assignment consider fourth regarding *11 compensation pursuant 48-121(3)(Reissue 1988). §
Pursuant to Neb. Rev. (Reissue Stat. 48-125 1988), § appellee $750 attorney is awarded Appellee fees this court. is also entitled provided to interest as in 48-125(2). Affirmed. J., participating on briefs.
Boslaugh,
[867] Shanahan, J., concurring. under the compensable
Certainly, Dorothy Schlup’s claim is
Act,
majority’s view
but the
Nebraska Workers’
view of
especially in
explanation,
an
compensability calls for
Indus.,
(1991),
p.
DOROTHYSCHLUP Age injury: years [30] years Began employment:
Duration of employment: years of work Type Twisting sewing Twisting body back, wrists collars activity: lifting jackets; pulling bending, stooping, and to coat pushing objects weighing pushing bundles of denim weighing20to301bs. upto2001bs.
DOROTHY SCHLUP DANIEL VENCIL First observation of
any physical
problem: 1986' Diagnosis of condition:
physical tunnel Carpal syndrome Lumbar disk disease injury: Nature of or Tissue structures in carpal disk, Deterioration of lumbar (canal tunnel from hand i'.e., deterioration of fibers through arm) enlarge allowing wrist to disk, around disk to swelling “bulge trauma, due to out”; results in pressure along irritation, or infection; median on nerves the spinal nerve, which runs from the column and palm pain; medically through analogous of the hand to carpal tunnel carpal or wrist tunnel the arm, into is “pinched” compressed by enlarged other tissue in the tunnel; results in pain, digits, numbness in and arm pain affecting affecting Medical history: No condition prior the No prior condition which is the basis which is the basis for claim compensation claim Medical causation: motion; Repetitive heavy hand Repetitive motion; heavy (palm lifting, twisting, bending movement: pronation down) (palm up) and supination work-related activities in work-related activities injury: Effects of Weakness in wrist; to inability back; Weakness inability to grasp objects objects lift employment in employment Surgery Surgery Medical treatment: to alleviate condition to alleviate condition Disability: Inability perform Inability perform employment duties; employment duties; discontinuance of discontinuance of employment “Identifiable moment” injury, i.e., a specific traumatic incident: None None Compensability: Yes No
Thus, Dorothy Schlup experienced carpal syndrome, complex “a symptoms resulting from compression of the tunnel, median nerve in the pain with burning tingling paresthesias fingers hand, in the sometimes extending to the elbow.” The Sloane-Dorland Annotated Medical-Legal Dictionary 1988) states: 48-151(3) (Reissue Rev. Stat.
Neb. only mean a disease occupational The term disease shall which are which due to causes and conditions is trade, particular peculiar to a characteristic exclude all employment and shall occupation, process, or general public ordinary of life to which diseases exposed. Co., Michael Todd & Maxson v. *13 542, following (1991), recognized this court
N.W.2d
544
“
impairment of the normal
definition for “disease”:
‘[A]n
body
any
components
living animal.
..
or of
of its
state of the
the vital
interrupts
performance
or modifies the
that
functions, being response
to environmental factors [such as]
”
definition
preceding
industrial hazards
.
.
.
.’
substantially
definition of
coincides with the standard medical
“disease,” namely: “[A]ny
interruption
from or
deviation
any
organ,
system
part,
or function of
or
the normal structure
body
by a
(or
thereof) of the
that is manifested
combination
signs
etiology,
and whose
symptoms
characteristic set of
may be known or unknown.”
pathology,
prognosis
Dictionary
(26th
1981).
385
ed.
Dorland’s Illustrated Medical
Also,
standpoint,
“occupational
an
disease”
from a medical
employment, e.g., various
“due to factors involved in one’s
Thus,
dermatitis.” Id. at 392.
pneumoconiosis
forms of
or
occupational
impairment,
which causes
disease is a condition
deviation,
function
interruption
or
of the normal structure or
or
body and which results from hazards
of a worker’s
peculiar
particular occupation
to a
conditions
p. 31,
Referring comparison injuries to the between the Dorothy Vencil, disabilities of Schlup and Daniel one immediately Dorothy sees that injury work-related pressure consisted of on the median nerve in her disability, resulted while Daniel Vencil’swork-related injury pressure vertebral, consisted of along on the nerves his spinal, column disability. situations, and resulted in his both disability and ultimate repetitive were attributable to during employee’s trauma sustained work-related activities. legal What is the medical and distinction between the injuries Dorothy work-related and Daniel Vencil? Is Dorothy distinction based on the fact employed years disability, for 5 before her whereas Daniel so, employed disability? Vencilwas before his If *14 repetitive from during employment trauma years less than 5 is compensable, injury repetitive while from during trauma employment lasting more than 5 noncompensable. That infirm might distinction be best characterized as a case of acute compensability arbitrariness. Or does lie in the fact that Dorothy Schlup’s injury arms, was to her wrists and whereas injury Daniel repetitive Vencil’s was to his low back? If the wrist, employee’s compensable, is to an the claim is but if repetitive injury back, employee’s is to the low the claim is Well, it; noncompensable. you nobody quite there have has explained way it that before.
Since this court continues to lie in its Procrustean bed made “repetitive of trauma” decisions based on a distorted definition Act, Compensation of “accident” in the Nebraska Workers’ hoped Dorothy one case would have afforded application this court an “identifiable moment” disease,” “occupational expressed the Workers’ Act, injuries disability Compensation repetitive cumulative effect work-related trauma. Nonetheless, hope. Although “[h]ope springs one can still eternal,” employees injured by repetitive work-related trauma remedy are a little more mortal and need a under the Nebraska Workers’ Act.
Nevertheless, Dorothy Schlup clearly because established disability that her were attributable to disease, occupational judgment as an of the and, Court is otherwise correct therefore, must be affirmed. Grant, JJ., join this concurrence.
White S.R., ., R., In re Interest .R and B. children under 18 D years of age. appellant. J.R., Nebraska, appellee, State 479 N.W.2d126 24, 1992. January Filed No. 91-136.