Summary
In Vencil v. Valmont Indus., 239 Neb. 31, 473 N.W.2d 409 (1991), disapproved,Jordan v. Morrill County, supra, a divided Supreme Court once again affirmed the compensation court’s denial of an employee’s claim for workers’ compensation benefits for his back pain.
Summary of this case from Martinez v. Int'l Paper Co.Opinion
No. 90-1065.
Filed August 30, 1991.
1. Workers' Compensation. The compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the definition of accident contained in Neb. Rev. Stat. § 48-151(2) (Reissue 1988). 2. ___. The cumulative effects of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury within the purview of Neb. Rev. Stat. § 48-151(2) (Reissue 1988).
Appeal from the Nebraska Workers' Compensation Court. Affirmed.
Richard L. Swenson for appellant.
Eric W. Kruger and William L. Switzer, Jr., of Rickerson, Welch Kruger, for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
Plaintiff-appellant, Daniel J. Vencil, asserts, in summary, that the court below wrongly interpreted the applicable law and further erred in concluding that the evidence failed to establish he was entitled to workers' compensation benefits from his employer, defendant-appellee Valmont Industries, Inc. We affirm.
Vencil, having been born on March 9, 1961, is 30 years old. He graduated from high school on May 16, 1979, and began working for Valmont on August 27 of that year. He continued in this employment, his first and only full-time job, until July 31, 1989. Although he performed various duties, his work at all times required continuous bending, twisting, stooping, and the lifting and pushing of items weighing up to 200 pounds.
He began having low back pain in 1986 or 1987 which, over time, increased both in frequency and severity. He first consulted a physician in late 1988 or early 1989. By then, the pain was both intense and constant. On February 15, 1990, after a course of conservative treatment, surgery was performed on his low back, and he began to experience some relief.
There is general agreement among the various examining and treating physicians, including the surgeon who performed the surgery, that although it cannot be said with reasonable medical certainty that Vencil's back condition was the direct result of his employment, his work activity contributed to and aggravated his condition. In the surgeon's view, although there was no specific instance of trauma or injury, the condition was consistent with the "kind of repetitive ongoing trauma that gradually caused deterioration of the fibers around the disk that then eventually allowed it to bulge out."
The disposition of Vencil's argument that his condition is compensable either as being the result of an accident or an occupational disease, or some hybrid of the two, is controlled by the recently decided Maxson v. Michael Todd Co., 238 Neb. 209, 469 N.W.2d 542 (1991). We therein held that the compensability of a condition resulting from the cumulative effects of repeated work-related trauma is to be tested under the definition of accident contained in Neb. Rev. Stat. § 48-151(2) (Reissue 1988). That statute requires, among other things, that there be an injury which happens "suddenly and violently . . . producing at the time objective symptoms of an injury." The cumulative effects of repeated work-related trauma which do not at an identifiable moment produce objective symptoms requiring, within a reasonably limited period of time, medical attention and the interruption or discontinuance of employment are not the product of an accidental injury within the purview of § 48-151(2). Maxson, supra.
Vencil developed his symptoms over a period of not less than 7 years, and they required no interruption or discontinuance of his employment until almost 10 years had elapsed. Thus, the record fails to sustain either of Vencil's summarized assignments of error.
AFFIRMED.