Leitz v. Roberts Dairy

465 N.W.2d 601, 237 Neb. 235, 1991 Neb. LEXIS 76

• Court: Nebraska Supreme Court
• Decided: February 15, 1991
• Docket: 90-343
• Status: Published

Opinions

Per Curiam.

Roberts Dairy (Roberts) and its insurance carrier appeal from the unanimous finding by the Workers’ Compensation Court upon rehearing that a fatal heart attack suffered by Roberts’ employee Kenneth E. Leitz shortly after he unloaded carts containing frozen ice cream products arose out of and in the course of his employment with Roberts. We affirm.

The appellants’ four assignments of error combine to allege that the Workers’ Compensation Court was clearly wrong in finding that Leitz’ fatal injury arose out of and in the course of his employment with Roberts.

In determining whether the evidence is sufficient to support an award by the Workers’ Compensation Court, the evidence must be considered in the light most favorable to the successful party. [Citation omitted.] As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of witnesses and the weight to be given their testimony. [Citation omitted.]

Reynolds v. School Dist. of Omaha, 236 Neb. 508, 509, 461 N.W.2d 758, 760 (1990).

Viewed in the light most favorable to the appellees, the record reflects the following: Leitz was employed by Roberts as a semitrailer driver, working out of its Omaha distribution facility. On April 20, 1988, Leitz, then 48 years of age, was accompanied on his route by Gilbert Stogdill. Leitz’ widow, Elizabeth Leitz, testified that at that time, Leitz was 6 feet tall and weighed between 195 and 210 pounds. As part of his duties, Leitz was required to unload carts which contained frozen ice cream products. The ice cream carts weigh approximately 150 pounds when empty. When the carts are loaded, they generally weigh approximately 300 to 400 pounds, but can range from 200 to 700 pounds in weight. The steel carts are approximately 6 feet in height and 30 by 28 inches in width and depth and are moved about on four 5-inch wheels. The carts were placed in threes across the width of the trailer in question on April 20. Although a mechanism holds the carts in place during transport, Stogdill testified that it was possible that the wheels of the carts became nonaligned during the trip.

On the workday in question, which started approximately at 4:30 a.m., Leitz and Stogdill were to deliver ice cream to “six stops on the drop route.” Before the first delivery, the two men drove to Rockport, Missouri, where Leitz ate breakfast. The pair then drove to Falls City, Nebraska, where they delivered one cart to a facility, and then drove to the Sabetha, Kansas, plant, where they left two carts. Between 11 and 11:30 a.m., Leitz and Stogdill arrived at a Roberts facility in Salina, Kansas, to unload 13 carts. Stogdill testified that the two men first straightened the carts in the trailer. After removing the load bars on the inside of the trailer, Leitz maneuvered the carts from their stationary position, out a side door, and onto a hydraulic lift. Stogdill testified that the most difficult aspect of propelling a cart is its initial movement from a stationary position. After the carts were placed on the hydraulic lift, Stogdill moved the carts from the lift and into a cooler. Leitz and Stogdill replaced the loaded carts in the trailer with empty carts. There was testimony that during this process, Leitz told Stogdill that he was woozy. It took about 30 to 45 minutes to unload and reload the trailer.

The temperature inside the trailer was 20 degrees with the doors open and 10 degrees below zero when they were closed. There was testimony that the outside temperature on April 20 was approximately 85 to 90 degrees. Stogdill recalled that Leitz was wearing only a hooded sweater over his work clothes. Dr. Ward A. Chambers, a cardiologist, testified that the human body makes adaptive changes in cold weather that are not beneficial to the heart and appear to adversely affect oxygen requirements. He further testified that large changes in temperature tend not to be well tolerated by the heart.

After finishing their duties on the loading dock at Salina, Leitz and Stogdill went into an office to complete some paperwork. After approximately 10 to 15 minutes, Leitz returned to the truck to retrieve additional paperwork. He came back to the office and then proceeded to a restroom. When Leitz returned from the restroom, he looked pale. He sat down by a receptionist and, in response to Stogdill’s query, said that he felt dizzy. A short while later, Leitz sat down next to Stogdill. When another worker asked what was wrong, Leitz stated that as he was returning to the office from his truck, he felt a sharp pain run up his left arm, and that he became dizzy. After Leitz said that, he lay down and a rescue unit was summoned.

