*1 The costs made. fees there attorney’s the allowance the plaintiff. are taxed this appeal directions. remanded Reversed briefs. J.,C. participating Simmons, City Lexington, appellee, Knaggs, James appellant. municipal corporation, Nebraska, 2d 727 105 N. W. No. 34859. Filed 1960. November *2 appellant. Stewart & for Stewart, appellee. Smith Brothers, for Heard before Carter, Messmore, Yeager, Chappell, JJ. Wenke, Boslaugh,

Wenke, J. appeal

This is an from the district court for Dawson County. arising It involves a claim under the Nebraska ' Compensation Act originally Workmen’s which was by Knaggs filed James in the Nebraska Workmen’s Com- pensation appeal Court. by The district court, on City Lexington, Knaggs, found that James claimant, totally permanently by disabled reason of a heart arising attack caused an accident out of and employment City course of his with the of Lex- ington and, city pay because thereof, ordered the per claimant the sum of week for 300 weeks and $33.84 per thereafter the sum of for pay week the remainder $22.84 city his life. It also ordered the certain medi- hospital, drug, nursing cal, together bills, expenses other had claimant in connection with his following condition the accident, all of which amounted to the sum of $1,967.02. City Lexington

The filed a motion for new trial. This except motion the trial court overruled hospital expenses. items of granted and medical As to these it purpose trial redetermining new for the city amount thereof. From this order the took an *3 appeal appeal to this court. On to this court in a work- compensation men’s case the cause is considered de novo upon the record Cowger, before us. Anderson v. 158 Gotfrey Neb. 772, 51; 65 N. W. 2d v. Sakurada, 169 *“* * 879, Neb. evidence is 101 N. 2dW. 470. However, where the conflicting and cannot be reconciled, court will consider the fact that the district court that tried the cause de novo and observed the demeanor gave testimony of witnesses credence to the of some contradictory testimony rather than to the of others.” Dietz State, 324, v. 157 Neb. 59 N. W. 2d 587.

Appellant question appeal states the involved in this injury person “Did suffer an as: to his proximate result which was accident an within meaning Compensation of the Nebraska Workmen’s respect appellee proof. In this has the Act?” burden of Cowger, supra; Cudahy Anderson v. Chiles See, ing v. Pack- 713, 459; 64 N. W. 2d Co., 158 Neb. Jones v. Yankee Co., 404, Brick Manuf. 161 Neb. Hill 73 N. W. 2d 394. “* * * prove, in recover, order to He must that an acci- 138 arising of em- and in the course out of

dent occurred produced injury ployment that resulted which accident Cowger, supra. disability Anderson v. or death.” supra; Co., Brick Manuf. also, v. Yankee Hill See, Jones supra. Gotfrey And, often said as we have Sakurada, v. compensation respect, cannot be based in this award Grainger probabilities. possibilities See, Pixa v. or Cudahy v. 74; 2d Chiles Co., 922, N. W. Bros. Packing 143 Neb. Gotfrey Cowger, supra; supra; Anderson v. Co., supra. Sakurada, v. an connection between must be a causal acci-

There the claimant and cause suffered dent Grainger Cowger, supra; disability. Pixa v. Anderson v. supra; McCauley Harris, 216, Neb. Co., Bros. County Farmers v. Cedar 2d In N. W. Telephone 30. Schirmer dis- 296 N. we 139 Neb. W. pre- here it to the situation latter, as relates cussed the “ language: following ‘In the determina- sented, disability question causation, the or death tion of the just legiti- compensation may as is claimed for which mately injury un- to the accidental where be attributed developed physical conditions are set and latent produce so as such final accelerated motion and result directly result from the same follows where physical to the structure of the done violence visible aggravation, body.’ acceleration, ‘The or J. 605. C. injury may preexisting lighting up disease an disability of a character such as to come constitute compensation meaning of workmen’s acts.’ within employee, engaged while J. ‘Where 71 C. 608. aggravates employment, accelerates the work the condition thereby causing blood vessels, of diseased disability, may injury constitute an of a char- death *4 meaning to come within of workmen’s as such acter compensation J. ‘The C. 610. acceleration or acts.’ 71 employee’s thereby aggravation heart condition of an disability may physi- causing constitute or other death as to come character within the such a mean- harm of cal

