Sandel v. Packaging Co. of America

Caporale, J.,

dissenting.

I must respectfully dissent, for I fear the members *165of the majority have this day cast aside their judicial robes and donned the mantle of legislators.

Our Legislature has seen fit to require that an injury, to be compensable under our Workmen’s Compensation Act, result from an “accident.” One of the elements of an accident, as defined in that statute, is “an ... injury happening suddenly and violently . . . .” Neb. Rev. Stat. § 48-151(2) (Reissue 1978).

The majority opinion traces the history of certain of our decisions interpreting the sudden and violent requirement. However, the indispensable fact which satisfied the requirement in each of the cases allowing recovery, namely, trauma, is lacking in the case at hand. In Hayes v. McMullen, 128 Neb. 432, 295 N.W. 165 (1935), it was the burning of the eyes by reflected sunlight; in Brokaw v. Robinson, 183 Neb. 760, 164 N.W.2d 461 (1969), it was the breaking of a body structure; in Crosby v. American Stores, 207 Neb. 251, 298 N.W.2d 157 (1980), it was the repeated striking of items; and in Erving v. Tri-Con Industries,, 210 Neb. 339, 314 N.W.2d 253 (1982), it was the repeated application of pressure. Here, there was nothing. Though the condition manifested itself while plaintiff was at work, it came on not suddenly and violently, but gradually. Compensation is allowed merely because the employment required repeated movement of plaintiff’s arm and hand. This result so attenuates the requirement of “an . . . injury happening suddenly and violently” as to have virtually written it out of the act. Is the arthritic hip of the deliveryman gradually caused by the repeated movement of the leg and foot in walking, and which causes objective symptoms during a moment at work, to be compensable?

Even if the coverage extended by the majority were indeed to be considered the more desirable policy, that determination should be made by those elected to do so after an opportunity to study and *166debate the economic and other issues involved.

I submit, as did dissenting Judge Novicoff of the Workmen’s Compensation Court, that this case is controlled by Eliker v. D. H. Merritt & Sons, 195 Neb. 154, 237 N.W.2d 130 (1975), which denied compensation on the ground an accident was not established merely by proving the employment required a great deal of bending, stooping, and twisting of the body in picking up and moving 100-pound sacks of sand, plaster, and cement. I would reverse and dismiss.

Clinton and Hastings, JJ., join in this dissent.