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Jurgens v. JBS Swift & Co.

Court of Appeals of Nebraska

September 6, 2016

David M. Jurgens, appellant,
v.
JBS Swift & Co., appellee.

         NOT DESIGNATED FOR PERMANENT PUBLICATION

         Appeal from the Workers' Compensation Court, Thomas E. Stine, Judge.

          Daniel J. Thayer, of Thayer & Thayer, P.C., L.L.O., for appellant.

          Dallas D. Jones and Michael D. Sands, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

          Moore, Chief Judge, and Irwin and Pirtle, Judges.

          MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

          Pirtle, Judge.

         INTRODUCTION

         David M. Jurgens appeals from an order of the Nebraska Workers' Compensation Court finding that he failed to meet his burden of proof to establish that he sustained bilateral carpal tunnel injuries in an accident arising out of and the in the course of his employment with JBS Swift & Co. (JBS Swift), and dismissing his petition. Based on the reasons that follow, we affirm.

         BACKGROUND

         On July 17, 2014, Jurgens filed a petition in the Nebraska Workers' Compensation Court against JBS Swift alleging that on May 22, 2013, he sustained a right shoulder injury, and that on November 27, 2013, he sustained bilateral carpal tunnel injuries to his hands. The petition alleged both injuries were caused by accidents arising out of and in the course of his employment with JBS Swift for which he was entitled to compensation.

         Trial on Jurgens' petition was held on October 22, 2015. At the beginning of trial, the parties stipulated that Jurgens had suffered an injury to his right shoulder for which all compensation had been paid and that the right shoulder claim was withdrawn. Accordingly, Jurgens' right shoulder injury is not at issue in this appeal.

         The evidence at trial showed that Jurgens started working for JBS Swift in 2009. After three months of cleaning floors, Jurgens transferred to the job of cooler operator. Jurgens testified that his job involves checking the grade of halved cattle carcasses that are hanging on hooks and attached to an overhead moving rail. He manually operates the conveyor rail by pushing buttons to keep it moving and ensuring the carcasses do not pile up. If a carcass is not the right grade, he has to stop the rail and turn a switch for a "kickout rail" to remove the carcass. He then turns the switch back over and starts the rail again. He testified that sometimes he has to push or pull the carcasses to keep the rail moving. Jurgens testified that he deals with about 5, 000 halved carcasses per day, each weighing between 900 and 1, 000 pounds. He testified that he spends about 60 percent of his day pushing and pulling cattle to keep them moving along the line, and spends 30 percent of his day turning the carcasses to determine their grade. Jurgens testified that he spends 10 to 15 percent of his day operating the buttons that run the moving rail. When he uses the buttons, he grasps them in either his left or right hand and twists them from left to right. He also testified that sometimes he has to press the buttons for three to five minutes at a time.

         On October 11, 2013, Jurgens reported to JBS Swift that he incurred an injury while working, specifically an injury to his wrist and thumb and that he had popping and cracking and/or numbness in his fingers. He listed the date of injury as June 11, 2013.

         On December 11, 2013, Jurgens sought treatment at JBS Swift's in-house infirmary for a bilateral injury to his hands, specifically pain in his thumb and first two fingers on the right and left hand. Jurgens claimed that the onset of the same was ...


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