George Wingfield v Hill Brothers Transportation Inc (2014) H&FLR 2014-30
Supreme Court of Nebraska
16 May 2014
Coram: Heavican CJ, Wright, Connolly, Stephan, McCormack, Miller-Lerman and Cassell JJ.
Appearing for the Plaintiff: Mr Stacy L. Morris (of Lamson, Dugan & Murray LLP)
Appearing for the Defendant: Caroline M. Westerhold (of Baylor, Evnen, Curtiss, Grimit & Witt LLP)
Catchwords: Nebraska – workers compensation – deep vein thrombosis – pulmonary embolism – pre-existing condition – causation
Facts: The plaintiff commenced work with the defendant as a truck driver in or about late January 2010. On 26 February 2010 he was found to be suffering a deep vein thrombosis (DVT) and pulmonary embolism. It was accepted that he was required to work approximately ten hours a day and would be seated during that time period.
The plaintiff had been a truck driver for around 35 years. He had suffered two similar incidents previously, once in September 2005 in Missouri and once on 31 December 2009 (that is, about a month before beginning work with the defendant). Following the 2009 incident he was prescribed anticoagulation medication which was expected to be long term, although there was medical evidence that it was prescribed at a subtherapeutic level. There was further evidence that the injuries could have arisen from non-work related factors including obesity, heredity and smoking.
The plaintiff filed a workers compensation claim which was rejected: Wingfield v Hill Bros Transp’n Inc (Neb. Workers’ Comp. Crt, Hoffert J, date not known, unreported). The plaintff appealed.
Held: per curiam, dismissing the appeal –
1. It was appropriate in cases of DVT and pulmonary embolism to use the same test for causation as is used in heart attack cases. That is, requiring both legal causation and medical causation.
2. The test for legal causation where there is a pre-existing condition is whether the exertion or stress experienced by the claimant in employment is greater than that experienced in the ordinary non-employment life of the employee or any other person. Medical causation would be established when a preponderance of the evidence showed that employment contributed in a material and substantial degree to the injury.
Zessin v Shanahan Mechanical and Electrical, 251 Neb. 651, 558 NW. 2d 564 (1997), followed.
3. In non-cardiac cases, a plaintiff with a pre0existing condition must establish that the injury was caused by employment and not simply the progression of the pre-existing injury.
Swanson v Park Place Automotive, 267 Neb. 133, 672 NW. 2d 405 (2003), considered.
The Court’s judgment is available here.