Gilbert v. Sioux City Foundry

422 N.W.2d 367, 228 Neb. 379, 1988 Neb. LEXIS 153
CourtNebraska Supreme Court
DecidedApril 29, 1988
Docket87-281
StatusPublished
Cited by10 cases

This text of 422 N.W.2d 367 (Gilbert v. Sioux City Foundry) 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
Gilbert v. Sioux City Foundry, 422 N.W.2d 367, 228 Neb. 379, 1988 Neb. LEXIS 153 (Neb. 1988).

Opinions

Fahrnbruch, J.

Brent F. Gilbert, plaintiff, appeals a majority decision of a Workers’ Compensation Court panel that reduced the award plaintiff received from a single workers’ compensation judge. Sioux City Foundry cross-appeals.

We hold that the findings and award of the workers’ [381]*381compensation panel were clearly wrong and that plaintiff’s petition for compensation should be dismissed.

Plaintiff claims the panel erred in three particulars: (l).in failing to either award or deny certain medical expenses; (2) in reducing plaintiff’s partial disability award from that granted by the single workers’ compensation judge’s award; and (3) in failing to award plaintiff rehabilitation services.

Defendant, in its cross-appeal, assigns as error the panel’s majority finding that the plaintiff’s disability was caused by an accident arising out of and in the course of his employment.

In reviewing a case of this nature, the findings of fact made by the Workers’ Compensation Court after rehearing have the same effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. Kuticka v. University of Nebraska-Lincoln, 227 Neb. 565, 418 N.W.2d 593 (1988); Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987); Neb. Rev. Stat. § 48-185 (Cum. Supp. 1986).

Plaintiff began working in defendant’s foundry in 1978. Prior to knee surgery in 1985, plaintiff operated a “squeezer” machine. That machine was used to mold products in the foundry. The plaintiff contends that he began to have symptoms in his knees and that he permanently injured both of his knees in the operation of the squeezer. Beneath the table portion of the squeezer were two paddles which were operated by the operator, using the side of each of his knees. The evidence is unclear as to whether the knee struck the paddle or whether the knee moved the paddle through pressure alone. The defendant testified that each paddle was moved 1 inch by pressure. The paddles were used to open air valves, one of which permitted air to help pack sand in the molding process and the other of which permitted air to assist in taking the mold apart.

At trial, plaintiff claimed that using his knees to activate the paddles caused his knees to hurt. He also said that several times he fell off a raised grate on which he stood to operate the squeezer. At trial, Gilbert did not claim that his knee problems were caused by a fall or by the twisting of his knees. The plaintiff first sought medical assistance from his family physician. When conservative treatment did not alleviate the. [382]*382soreness in Gilbert’s knees, his family doctor referred Gilbert to an orthopedic surgeon. After further conservative treatment, arthroscopic surgery was performed upon both of Gilbert’s knees on August 1, 1985. Arthroscopy revealed two abnormal folds in the synovial membrane, or lining of the joint, in each knee. The folds were caused either congenitally or through improper development of the knees. The folds were excised. Other tissue on the outside of each patella (kneecap) was released to permit the kneecaps to glide properly. The kneecaps had been prevented from gliding properly. In the left knee, there was minimal chondromalacia, i.e., the cartilage was degenerating. It was a wearing-out process.

Gilbert’s orthopedic surgeon testified that the folds in Gilbert’s knees were congenital. An orthopedic surgeon engaged by the defendant examined the plaintiff. This surgeon testified that the folds in the lining of Gilbert’s knees formed while plaintiff’s knees were in the developmental stage. Neither surgeon attributed the folds to any trauma or to Gilbert’s work. There being no medical evidence to the contrary, it can only be concluded that plaintiff’s folds were from natural causes, and any disability caused by them is not compensable. A disability that is due to natural causes is not compensable under the workers’ compensation law. This is true even though the disability occurs while the employee is at work. Neb. Rev. Stat. § 48-151(4) (Reissue 1984). See, also, Sellens v. Allen Products Co., Inc., 206 Neb. 506, 293 N.W.2d 415 (1980).

Any finding of compensable disability under the workers’ compensation law based upon the folds in Gilbert’s knees would be clearly wrong.

Next to be considered is whether Gilbert’s work on the squeezer machine aggravated a preexisting condition and whether such aggravation, if any, is compensable under the workers’ compensation law.

There is no presumption from the mere occurrence of an unexpected or unforeseen injury that the injury was in fact caused by employment. § 48-151. Also, the presence of a preexisting condition enhances the degree of proof required to establish that the injury arose out of and in the course of employment. Kingston v. Jensen Tire Co., 227 Neb. 294, 417 [383]*383N.W.2d 164 (1987); Hayes v. A.M. Cohron, Inc., 224 Neb. 579, 400 N.W.2d 244 (1987).

Under § 48-151(4), a disability that is the result of a natural progression of any preexisting condition is not compensable. In order to sustain the burden of proving an accident as well as causation, the evidence presented by the claimant must be definite and certain to warrant a compensation award.; Kingslan, supra; Hayes, supra; Masters v. Iowa Beef Processors, 220 Neb. 835, 374 N.W.2d 21 (1985).

In Gilbert’s case, his injuries were not of an objective nature. Therefore, medical testimony was required to establish a causal connection between plaintiff’s work and his sore knees. Husted v. Peter Kiewit & Sons Constr. Co., 210 Neb. 109, 313 N.W.2d 248 (1981).

To completely resolve this case there are three additional rules of law that must be considered: (1) “For medical testimony to be the basis for an award, it must be sufficiently definite and certain that a conclusion can be drawn that there was a causal connection between the accident and the disability.” Powell v. W. G. Pauley Lumber Co., 217 Neb. 707, 710, 350 N.W.2d 556, 558 (1984); Husted, supra; Randall v. Safeway Stores, 215 Neb. 877, 341 N.W.2d 345 (1983). (2) “An award cannot be based upon conflicting inferences of equal degrees of probability.” Husted, supra at 114, 313 N.W.2d at 251; Camarillo v. Iowa Beef Processors, Inc., 201 Neb. 238, 266 N.W.2d 917 (1978); Marion v. American Smelting & Refining Co., 192 Neb.

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Gilbert v. Sioux City Foundry
422 N.W.2d 367 (Nebraska Supreme Court, 1988)

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422 N.W.2d 367, 228 Neb. 379, 1988 Neb. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-sioux-city-foundry-neb-1988.