Emergency medical personnel were contacted at 1:25 p.m. Shortly after the paramedics’ arrival, Leitz went into cardiac arrest. He was taken to St. John’s Hospital in Salina, where he was pronounced dead at 2:15 p.m.

The record reflects that there were several factors that increased the risk of Leitz’ suffering a heart attack. Elizabeth Leitz testified that her husband had high blood pressure, but that he had been taking medication faithfully for it since the fall of 1983. There was medical expert testimony that Leitz’ hypertension was being fairly well controlled. Dr. Edward R. Farrage, Leitz’ family physician, testified that less than 2 weeks prior to his death, Leitz’ blood pressure was 130 over 80, which was within normal limits. Leitz smoked cigarettes and was “chain smoking” on the day he died. Dr. Chambers testified that tobacco use will cause a degree of carbon monoxide which displaces oxygen in the blood. The record reflects that Leitz rarely exercised. Dr. Chambers reported:

Autopsy revealed he had evidence of cardiac enlargement and severe atherosclerosis of the coronary arteries with complete occlusion of [the] left main coronary artery as well as severe atherosclerosis of his left anterior descending circumflex and right coronary artery. The heart was dilated and showed evidence of an old anterior myocardial infarction. The other left ventricular muscle was hypertrophied and most likely secondary to a long standing history of systemic hypertension.

On March 24,1989, Elizabeth Leitz, as administrator of the estate of Leitz and as the deceased’s widow, and Leitz’ dependent children brought this action in the Workers’ Compensation Court. After a one-judge hearing, the cause was dismissed on July 31, 1989, because the “plaintiff has not proved to a reasonable degree of medial [sic] certainty or probability that the heart attach [sic] which caused his death resulted from on-the-job exertion, which was greater than that experienced by the average man in normal non-employment life.” A timely motion for rehearing was filed. Upon rehearing, a three-judge panel of the Workers’ Compensation Court found Leitz’ heart attack was covered under the compensation act. It is from the order upon rehearing that Roberts and its insurer appeal.

“When personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment, such employee shall receive compensation therefor from his or her employer ...” Neb. Rev. Stat. § 48-101 (Reissue 1988). “The terms [‘injury’ and ‘personal injuries’] shall not be construed to include disability or death due to natural causes but occurring while the employee is at work, nor to mean an injury, disability, or death that is the result of a natural progression of any preexisting condition.” Neb. Rev. Stat. § 48-151 (Reissue 1988). Section 48-151 further provides, “The claimant shall have a burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment.”

“In cases under the compensation act involving heart attacks, the principal issue is usually one of causation. The disability or death is not compensable unless the injury or death arose out of the employment. There is no fixed formula by which the issue may be resolved and the issue must be determined by the facts of each case.”

Mann v. City of Omaha, 211 Neb. 583, 591-92, 319 N.W.2d 454, 458 (1982).

We begin our analysis by recalling that the issue in regard to causation of an injury or disability is one for determination by the fact finder, whose findings will not be set aside unless clearly erroneous. See Way v. Hendricks Sodding & Landscaping, Inc., 236 Neb. 519, 462 N.W.2d 99 (1990).

Roberts and its insurer contend that Leitz’ severe coronary artery disease and personal risk factors result in an enhanced degree of proof for the claimants, which standard has not been met in this case. Beginning in 1969, this court had consistently held that the presence of a preexisting disease or condition enhances the degree of proof required to establish that the injury arose out of and in the course of employment. See, e.g., Spangler v. State, 233 Neb. 790, 448 N.W.2d 145 (1989); Hyatt v. Kay Windsor, Inc., 198 Neb. 580, 254 N.W.2d 92 (1977); Brokaw v. Robinson, 183 Neb. 760, 164 N.W.2d 461 (1969) (articulating the “enhanced degree of proof” requirement for the first time). In Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990), the “enhanced degree of proof” language was expressly disapproved. This court clarified a claimant’s burden of proof in such cases, explaining that “for an award based on disability, a claimant must establish, by a preponderance of the evidence, that the employment proximately caused an injury which resulted in disability compensable under the Workers’ Compensation Act.” Id. at 468-69, 461 N.W.2d at 572-73. Accordingly, the issue is not one of enhanced degree of proof but of causation.

