3 N.W.2d 201 | Neb. | 1942
This is an appeal in a workmen’s compensation proceeding to secure a modification of a previous award made and entered in the Nebraska workmen’s compensation court on September 19, 1938, in a case wherein Joseph F. Kucera
From this award made and entered in the district court, plaintiff Kucera appeals, and defendant village files a cross-appeal.
Thus, we have here presented under section 48-142, Comp. St. 1929, and determined in this proceeding in the district court: (1) An application by the defendant for modification of award because of alleged decrease of incapacity; (2) issues joined thereon by claimant, and also an application in the latter’s behalf for a modification of award because of increase of his incapacity.
The determination made by the district court is challenged by appellant on the grounds: (1) That the district court erred in finding that the plaintiff is only partially disabled; (2) the trial court erred in not assessing the waiting time period penalty of 50 per cent., amounting to $362.50.
Such determination is also challeged by defendant, appellee, on the ground that the district court erred in requiring the payment of $15 a week for the remainder of the 300 weeks from the date of the injury.
In the light of the entire record presented on this appeal, we find the controlling principle to be: “Where any finding of fact, upon which the award of the district court in a workmen’s compensation case depends, is not conclusively supported by the evidence, it is our duty on appeal to con
In the instant case both parties participate in this proceeding as petitioners for modification of the award as finally made by the district court. It follows that to the extent of this modification sought each is clearly within the terms of the rule: “Upon an application to modify an award under the workmen’s compensation statutes, the burden of proof rests upon the petitioner to establish by a preponderance of the evidence that the disability has increased, decreased or terminated as alleged.” Metropolitan Dining Room v. Jensen, 126 Neb. 765, 254 N. W. 405.
In the application of the foregoing rule, in Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N. W. 764, this court announced the conclusion: “Before recovery may be had for an increase of incapacity due solely to the injury, within the meaning of subdivision (b) sec. 48-142, Comp. St. 1929, as amended, the plaintiff must prove by a preponderance of the evidence that there now exists a material and substantial change for the worse in plaintiff’s condition, a change in circumstances that justifies a modification, distinct and different from that for which an adjudication has been previously made.”
Turning now to the evidence to be considered in the light of the doctrines of the foregoing cases, it is obvious that the occurrence of the serious accident which constitutes the source of plaintiff’s claim cannot be questioned. It was determined originally by the Nebraska workmen’s compensation court in an opinion unappealed from. From the evidence it appears that such accident included the fracture of the bones of plaintiff’s neck and the subsequent ankylosing of the two vertebrae affected by the injury. Thus, the actual occurrence of the injuries involved is established objectively and beyond a reasonable doubt, but when we proceed to the question of the natural effect of these injuries so suffered and arising out of and in the course of his employment, we enter the field of sharply conflicting evidence. It would add nothing to the value of this opinion
It is therefore ordered that the judgment of the district court for Saunders county entered on the 25th day of September, 1941, in this cause, and the order and judgment entered by the Nebraska workmen’s compensation court on the 30th day of April, 1941, each be in all respects canceled, reversed, and set aside; further, that the award made and entered by the Nebraska workmen’s compensation court on the 19th day of September, 1938, be reinstated, approved, and affirmed, and that plaintiff be entitled to have and recover the compensation therein provided. The costs of this action are to be taxed to the Village of Prague.
Reversed.