Clobes v. Nebraska Boxed Beef

472 N.W.2d 893, 238 Neb. 612, 1991 Neb. LEXIS 264
CourtNebraska Supreme Court
DecidedJuly 12, 1991
Docket90-417
StatusPublished
Cited by4 cases

This text of 472 N.W.2d 893 (Clobes v. Nebraska Boxed Beef) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clobes v. Nebraska Boxed Beef, 472 N.W.2d 893, 238 Neb. 612, 1991 Neb. LEXIS 264 (Neb. 1991).

Opinions

Grant, J.

Plaintiff, Michael Clobes, appeals from an order by a three-judge panel of the Workers’ Compensation Court on rehearing. The order dismissed his claim for workers’ compensation based on a tear in his aorta. He had originally been awarded compensation by a single judge of that court. We reverse and remand.

Plaintiff was employed by defendant-appellee Nebraska Boxed Beef from October 11 to November 3,1988. During this period, he worked approximately 14V2 days as a bull saw operator trainee. The bull saw operator position is a two-person operation which consists of one employee guiding a 150- to 250-pound hindquarter of beef from an overhead track onto a dumping table, and then another employee pushing the hindquarter through a powersaw and onto a conveyor belt. The two employees would trade positions about every half hour. Approximately 300 to 400 hindquarters per hour could be processed in this manner.

It is unclear exactly how much heavy labor was required of plaintiff as a trainee. There was testimony that when plaintiff was being trained, a third party helped with the operation of the bull saw. The third party did much of plaintiff’s work.

On the same day that plaintiff began work at Nebraska Boxed Beef’s plant, he also began a second job vacuuming car interiors at Stacy’s Wash & Shine. Both businesses are located in Omaha. Plaintiff worked 16.5 total hours at the carwash during [614]*614the 4 weeks prior to his hospitalization. The record indicates that plaintiff had previously held a number of other jobs involving manual labor.

Plaintiff was 28 years old at the time of his hospitalization and had a known heart murmur. Plaintiff suffered from a congenital condition known as Marfan’s syndrome, although this was not diagnosed until after plaintiff left his work at Nebraska Boxed Beef. Marfan’s syndrome affects the connective tissues of the body and frequently manifests itself as a defect in the aortic valve of the heart. Plaintiff had an insufficiency in an aortic valve which allowed blood to leak back into his left ventricle, causing the ventricle to become enlarged.

Plaintiff testified that he began to experience shortness of breath and chest tightness soon after beginning work at Nebraska Boxed Beef’s plant. He worked, without reporting any pain or discomfort, on October 11, 12, 13, 14, 17, 18, 19, and 20. Defendant’s plant was closed on Friday, October 21. Plaintiff testified that because he had difficulty breathing Sunday night, on Monday, October 24, he went to his hometown of Humboldt to see his family doctor, Dr. Stephen Stripe. Before this trip to the doctor, plaintiff had last worked for Nebraska Boxed Beef on Thursday the 20th and had last worked at the carwash on Friday, October 21. Although Dr. Stripe ordered a chest x ray and noted that the heart had increased in size, he found that plaintiff was in no immediate danger and allowed him to return to work at both jobs. Dr. Stripe set up an appointment for him for the following Monday, October 31, with Dr. James Morgan, an Omaha cardiologist.

On October 31, after having worked on October 26, 27, and 28 the previous week, plaintiff saw Dr. Morgan. An echocardiogram was ordered. The echocardiogram revealed the presence of the aortic insufficiency and the enlarged heart. Plaintiff returned to work on the day of the examination and worked on November 1 and 2.

Plaintiff testified that he continued to experience problems breathing during those 3 days at work. On Thursday, November 3, plaintiff left work early and telephoned Dr. Morgan.

Liz Cramer, defendant Nebraska Boxed Beef’s personnel [615]*615manager, testified that plaintiff came in the following day, Friday, November 4, and requested that she help him fill out a first report of injury for workers’ compensation. She testified plaintiff said that he had a degenerative heart valve and that his doctor had told him it was work related. The company’s work records show that plaintiff was absent on November 4. Plaintiff’s last day of work for Nebraska Boxed Beef was November 3, when he left work early.

Work records from the carwash show that plaintiff worked from 12:40 p.m. to 1:05 p.m. on Friday, November 4, vacuuming car interiors. Plaintiff’s girl friend was a regular employee at Stacy’s. The manager at Stacy’s testified that plaintiff was allowed to work at the carwash almost anytime that he wanted to fill in some time. Plaintiff had no regular schedule at the carwash.

Plaintiff testified that later that afternoon he returned to Humboldt. He told his mother that he was having difficulty breathing. He saw Dr. Stripe later that evening and was admitted to Community Memorial Hospital in Humboldt. Test results showed that plaintiff was suffering from congestive heart failure. After spending the weekend at the hospital in Humboldt, he returned to Omaha, where Dr. Morgan admitted him to Methodist Hospital for a heart catheterization. The catheterization was performed on Monday, November 7. It showed the aortic insufficiency, marked left ventricle failure, and an aneurysm of the ascending aorta. The catheterization also showed a dissection, or tear, in the aorta. On Thursday, November 10, surgery was performed to correct the aortic insufficiency, or leaky heart valve. During the operation, plaintiff’s aortic valve and the ascending portion of his aorta were replaced. This operation corrected the aortic dissection. On December 9, plaintiff returned to work at the carwash. He never worked again at Nebraska Boxed Beef’s plant.

Dr. Morgan testified that plaintiff had Marfan’s syndrome. He testified that Marfan’s is a congenital disease which weakens the connective tissues of the body. He testified that it frequently manifests itself in damage to blood vessels, especially the aorta. He testified, however, that it is not inevitable that a Marfan’s patient would experience blood vessel damage and, in fact, that [616]*616many Marfan’s patients do not.

Dr. Morgan stated that it was his opinion, to a reasonable degree of medical certainty, that the tear in plaintiff’s aorta was caused by sudden increases in blood pressure resulting from the repetitive strenuous nature of plaintiff’s work at Nebraska Boxed Beef’s plant. He stated that plaintiff would be forced to lead a sedentary lifestyle and that he would be at severe risk if he sought to engage in isometric activities such as lifting or carrying heavy objects.

Defendants presented evidence from two physicians who disputed Dr. Morgan’s opinion as to causation. When asked if plaintiff’s work at Nebraska Boxed Beef contributed to the aortic dissection, Dr. Michael Sketch testified:

We have no evidence that it contributed to or that it didn’t contribute to.
Since we don’t have any evidence to state when or where it occurred, we can’t say his work had anything to do with it because of the fact that’s previously stated that these aneurysms will rupture or dissect, if you want to use that term, either spontaneously or with minimal exertion.
And it could have occurred while Mr. Clobes was watching TV, sitting down, carrying the groceries in, having a bowel movement, or working at his second job which was cleaning out cars.

Dr. Sketch did testify that sudden increases in blood pressure enhance the risk of aortic tears in Marfan’s patients who have aneurysms of the aorta or aortic insufficiency.

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Related

Morton v. Hunt Transportation, Inc.
480 N.W.2d 217 (Nebraska Supreme Court, 1992)
Cline v. COUNTY SEAT LOUNGE, INC.
473 N.W.2d 404 (Nebraska Supreme Court, 1991)
Clobes v. Nebraska Boxed Beef
472 N.W.2d 893 (Nebraska Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
472 N.W.2d 893, 238 Neb. 612, 1991 Neb. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clobes-v-nebraska-boxed-beef-neb-1991.