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Picard v. Pinkerton Security and Investigation Services6/28/2005
(Not Designated for Permanent Publication)
Irwin, Carlson, and Moore, Judges.
INTRODUCTION
Charles Picard filed a petition in the Nebraska Workers' Compensation Court alleging that he was injured in an accident arising out of and in the course of his employment with Pinkerton Security and Investigation Services (Pinkerton). The trial court dismissed Picard's petition, finding that Picard had not proved that he had suffered an injury as required by the Nebraska Workers' Compensation Act. Picard appealed, and both the three-judge review panel of the compensation court and this court upheld the decision of the trial court. See Picard v. Pinkerton Sec. & Investigation Servs., No. A-02-927, 2003 WL 1906380 (Neb. App. Apr. 22, 2003) (not designated for permanent publication) (Picard I). Picard then filed a second petition in the compensation court alleging that he had sustained disability from an occupational disease arising out of and in the course of his employment with Pinkerton. The trial court granted Pinkerton's motion for summary judgment, finding that Picard was still required to prove injury and that his claim was barred by the doctrines of res judicata or collateral estoppel. Picard appealed to the review panel, which entered an order of affirmance on review. Picard appeals to this court the decision of the review panel. For the reasons set forth herein, we affirm.
BACKGROUND
In Picard's first petition, he alleged that he was injured in an accident on February 13, 2000, arising out of and in the course of his employment with Pinkerton. Picard alleged that he was a victim of a violent robbery on that date while in the course and scope of his employment as a security guard. Picard alleged that during the robbery, a gun was shoved deep into his back and into his neck, he was thrown into a corner, and he was hit in the back of his neck and spine. Picard further alleged that as a direct and proximate result of this incident, he sustained serious, painful, and permanent injuries, both physical and mental, such mental injuries including posttraumatic stress disorder (PTSD).
Trial was held on November 6, 2001. We outlined the evidence adduced at trial in our decision in Picard I and do not repeat that summary here. The trial court entered an order of dismissal on December 5, 2001. The court stated that to prove injury, Picard needed to show that he had sustained violence to the physical structure of his body, citing Sorensen v. City of Omaha, 230 Neb. 286, 430 N.W.2d 696 (1988). The court reviewed the evidence and found that Picard did not have a gun pressed into his neck or back, that he was not thrown through the air, that he was not struck in the neck or lower back, and that his glasses were not broken during the course of the robbery. Because the court was not persuaded that Picard suffered any violence to the physical structure of his body, the court concluded that any injuries suffered by Picard due to any mental stimulus were not compensable. The review panel entered an order of affirmance on review, and Picard appealed to this court.
On appeal, Picard asserted that even if the February 13, 2000, incident did not meet the statutory definition of accident, his PTSD was compensable as an occupational disease. We did not consider Picard's assertions regarding the compensability of his PTSD as an occupational disease because Picard did not assign this error to the review panel for consideration. Picard also asserted that the compensation court erred in applying certain case law with regard to his claims and in finding that he failed to prove that he sustained an accident during the course and scope of his employment.
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