*1 charge. burglary on the was sentenced violation and stages proceed- by represented at all counsel was ings. perfected appeal his matter while own being by error Writ of considered counsel. transcript court and the and bill issued this exceptions are before us. pend- appeal defendant, for the while
Counsel ing, as coun- leave of the trial court withdraw asked supra. complied The California, Anders v. sel and with appeal that an be frivolous and court found would trial permitted counsel to withdraw. a care-
Our consideration motion exceptions transcript bill ful review of pro in the se brief. We defendant’s the claims made on the The defendant’s reviewed the merits. have case foundation. claims are without
Judgment affirmed. appellant cross-appellee, Shotwell, Gordon appellees Inc., al., et Builders, Industrial cross-appellants.
190 W. N.
Filed October 1971. No. 37935. Wright, appellant. Hancock & Simmons, Hall, for Ferguson ap- & Nichols L. M. Atkins, Hahn, pellees.
Heard before White, Boslaugh, Smith, J'., Seencer, C.
McCown, Newton, JJ. Clinton, J.
Newton, action, *2 This is an instituted before the Nebraska Work- men’s-Compensation hearing On Court. before the full compensation court, received an award based upon temporary total weeks, for 149 4/7 47% percent permanent partial disability weeks, for 150 2/7 percent permanent partial disability for the 17% upon rest of his life based a two-member upon appeal The award was affirmed the to district subject court. affirm We the award to modification as specified. herein plain-
The accident on occurred March 7, while surveyor’s tiff was as a rodman defend- receiving per dispute ant, week. There no is $94.05 employment, with reference to the accident, or injuries years nature of the Plaintiff received.
age, recently graduated high had been from school, and welding. had a short taken course in He had no fixed occupation, occasionally painted automobiles.
worked for defendant as rodman, common laborer, heavy equipment operator, tier, steel and welder. injuries right
His consisted of a fractured ulna at multiple right elbow, foot, fractures of a com- pression possible fracture of the fifth lumbar vertebra, the first and vertebrae, fractures of second lumbar right gradually hearing wrist. fractured lost subjected persistent in one ear; to occasional but persistent pain, headaches; had back low a left foot drop, atrophy leg, clawing numbness and of the left right foot, left deformed the toes foot with a difficulty urinating, bony protuberance, troubles, bowel spine, restriction of curvature back motion and degree a 10 back, restriction of weakness movement right Physical wrist, in impairment nervousness, and shakiness. percent right
was estimated at 10 for the ,20 leg, percent percent foot, the left and 35 body for the conditions mentioned still as a whole. The prevailed years more than 4 physical impairment after the accident and esti- upon plain- mates of based were tiff’s condition at that time. plaintiff’s undisputed de-
It condition is passage ex- teriorate pert put time. As one medical with the orthopedist it, he will need services an urologist entirely pos- It for the rest his life. is totally may may so, If he sible that he become disabled. R. can- 48-141, relief under section R. S. 1943. We seek agree plaintiff’s he contention that not at this time with recuperating presently After from employment Oregon. injuries, in his unable find Portland, There moved home area and wiring employment electric but was trans- painting job as he could not endure the to a ferred bending in the electrical over work. Due paint he can act fumes, no effects from adverse *3 business, employer painter. went of and His out aas job a did re- as welder which not he obtained another bending quire still so over. was at handicaps, physical Due to his: trial. time of an less than others paid hour same 50 cents $1 part-time selling works tickets at a He also work. permits position him It is nightclub, which to sit. a youth apparent and determination, due to his that himself, rehabilitated measure some has in employability severely has been that his remains fact heavy labor, do common can no restricted. types heavy equipment, operate rodman, act as a do' of walking, lifting, bending. requiring or In other labor handicapped tight a market, he, worker, as labor than employment secure should he it difficult find position. present his lose important only bodily function are insofar in
