30 N.W.2d 891 | Neb. | 1948
This is an appeal from a judgment of the district
The defendant filed a special appearance objecting to the jurisdiction of the district court over the subject matter for the reason that no lawful, proper, or sufficient petition was filed by the plaintiff in the district court within 14 days after the order of dismissal made by the Workmen’s Compensation Court.
The defendant argues that plaintiff’s petition in the instant case failed to have attached to it the pleadings and orders of the Workmen’s Compensation Court as required by law, citing Hansen v. Paxton & Vierling Iron Works, 135 Neb. 867, 284 N. W. 352, to the effect that the petition on appeal in the cited case, from the compensation court, included a copy of the pleadings before the Workmen’s Compensation Court, setting forth the issues, and also the order of dismissal of the Workmen’s Compensation Court.
In the instant case the petition was amended by interlineation to include the petition, answer and order
In the cited case, followed by Bell v. Denton, 136 Neb. 23, 284 N. W. 751, there was no specific requirement that the pleadings, orders and findings of the Workmen’s Compensation Court be attached to the petition on appeal. Section 48-181, R. S. Supp., 1945, which provides for direct appeal when rehearing is waived before the Nebraska Workmen’s Compensation Court to the district court, makes no such requirement that such pleadings, orders or findings be attached to the petition on appeal to perfect such appeal where the petition sets out the errors of the compensation court and alleges that rehearing was waived and notice of appeal given in due time.
The trial court did not err in overruling the special appearance.
After trial de novo in the district court, the court decreed that on October 10, 1944, the plaintiff, while in the employ of the defendant, earning wages in excess of $40 per week, received personal injuries caused by an accident arising out of and in the course of his employment; that as a result of the’accidental injuries plaintiff was temporarily, totally disabled from October 10, 1944, to November 22, 1944, and had been paid all compensation due- him from the defendant for said period of time; that the plaintiff, as a result of the accidental injuries, “has been totally and permanently disabled from the 22nd day of May, 1945, until the present time, and will be totally and permanently disabled for the remainder of his life and is entitled to receive the sum of $15.00 per week from the defendant beginning May 22nd, 1945, for a period of 300 weeks from said date and thereafter the sum of $12.00 per week for the remainder of his life, as and for total permanent disability”; and, further, that defendant pay to Dr. Willard H. Quigley the sum of $200 and to Dr. Fred J. Schwertley the sum of $25, and pay to plaintiff the
Upon the overruling of a motion for new trial, the defendant appeals.
For convenience, the appellant will be referred to as the defendant and the appellee as the plaintiff.
The defendant contends that the plaintiff has failed to prove by a preponderance of the evidence that he has an ailment caused by accidental injury sustained in the course of and out of his employment.
It appears from the record that the plaintiff, 36 years of age, was employed by the defendant intermittently from 1933 to 1936, and more steadily from 1939 until about May 27, 1945. He worked as a bacon slicer, using a machine to do the slicing. The bacon was kept in a cooler about 15 feet distant from where he worked. On October 10, 1944, at approximately 2:45 in the afternoon, he was going to the cooler to get some more bacon to slice. He opened the cooler door, which was five or six inches thick and weighing between 250 and 300 pounds, by pulling the door toward him. At the same time his immediate supervisor opened a door in close proximity to the cooler door, and pushed it, the result being that the plaintiff was caught between the two doors, the cooler door striking him in the chest and the other door in the back, placing the plaintiff in what has been called a “squeezing” position. He received injuries to his back, causing severe pain. About 3:30 p.m. he went to see the nurse employed by the defendant. She told him to return the next morning. He was then sent to Dr. Hansen who applied heat treatments, and then to Dr. Hill who gave no treatments but took some X-ray pictures. The casualty representative of the defendant then sent him to Dr. Johnson, where he received some heat treatments. The doctor later taped his back and then subsequently removed the tape and applied more heat treatments.
The plaintiff received compensation for a period of
It further appears from the record that the plaintiff was injured in an automobile accident about December 22, 1941. As a result of such injuries, he filed a petition for damages in the district court. This petition was introduced in evidence by the defendant. It alleged in part, in substance, that the plaintiff received a severe sprain of the sacroiliac joint and of the lumbosacral joint, causing permanent disability which could not be determined at that time. This case has not been tried. On October 11, 1944, the plaintiff signed a statement wherein he said, in part, that about two and a half years previously he suffered a back injury in an automobile accident for which he took treatments, the last one being four or five months previous to the present accident, and that the X-rays showed nothing except strains at that time.