139 ing compensation of workmen’s acts.’ J. 71 C. 611.” meaning

“An within the accident, of the shall statute, unexpected be construed to mean an or unforeseen event happening suddenly violently with or without producing objective symp- human fault and at the time injury. § toms of 48-151, R. v. 1943; R. Ruderman S. supra (157 658); Foreman Bros., 605, 2d Neb. 60 N. W. Symp- v. Brainard, 650, Muff 150 Neb. N. 2d 597. 35 W. pain anguish, pallor, toms of such as weakness, expressions pain clearly sickness, nausea, involun- tary, any symptoms indicating other a deleterious change bodily may objective condition constitute symptoms required by as our statute. Beam v. Good- year supra (152 Tire & Co., Rubber 663, Neb. 42 W.N. 293); Manning 2d v. Pomerene, 127, 101 Neb. 162 N. W. Cowger, supra. Pittenger 492.” Anderson v. See, also, Safeway Stores, v. Inc., 858, 166 31; Neb. 91 N. W. 2d supra; v. Hill Jones Yankee Brick Manuf. Co., Tucker Gallagher Co., v. Paxton & 1, 153 Neb. N. 43 W. 2d 522. produce

“Mere exertion that itself would com- pensable disability, greater which is not in extent ordinarily employment, than that incident preexisting produce which combines with a disease to disability, injury is not an caused accident be- part proximate such comes cause of such disabil- compensable ity provisions to be under the compensation act.” Gilkeson workmen’s v. Northern Gas Engineering 124, 127 Neb. 254 N. W. 714. See, also, City Fairmont, v. 140 Neb. 550, 574; Rose N. 300 W. City Omaha, Neb. 564; Brown N. W. 2d Cowger, supra; Anderson v. Jones v. Yankee Hill Brick Feagins supra; v. Carver, Manuf. Co. Neb. Employers 379; 2d Eschenbrenner v. N. ualty Mutual W. Cas- N. 32, 84 2d Co., 165 Neb. W. 169. considering sufficiency proof it

“In should of liberal the rule construction, as be remembered compensation applies law, to the workmen’s relates support to the evidence offered to and not claim law *5 dispense the virtue of law. The rule does right compen prove necessity to that claimant the permit com a award it does not court to sation; is, lacking.” proof pensation required An the when Cowger, supra. Gotfrey Sakurada, also, v. See, derson v. Packing supra; Cudahy supra; Hamilton Chiles v. A. R. 2d L. 1. 19 N. Heubner, 146 Neb. W. purposes compensation ‘total disabil- workmen’s “For helplessness, ity’ of a state absolute does not mean wages employee in to earn of an means disablement nature, a of of a similar work, the kind work same perform, or or accustomed to for, trained that he was person mentality any of his of a other kind work which Cowger, supra. do.” Anderson v. and attainments could principles light facts of these we set forth In the dispute ex- evidence There is little adduced. testimony cept to the as their relates that of the doctors appellee’s con- occlusion, which acute cause of totally permanently dis- and in his dition resulted perform ability hard manual as his insofar abled concerned. labor is by appellant employed