The causation issue embraces two elements: (1) legal cause and (2) medical cause. IB A. Larson, The Law of Workmen’s Compensation § 38.83(a) (1987). See, also, Sellens v. Allen Products Co., Inc., 206 Neb. 506, 293 N.W.2d 415 (1980) (citing IB A. Larson, supra, with approval). “Under the legal test, the law must define what kind of exertion satisfies the test of ‘arising out of the employment.’ Under the medical test, the doctors must say whether the exertion (having been held legally sufficient to support compensation) in fact caused this collapse.” IB A. Larson, supra, § 38.83(a) at 7-276 to 7-277.

This court has adopted the following test to establish legal cause when a preexisting disease or condition is present: An exertion- or stress-caused heart injury to which the claimant’s preexisting heart disease or condition contributes is compensable only if the claimant shows that the exertion or stress encountered during employment is greater than that experienced during the ordinary nonemployment life of the employee or any other person. Spangler, supra. Appellants contend that the evidence fails to show that Leitz’ employment exertion was greater than that experienced during the ordinary nonemployment life of Leitz or any other person.

Before addressing appellants’ contention, we initially consider whether the test for legal cause is still viable. This court has stated that this test is simply an application of the enhanced degree of proof in preexisting condition cases. Spangler, supra; Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982); Engel v. Nebraska Methodist Hospital, 209 Neb. 878, 312 N.W.2d 281 (1981). Since the “enhanced degree of proof” language was disapproved in Heiliger, supra, it would seem to follow that the “exertion greater than nonemployment life” test, which is purportedly an application of the enhanced degree of proof, no longer has any validity.

However, that is not the case. Beck v. State, 184 Neb. 477, 168 N.W.2d 532 (1969), the seminal case, cites Brokaw, supra, for the proposition that if a preexisting condition is present and the employment strain is no greater than that of nonemployment life, there can be no recovery under the workers’ compensation laws. For that reason, later cases have misconstrued the “stress greater than nonemployment life” standard as an application of the enhanced degree of proof, which was the holding of Brokaw, supra. The Beck test was not based on the enhanced degree of proof. The rationale for the test was explained:

“ [W]hen the employee contributes some personal element oí risk — e.g.,... a personal disease which figures causally in his injury — the employment must contribute something substantial to increase the risk. The reason is that the employment risk must offset the causal contribution of the personal risk. ... If there is some personal causal contribution in the form of a previously weakened or diseased heart, a heart attack would be compensable only if the employment contribution takes the form of an exertion greater than that of non-employment life. Note that the comparison is not with this employee’s usual exertion in his employment, but rather with the exertions present in the normal non-employment life of this or any other person.”

(Emphasis in original.) Beck, supra at 480, 168 N.W.2d at 533-34 (quoting Larson, The “Heart Cases” in Workmen’s Compensation: An Analysis and Suggested Solution, 65 Mich. L. Rev. 441 (1967)). See, also, IB A. Larson, The. Law of Workmen’s Compensation § 38.83(b) (1987) (explaining that the foregoing is a test for legal causation). In other words, to show that the proximate cause of an employee’s heart attack is work related, the employee must prove that he or she suffered some work-related stress or exertion which is greater than that in the ordinary nonemployment life of the employee or any other person. This is necessary to break any causal connection between the natural progression of the preexisting condition or disease and the injury at the workplace. Otherwise, the fact that the heart injury occurred at work would be strictly fortuitous.

The enhanced degree of proof language merely attempted to explain this problem of proximate or legal cause. See Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990). Thus, it is clear that the “stress greater than nonemployment life” test is a function of proximate or legal cause, not an enhanced degree of proof, and remains valid.