Losses earning capacity and the loss thereof. they relate as 204, 174 Neb. 116 W. Erickson, N. 2d 275. Nordahl See plaintiff It earn- is evident that still retains measure ing capacity cannot at this one and time be classified as permanently the other hand, On impairment bodily necessarily the extent of his not synonymous employability with or determinative of his earning capacity. Disability in is defined terms of and) employability earning capacity rather than in terms bodily loss function. See Nordahl v. Erickson, supra. supports finding plaintiff The record that disability amounting sustained a two-member to a 25 percent impairment leg percent left and a 10' im- pairment right averaged foot. The lower courts plaintiff permanent out this partial that concluded had a percent, disability entitling him to $7.41 17% per during week, after first 300 weeks, his life. physical impairment It disability was found employability earning capacity the sense of loss of this, agree. were pointed previously the same. With we As: types employment out, plaintiff for which originally greatly have fitted been restricted injury present physical condition. (2) Supp., Under subdivision of section 48-121, R. S. plaintiff 1965, allowed the sum of each week $29.78 percent permanent for partial weeks for a 150 2/7 47% body as whole. It is evident that in n considering feature this of the case, the trial court failed to take into consideration bodily several of the by plaintiff. partial ailments suffered disability We find that this percent amounted to 65 and that receive the sum of should each week for the $40.74 period. week 2/7 provides: R. 48-120, R. S. Section em- “The ployer be liable shall reasonable medical and hos- *4 * * * pital as services and medicines and when needed, ** subject approval compensation to the court, undisputed require evidence indicates The hospital medical medicines, services in the injuries. result of his If future as such a when required, they subject approval are items the to- shall, compensation supplied ex- be at defendants’ court, pense. State, See Gilmore v. Neb. 20 N. W. 918. foregoing judgment
Subject to modifications, of the district is court affirmed. modified.
Affirmed as J., Spencer, dissenting. party respectfully a I I cannot be a to decision dissent. penalizes effort to be determination and extreme which despite self-supporting physical set out perma- infirmities majority opinion, to me constitute which present day age, em- In most nent ployees
sustaining plaintiff’s not would disabilities any type clearly attempt and would be to do work repeatedly dees not held that total We have helplessness means but rather it state absolute amean wages employee earn in the the disablement of the to of or for which he was trained. similar work same kind partial injury plaintiff, para- a of his the time At perform spe- plegic, at and able to a had worked pin striping; heavy labor; cialty to do common called carpenter’s worker; a work as to helper; steel as a steel tie equipment; operate heavy rodman; act to as walking, lifting, requiring any type labor do opinion majority bending. he no states:, As the can or injury any tasks. Since his he of these has do n tried wiring physically painting but electrical requires. perform the tasks that work At the unable spot as welder of trial time physical handicaps boxes, to his but due breaker switch paid the same work. He is than- others less only lifting any nature, and is able to to do unable perform brought to him. While cannot work weld job, probably in his because tasks several present be useful citizen his desire intense of his employer problems him, these out worked *5 325 employers unemployable. most would consider him earning solely capacity Plaintiff retains a measure of because of his determination to overcome extreme dis- Clearly, plaintiff abilities. sustained earn- loss ing capacity equivalent greater to or than sus- by Gering tained in the claimant Haler v. Bean 163 Co., Neb. 81 748, 152; N. W. Nordahl Erickson, v. 174 Valley Neb. 116 N. W. 2d 204, 275; Mead Missouri v. Grain, Inc., 178 553, 243; Neb. 134 N. W. 2d and Brock- haus E. Ball v. L. Construction Neb. Co., 737, permanent 341, N. W. 2d where we total purposes For all intents and he is disabled. The opinion majority certainly pur- thwarts the beneficent poses Workmien’sCompensation of the Nebraska Act highly interpretation. technical refinement of J., J., join
White, C. and McCown, this dissent. George Nebraska, appellee, Hayes, State appellant.
190 N. W. 2d
Filed October 1971. No. 37803. Kenyon, appellant. Carey D. and Arnold Thomas D. for Meyer, Attorney A. H. General, Clarence Calvin appellee. E. Robinson,