Appellee in 1951 to work was Lexington hospital, community Com- known as in its general utility Hospital, munity em- custodial and maintaining ployee. duties consisted of the entire His hospital property, inside outside. His work both oxygen equipment the hos- the care included weigh- required oxygen pital, to move him tanks which lifting pounds; patients ing of in and to 400 from 300 taking supplies every floor of the bed; of of out painting hospital; room; the boiler care of scooping mowing carpenter snow; work; trimming doing every- trees; lawn; up hospital involving thing in the come hard that would job days heavy He at labor. worked manual Sundays, occasionally night. at sometimes week, February Saturday, 1, 1958, went years On then about was to 50 8 a.m. He at work 49% age, height, weighed 5 feet 8 inches in about 170 pounds apparent good and in health. testified he He feeling good per- real when went to He work. job formed the usual routine duties of his morn- ing dining when, about 10:30 while was room a coffee break, he was called Mrs. Olmsted, cook hospital, clogged disposal Fixing to fix a unit. *6 clogged disposal job a unit was one of the duties of his apparently quite frequently. as this condition occurred Appellee got large plunger purpose fixing a for the of clogged disposal stepped the unit. He then on a chair up apron disposal and onto sink the the in which the Appellee placed unit was located. his feet the metal edge began using plunger of the sink and the while employee sought hospital another of the to flush it with by plunging water means of an automatic flusher. After appellee’s slipped it a few times feet out from under pushed plunger when, him as he the down, it threw him and he fell backwards. When he fell the either part lower portion of his back or his buttocks hit the metal edge very falling of the sink hard. After appellee edge putting sat on the of the sink a short time, get up his feet on the chair which he had used to having the onto sink. He testified the resulted peculiar, shook-up, trembling feeling; a and that he right. sitting didn’t feel After for a short time got up job, advising back on the sink and finished the Mrs. Olmsted of that fact after he had done so. The job fixing clogged disposal the unit took some 5 or 6 minutes.

Appellee laundry then went into the room, which disposal to the room in next which the unit was located, paint strip along to floor some 4 feet wide the east against area, side thereof. Located in this the east refrigerator units, two electrical wall were one a Appellee deep previously other freeze. had moved weighed refrigerator, pounds, which some 500 deep had occasion to move had never freeze which laundry 2 or 3 room some had been installed deep about The freeze was months the accident. before deep, long, to 4 feet 4 feet feet 3 to 3% placed weighed pounds high. and, when 1,500 about It placed by laundry men who there room, it was moving purpose into the it used rollers for brought laundry hospital from a truck that room of hospital. Appellee to move these two had it to the laundry pieces some room from the east wall of out along paint the east wall the floor 4 feet in order deep day freeze before, moved He had, thereof. enough he so bar far from the claw out wall get could behind it. laundry away plunger, appellee put

After workshop, proceeded he him as his room used groceries. deep freeze, which was full to move pushing getting it behind feet, did it with He with his back to so by pushing pushed it it out

the wall. He got finally at end then the other until first at one distance of about 4 feet. from the the desired it out wall every Appellee bit of effort he could testified took deep pushed it give freeze and that move the *7 refrigerator, Appellee the as then moved hard he could. enough paint groceries, far to full of out which was strip. by pushing pulling and it. He did so a 4-foot refrigerator Moving deep took about 20 the freeze and During appellee all of time was to 25 minutes. peculiar, doing shook-up, he continued to have this this work feeling trembling over him after came clogged disposal fixing he had taken while unit. pieces equipment two

After he moved out got pan paint appellee and a roller started to strip along laundry paint side of the east 4-foot using purpose roller for he started room. As painting got pain He hurried had he worse. increasing. pain kept through Finally, get but to painting job he finished the but minutes, to 25 after 20 put away using. he was able the tools he was just put He them to one he finished the side. When painting, pain body was all over his and he had a trem- bling feeling. laboratory He walked down to the hospital, on the but which was same floor some 200 laundry pain kept getting feet from the room. The worse and he couldn’t sit A down. doctor was called. put The doctor him in a him wheel and took to a chair given room where he was a shot.