Dr. Lydia K. Thigpen, a professor of physical education whose doctoral degree had an emphasis in the study of human movement, testified regarding the issue of employment exertion. She testified that to move a 200-pound cart from a stationary position, it took 20 to 25 pounds of force output. Moving a 700-pound cart from a standing position requires around 180 pounds of force output, Dr. Thigpen explained. She testified that moving a 700-pound cart requires the equivalent amount of force necessary to squat lift 180 pounds if one was weight lifting. In contrast, Dr. Thigpen testified that the highest force output for activities around the Leitz home for which she could obtain a reading was I6V2 pounds of force output. She further testified that based on a reasonable degree of scientific certainty, Leitz’ measured daily activities probably would have generated less than 20 pounds of force output. Dr. Thigpen testified that Leitz’ activities in loading and unloading the carts required significantly greater exertion than his daily activities at home and those encountered by an average person in his or her nonemployment life. There was evidence that if the wheels were not aligned, more pounds of force output were required to move the cart. Roberts elicited testimony from various Roberts employees that it was no more difficult to move a cart than to mow a lawn or carry a bag of golf clubs. Dr. Michael H. Sketch, the chairman of the division of cardiology at Creighton University, testified that due to Leitz’ severe heart disease, it would have been impossible for him to do any major physical work. As the trier of fact, the compensation court panel is the sole judge of the credibility of the witnesses. From its decision, it is apparent that the panel found the claimants’ witnesses more credible. On the basis of the record presented to this court, it cannot be said that the compensation court panel was clearly erroneous in finding that Leitz’ exertion or stress associated with unloading the ice cream carts on April 20 was greater than that experienced during the ordinary nonemployment life of Leitz or any other person.

While legal cause is established by satisfying the “stress greater than nonemployment life” test, a claimant must still demonstrate medical causation. If it is claimed that an injury was the result of stress or exertion in the employment, medical causation is established by a showing by the preponderance of the evidence that the employment contributed in some material and substantial degree to cause the injury. Mann v. City of Omaha, 211 Neb. 583, 319 N.W.2d 454 (1982); Sellens v. Allen Products Co., The., 206 Neb. 506, 293 N.W.2d 415 (1980).

Dr. Chambers testified that “physical exertion causes an increase in myocardial oxygen consumption and the only way it can get this is through blood flow through the coronary arteries.” He further testified that if the demand for oxygen is greater than the supply, the heart muscle malfunctions. Dr. Chambers testified that Leitz was in ventricular fibrillation, which he defined as a “totally chaotic electrical rhythm that causes a totally chaotic contraction pattern to where the heart pumps no blood and is virtually uniformly fatal in human beings.” Based on a reasonable degree of medical certainty, Dr. Chambers concluded, “[T]he physical exertion associated with [Leitz’] employment on the day of his death was a direct cause of the arrhythmia that caused his demise.” The doctor testified that his opinion was not altered by the presence of the risk factors such as smoking, obesity, consumption of a large breakfast, or hypertension. Dr. Chambers testified that the time lapse between Leitz’ exertion and the onset of his heart attack had no significance because an arrhythmia can occur up to 24 hours after the precipitating event.

The appellants assert that the claimants’ experts, by failing to specifically exclude the role of Leitz’ preexisting disease, did not provide the necessary expert medical testimony to meet the claimants’ burden of proof. This argument borders on the frivolous. Dr. Chambers was aware of Leitz’ preexisting disease. By his conclusion that Leitz’ heart attack arose out of and in the course of employment, it necessarily follows that he determined that the preexisting disease was not the cause of Leitz’ fatal injury. A claimant is not required to prove that a preexisting disease or condition will not sometime in the future through natural progression result in disability. See Engel v. Nebraska Methodist Hospital, 209 Neb. 878, 312 N.W.2d 281 (1981).

Although Dr. Sketch, Roberts’ medical expert, opined, to a reasonable degree of medical certainty, that the unloading of the truck had no bearing on Leitz’ death, it is not this court’s function to choose which expert is the most credible. When the record presents conflicting medical testimony, the Supreme Court will not substitute its judgment for that of the Workers’ Compensation Court. Binkerd v. Central Transportation Co., 236 Neb. 350, 461 N.W.2d 87 (1990). Thus, the compensation court panel was not clearly erroneous in finding that Leitz’ employment contributed in some material and substantial degree to cause his fatal heart attack.

Because Roberts has failed to obtain a reduction in the amount of the award, it must pay attorney fees of $2,500 for the services of the claimants’ attorney in this court. See Neb. Rev. Stat. § 48-125 (Reissue 1988).

The compensation court panel’s finding that legal and medical cause has been shown in this case is not clearly erroneous. Its decision is therefore affirmed.

Affirmed.