Frank v. a & L INSULATION

Stephan, J.,

dissenting.

I agree with the Court of Appeals that the evidence in this case is insufficient as a matter of law to support the award and therefore respectfully dissent. In order to recover under the Nebraska Workers’ Compensation Act, a claimant has the burden of proving by a preponderance of the evidence that an accident or occupational disease arising out of or occurring in the course of his or her employment proximately caused an injury *916which resulted in disability compensable under the act. U S West Communications v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998); Dyer v. Hastings Indus., 252 Neb. 361, 562 N.W.2d 348 (1997). While the medical evidence in this case may be construed to relate Frank’s injury to his employment in general, it does not in my view establish the essential causal link between the injuries and an accident arising out of and in the course and scope of that employment, as the Nebraska Workers’ Compensation Act requires.

I agree with the majority that this case presents a claim based upon the alleged cumulative effects of repeated work-related trauma and thus must be analyzed under the definition of “accident” as defined in Neb. Rev. Stat. § 48-151(2) (Reissue 1993). See, Schlup v. Auburn Needleworks, 239 Neb. 854, 479 N.W.2d 440 (1992); Maxson v. Michael Todd & Co., 238 Neb. 209, 469 N.W.2d 542 (1991). Under our jurisprudence, the statutory requirement that a compensable accident must occur “suddenly and violently” is satisfied if injury occurs at an identifiable point in time, requiring the employee to discontinue employment and seek medical treatment. Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982). This court has stated that “specification of ‘suddenly and violently’ is to distinguish compensable injuries such as those in Sandel from chronic conditions which develop over a period of many years where the injury cannot be traced to a particular job or activity of the worker.” Schlup, 239 Neb. at 861, 479 N.W.2d at 446. See, Vencil v. Valmont Indus., 239 Neb. 31, 473 N.W.2d 409 (1991); Maxson v. Michael Todd & Co., supra.

The majority determines that the repetitive trauma constituting the accident in this case was the “stucco work” which Frank performed in the spring of 1995 when he first noticed symptoms of pain in his wrist and shoulders. I find this conclusion somewhat tenuous in that Frank admits that the work he did in the spring of 1995 was “pretty much the same work” he performed during 1994 and 1993. However, assuming arguendo that the majority has correctly defined the accident, I view the medical evidence as insufficient to support a reasonable inference that the accident caused Frank’s injuries.

This can be seen by comparing the medical evidence in this case to that presented in two cases where we have affirmed *917compensation awards based upon repetitive-trauma injuries. In Schlup, supra, the plaintiff, an experienced seamstress, was assigned to a task on the sewing assembly line which was different from what she had done previously. The new position required her to repetitively pull, tug, and push denim through a machine in order to attach collars, cuffs, pockets, and zippers to denim jackets and jeans. After working at this new position for less than 3 months, she developed symptoms which were diagnosed as bilateral carpal tunnel syndrome and which ultimately required surgery and prevented her from working. We held that the evidence supported a finding that the repetitive hand movements associated with the new position constituted an accident within the scope of the Nebraska Workers’ Compensation Act and that causation was established by a physician’s testimony, based upon reasonable medical certainty, that the plaintiff’s carpal tunnel syndrome problems were caused or worsened by the repetitive heavy hand movements she was required to make in her most recent assignment.

In Sandel, supra, a worker in a manufacturing plant was transferred from her job as a forklift driver to that of operating a “slitter-scorer” machine used to make cardboard boxes. Upon assuming her new duties, she began experiencing symptoms of bursitis which, over a 5-month period, rendered her unable to work. A medical expert testified that in his opinion, the work done by Sandel on the slitter-scorer machine caused the bursitis, because no other job which she had held required her to constantly move and bend her wrist and arm and she did not do any kind of repetitive motion of this nature while at home. Based upon these facts, we affirmed an award of compensation.

In the present case, the medical evidence does not connect Frank’s injuries with the particular job or activity which the majority deems to constitute an accident. Frank could not recall telling Dr. Gilíes the specific nature of the work he performed at A & L. Dr. Gilíes testified that when she first examined Frank on August 8, 1995, he stated that his symptoms had become progressively worse during the preceding 6 months, but Dr. Gilíes admitted: “I don’t know what activity he was doing specifically in that six months, no.” The hypothetical question posed to Dr. Gilíes by Frank’s counsel did not focus on the *918stucco work performed by Frank in the spring of 1995, but, rather, on his general duties and activities throughout his employment with A & L Insulation beginning in 1990.

At best, the medical evidence would support an inference of a general causal relationship between Frank’s employment and his injuries. However, the pertinent inquiry in this case is not whether Frank’s injury was caused by his employment, but whether it was caused by an accident arising out of and in the course o/that employment. I can find no evidence establishing the necessary causal link between the accident identified by the majority and the injuries for which it concludes that Frank is entitled to compensation. Accordingly, I agree with the Court of Appeals that the award of the Workers’ Compensation Court was based upon a clearly erroneous factual determination and should therefore be reversed with directions to dismiss.

Miller-Lerman, J., joins in this dissent.