Appellee given described his condition, before he was though going pieces pain shot, as he from was body. which was all over his him Witnesses, who saw appellee pale in the chair, wheel testified looked appeared pain; in extreme and acute and that he had moaning groaning. his hands clenched and was Appellee kept hospital was in the because of this con- question dition until March 30, 1958, and there is no holding that, view of our as hereinbefore set totally permanently he is forth, now disabled be- Appellee only cause thereof. trained for and had always engaged performance heavy in the of hard and earning manual labor as a means of a livelihood. The present physi- evidence adduced shows, because of his coronary cal condition due to the occlusion suffered, longer engage performance can that he no thereof. Appellee knowledge testified he had no of ever hav- ing experienced prior February a heart attack any pains. 1958, nor he ever suffered arm had or chest Lexington, appellee Dr. E. A. Watson of who testified patient his, was a he never said observed having any symptoms heart disease nor had ever any complaints made to him which could relate there- pain to, such in the arms, shoulders, chest, short of breath. appellee during E. A.

Dr. Watson attended the course resulting of his from the illness acute infarct February 1, or occlusion he suffered on 1958. He testi- *8 fied on direct examination that: “I think that temporary shock

trauma associated the fall, pattern developed following fall, the extreme which moving heavy shortly equipment there- exertion or pic- hospital, played very prominent a after at the all causing coronary picture or in ture thrombosis coronary develop infarct at time.” then that He was your I Doctor, think asked on cross-examination: “Now you testimony his heart attack been that believe has trauma the combination of this came on as result of moving to his exertion on extreme buttocks and - - your equipment this that conclusion?” To is question responded: asked “It is.” He was further you say on cross-examination: “And so when falling your opinion, the combination of the your opin- that’s and the extreme exertion, buttocks guess your You it, at Doctor? ion, it, that’s isn’t definitely, operation say an can’t unless there was organs?” you this he could examine To unless responded: you combination, as have described “If the Knaggs happened, it, hadn’t Mr. wouldn’t have had February, He on the 1st of 1958.” then was your I testi- asked understand redirect: “And mony, why, you opinion that this man’s are of physical heart from a combination of the arose attack heavy exer- shock the fall and and emotional responded: “That’s tion, that correct?” To correct.” specializes M. who Omaha,

Dr. Arthur Greene of appellee at his medicine, office examined internal history complete August 1959. He took Omaha on physical time, made a examina- at that X-rays, electrocardiogram chest tion, took laboratory laboratory con- work certain work. The did determining infarc- the sedimentation rate, sisted of hemoglobin, count, white differen- blood volume, tion urinalysis. From these he found count, tial blood no evidence of infections heart disease but evidence of leading disease, is, heart other diseases *9 antero-septal an examination acute, severe revealed myocardial Dr. stated: “The cause infarction. Greene hardening arteriosclerosis; of the arteries is suddenly heart blocked, attack occurs is when vessel by hemorrhage plaque either by into an arteriosclerotic artery by rupture (an) in sudden blood clot into coronary artery system of an in heart.” Dr. leading appellee’s up Greene causes discussed the “My condition opinion thereafter went on to state that: although gentleman, previously that hav- this is ing heart at- sclerosis, suffered acute had strain of the tack of unusual stress and morn- because ing’s cross-examination he was asked: activities.” On you unusual and strain stress “Doctor, talked about morning’s particular activ- from his Which activities. you thinking question he of?” this re- To ties were thinking sponded: mainly “I of a sudden using jolt, landing then all of his buttocks, freeze).” strength heavy refrigerator (deep to move a well-qualified is doctors were It true that three other opinion. opposite consider In situation we this applicable the hereinbefore stated when evi- as rule conflicting In reconciled. and cannot be dence is appellee respect mov- the circumstance we mention deep being ing fully-loaded exertion freeze as ordinarily to his as be incident of a would character required employment. extreme The evidence shows conclusion, as did We have come to overexertion. compensable appellee suffered a court, the district arising in injury out of and due to an accident Admittedly appellee employment. was, course of drawing wages per February week $50.77 weekly pay- question raised about and there no appellee in thereof. correct view ments allowed Appellant cited cases have both Nebraska compara- they exemplify contending factual situations holdings that the therein us and before to the one ble should, arising controlling case here. Each effect, in be Compensation under the Act must Nebraska Workmen’s relating stand on its facts and the of this state own laws together opinions construing thereto, with our such laws. jurisdictions, And, as to the cases cited from other we Casualty Employers said Mutual Eschenbrenner v. supra: referring juris- “In to the decisions of other compensa- dictions it must be borne in mind many widely tion laws of the various states differ respects.” might opinions add, essential And, we widely construing various provisions. also differ states identical granted appel- The trial stated, hereinbefore *10 court, determining proper lant a new trial for be allowed for medical and amount to expenses

