Opinion
No. S-91-399.
Filed April 17, 1992.
1. Trial: Expert Witnesses. Where the testimony of the same expert is conflicting, resolution of the conflict rests with the trier of fact. 2. Workers' Compensation: Expert Witnesses. The compensation court is not required to take an expert's opinion as binding and may as may any other trier of fact, either accept or reject such an opinion. 3. Workers' Compensation: Proof. A workers' compensation claimant has the burden of proving by a preponderance of the evidence that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act.
Appeal from the Nebraska Workers' Compensation Court. Affirmed.
Jerry J. Milner, of Milner Law Office, P.C., for appellant.
D. Steven Leininger, of Luebs, Beltzer, Leininger, Smith Busick, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH,JJ.
The plaintiff-appellant employee, Ella Brandt, challenges the dismissal of her claim for benefits from the defendant-appellee employer, Leon Plastics, Inc., claiming the compensation court erred by (1) concluding the medical evidence was in conflict, (2) applying an improper standard of proof, and (3) concluding that she failed to sustain her burden of proof. We affirm.
Brandt is now 52 years old, has an eighth-grade education, and moved to the United States from Germany in 1958 at the age of 18. She began working for Leon Plastics in October 1979 and held but one other job in this country, when she worked as a waitress for a year. She denies suffering any injury or disabilities before she began to work for Leon Plastics.
After working as a sander at Leon Plastics for 2 years, she became an inspector on an assembly line. As such, her duties included removing parts from the line, touching them up with paint, and then passing them to the next person.
In approximately 1986, the parts Brandt worked with began to include "deck panels." Brandt described these 14-pound panels, measuring 5 feet by 3 feet, as being similar to a big tabletop with brackets on the back. Brandt lifted them over her head, set them on a table, and then inspected them. She would then place them on a 1-foot-high stool and bend over to touch up the sides. Finally, she would place them back on the table to paint the bottom before passing them on to the next person.
There is evidence that Brandt worked on these panels 3 weeks of every month in 1989. Leon Plastics set a quota of 300 panels in an 8-hour day, and Brandt worked up to 56 hours a week during the fall and winter of 1989. One worker testified that the line employees worked more overtime during that period than at any other time in the worker's 18 years with the company. The record reveals that several workers developed back pain after working with the panels and that management considered reassigning some of the workers because the activity was so hard on them.
Brandt began experiencing lower back pain within 6 months to a year prior to her last day of work on December 22, 1989. She testified that during November and December 1989 the pain increased and began radiating into her hip and right leg. Her coworkers noticed that during this time Brandt was in pain — she walked with a limp and complained about pain and numbness in her leg. She also became uncharacteristically willing to allow others to perform the more difficult tasks.
Leon Plastics closed its plant for the Christmas holiday. On December 29, 1989, while doing some housework, Brandt decided to see a physician, as she could no longer tolerate her back pain.
Prior to this time Brandt did not report any problems to her supervisors and had continued to participate in a weekly bowling league which began in August 1989. While bowling, she used a 12-pound ball and did a lot of stooping and bending. Brandt testified that her housework on December 29 included mopping, vacuuming, and hanging out the bedding. She also gardened a small plot in her yard and mowed the lawn on occasion during the summer and fall of 1989.
Brandt also testified that she did not slip or fall or suffer any type of trauma while bowling or doing the housework on the 29th, but that her tolerance just gave out.
The physician who examined Brandt on December 29 recommended she stop working and scheduled a CAT scan for January 4, 1990. On January 2, Brandt reported for work but a foreman, who knew of her medical problems, told her to go home.
On January 4, Brandt provided her personnel manager a physician's note excusing her from work, at which time she requested some insurance forms. Brandt filled out two applications for group health plan benefits, indicating on each that her injury was not work-related. She explained that she did not check the workers' compensation box at the instruction of the personnel manager, who told her such benefits were unavailable as she had not immediately reported an accident. However, the personnel manager denied this assertion, stating that the subject of workers' compensation did not come up at all during the January 4 conversation.
On January 11, Brandt was examined by a physical therapist. The therapist indicated on a form he used that workers' compensation was not involved. Nonetheless, the therapist testified that Brandt told him she experienced back pain while working. The therapist also stated that Brandt seemed confused as to the correct procedures for asserting a workers' compensation claim.
Brandt first raised the possibility of receiving workers' compensation benefits with her personnel manager sometime in mid-February 1990. At that time the personnel manager told her she could not claim such benefits because she failed to report the accident on January 2, when it first happened.
After physical therapy proved unsuccessful, Brandt came under the care of Drs. John A. Albers and Gordon D. Bainbridge. Bainbridge concluded that Brandt was suffering from a herniated disk and performed a laminectomy on April 2, 1990.
In letters dated August 13 and December 13, 1990, and January 10, 1991, Bainbridge wrote that, in his opinion, Brandt's injury was, to a reasonable degree of medical certainty, caused by the repetitive and cumulative trauma she sustained during her employment at Leon Plastics.
However, in a letter dated September 21, 1990, Bainbridge attributed Brandt's disability to a work-related injury occurring on December 12, 1989. Later, in a letter dated October 31, 1990, Bainbridge declared that his earlier reference to a December 12 injury was inadvertent and that date was intended only to approximate the onset of the radiating pain into her leg. The record contains no other medical evidence on the issue of causation.
The first assignment of error is resolved adversely to Brandt by the rule that where the testimony of the same expert is conflicting, resolution of the conflict rests with the trier of fact. See Doggett v. Brunswick Corp., 217 Neb. 166, 347 N.W.2d 877 (1984). Thus, it was for the compensation court to determine whether to believe Bainbridge's explanation for writing that the injury occurred on two different dates. Moreover, the compensation court is not required to take an expert's opinion as binding and may, as may any other trier of fact, either accept or reject such an opinion. See, Liberty v. Colonial Acres Nsg. Home, ante p. 189, 481 N.W.2d 189 (1992); Bernhardt v. County of Scotts Bluff, ante p. 423, 482 N.W.2d 262 (1992).
Brandt's second assignment of error, which claims the compensation court employed an improper standard of proof, stems from the recitation in the compensation court's order that in cases involving a series of repeated traumas, the claimant must show that the employment exertion "contributed in some material and substantial degree to cause the injury." The order also recites, "The medical evidence is in conflict and does not establish preponderantly that plaintiff's problems are the result of a work injury in December of 1989 or of repetitive trauma." It is clear, therefore, that because of Bainbridge's contradictory history concerning when the injury manifested itself, the compensation court found his opinion unpersuasive.
Neither is there any merit in the suggestion that requiring a showing that the repeated traumas Brandt alleges to have experienced contributed in some material and substantial degree to her claimed injury somehow enhanced her burden of proof beyond that required by the law. Under the circumstances, the expression is but a different formulation of the rule that a workers' compensation claimant has the burden of proving by a preponderance of the evidence that the employment proximately caused an injury which resulted in disability compensable under the Workers' Compensation Act. Liberty v. Colonial Acres Nsg. Home, supra; Phipps v. Milton G. Waldbaum Co., 239 Neb. 700, 477 N.W.2d 919 (1991).
The third assignment of error, in which Brandt quarrels with the compensation court's finding that she did not sustain her burden of proof, is subsumed in the analyses of the first two assignments of error.
Accordingly, the order of dismissal entered by the compensation court is affirmed.
AFFIRMED.