hospital incurred injury by appellee. appears because of the suffered It although appellee hospitalized February that was from coronary 1 to March 30, 1958, because of the acute February occlusion which he suffered on he 1, 1958, probably gall was also for treated duodenal ulcers ap- bladder condition while confined therein. In fact, pellee to remit consented from the amount allowed $60 hospital together for medical and services, with half of expenses trips the total of allowed as for two $54 they Omaha, because related to his treated for supports fully these The diseases. record the trial respect court’s order this in and is affirmed. of Costs appeal appellant. this are taxed to judgment In of view what we have said the of the trial respects court is in all affirmed.

Affirmed. participating J.,C. on briefs. Simmons, J., dissenting. Carter, agree

I cannot that causal connection between the acci- coronary dent and the occlusion was established. Three physicians called the defendant testified to a com- plete They absence of causal connection. testified that coronary long a is a result occlusion of arterial disease of stage progress coronary At certain of a its a duration. by trauma and is unaffected occlusion is inevitable injury directly the diseased in the area of unless portion anatomy. case, how- The decision this by the called rests on the evidence doctors ever, plaintiff. two coronary that a occlu- testified Dr. Arthur M. Greene injury the heart to the area of sion could result from an opinion It that from his or plaintiff extreme exertion. was falling and the exertion buttocks pre- deep provided pattern pushing that freeze cipitated coronary He of no instance attack. knew precipitated coronary He such a fall attack. where say nor the heart could could when attack occurred morning plain- point any event of the that caused He that it conceivable that tiff’s attack. stated was coronary might jar result from the attack point that he did not know if it could. On only. possibility he admitted that the realm was say Dr. E. that he could not that A. testified Watson any thing coronary and that one caused the attack resulting everything hap- from that exertion pened He induced the attack. stated that coronary way determining only sure of a cause discussing autopsy In attack was after death. he said relation of overexertion attack part theorizing felt it was but that he that whole *11 pattern pat- sequence if of events was a plaintiff not have suffered occurred, tern hadn’t would day coronary attack on the he did. He testified that single point that to no event induced the coro- he could nary attack. that the fall record

There no evidence is produced, or activated, accelerated buttocks alone record that it There is evidence attack. produced, activated, not have or ac- not and could did my opinion In the evidence the attack. celerated preponderance clearly to establish insufficient or caused, activated, that accel- the evidence 148

erated the I coronary attack. submit takes more than proximity time to establish connection causal between accident an such as we have here a coro- nary attack.

Tliis court occasions held several has burden of that an di- establishing accident contributed death of rectly or to the activation employee of a is not acceleration disease met mere guess, surmise, conjecture, speculation, Nelson possibility. v. Irr. Dist., 37, Neb. 95 N. Frenchman-Cambridge 201; 605, W. 2d Forman Bros., Ruderman v. 157 Neb. 658; 60 N. 2d Pixa v. Grainger W. Bros. 143 Neb. 74; 2d v. Fairmont, N. Rose City W. Neb. 550, 300 W. 574. N. R. Clarence Otteman, appellee, The Interstate Fire Casualty appellant. Inc., corporation, Company, W. 2d

105 N.

Filed November 1960. No. 34925.