Plaintiff further testified that when he returned to work he received 73% cents per hour, which constituted
The plaintiff’s wife testified, in substance, with reference to the automobile accident in which the plaintiff was involved in December 1941, that he complained of pain and she would massage him in the evening, and did so for about five or six months; thereafter he did not complain of pain very much; and that he did wear an elastic belt for awhile. She testified that after the accident in October 1944, the plaintiff complained of severe pain, and would walk stiffly back and forth through the rooms; that he was unable to sit down for long periods of time, and felt better walking; that he did very little around the house; that he slept badly at night and it was hard for him to get out of bed; and that he sat more on the edge of a chair with his legs stretched out, to enable him to have comfort.
Since the plaintiff quit the employment of the defendant, he has been assisting some relatives, keeping books, cashing checks, and occasionally serving drinks in a bar, for which he receives $25 per week. He works three or four hours a day, at different times of the day, when he feels like it, and the relative testified that the employment and the pay therefor is a donation, for the benefit of his family. There is also evidence that previous to his employment with the defendant, he, at times, tended bar for other persons.
Dr. Willard H. Quigley, the family doctor, testified that he had known the plaintiff for years, and that he suffered an injury to his sacroiliac joint from an automobile accident in 1941. With reference to the accident which occurred on October 10, 1944, the doctor testified he examined the plaintiff May 26, 1945. He took into consideration the history of the case, the details of the accident, and the medical treatment of doctors
On cross-examination this doctor testified that the plaintiff had influenza and a streptococcic throat, which were infectious; that he presumed he remembered when the plaintiff slipped at home and wrenched his back on May 23, 1943; that he filled out a report on October 16, 1943, for the plaintiff on account of a sprained lower back, cold, and complications such as influenza, pain in the joints and back; that plaintiff was laid off from October 16 to November 1, 1943; that the plaintiff wore a belt prescribed by the doctor after the automobile accident, and that the doctor- mentioned a sprained lower back as constituting his diagnosis on October 16, 1943; that on February 22, 1944, the doctor made a diagnosis of a streptococcic infection in the plaintiff’s
Dr. F. J. Schwertly testified for the plaintiff that he examined him on or about July 23, 1945, and found tenderness in his back and pain on motion. He related the history of the accident, and testified that the plaintiff had been wearing a brace which he felt was too loose and if the plaintiff was immobilized by a snug-fitting cast it would give him relief from constant pain, so they applied a snug-fitting cast and gave him penicillin. He further testified that the X-ray showed a narrowing between the ninth and tenth dorsal vertebrae and at the bottom of the eleventh, caused by trauma connected with the accident of October 10, 1944. The doctor gave his opinion that the plaintiff was 100 percent disabled from performing the duties of his former occupation.
Dr. George M. Hansen testified for the defendant, that he examined the plaintiff October 11, 1944, and found no indication of ecchymosis or bruising or swelling to either the chest or the back.
Dr. Herman F. Johnson testified that on October 23, 1944, he examined the plaintiff and at that time there was no evidence of bruises, swelling or ecchymosis; and that there was no evidence of fracture or dislocation. He, the plaintiff, had a congenital abnormality of the lumbar spine and claimed a low back pain, but there was no positive evidence of trauma. A brace to give support to the lower back was recommended. The doctor was informed of the history of the automobile
On cross-examination this doctor testified he prescribed a low back brace and recommended a plaster cast at one time, but there is no record that this was applied; and that the plaintiff was totally disabled at the time. On May 9, 1945, the plaintiff was still complaining, and the doctor recommended discontinuing the physiotherapy, heat, and massage. There was evidence of arthritis in the upper lumbar spine. From an exhibit, the doctor testified that the condition as described by him showed a congenital abnormality in the lumbosacral spine, and some lipping or growth of new bone along the margins of the first lumbar. The doctor further testified that certain types of trauma localize arthritis, but not the type the plaintiff had, because this was more a compression of his trunk, a squeezing, rather than an actual injury to the spine, which in that region is pretty well protected from a squeezing injury or a compression type injury; and that the condition would not be aggravated or localized by trauma, but would be more apt to be aggravated by a twisting type of injury, or pulling type of injury.
This doctor testified that from the description of the compression injury received from the plaintiff, appar
In examining an exhibit upon which a mark was placed identifying the plaintiffs complaint of pain which was between the eleventh and twelfth dorsal vertebrae, the doctor said there was productive change or overgrowth of bone, and some narrowing of the space between the eleventh and twelfth dorsal vertebrae; that it was a part of this arthritic change which had produced some narrowing and degeneration of the disc between the two vertebrae; that there was no destruction of the bone between the eleventh and twelfth dorsal vertebrae; and there were productive changes along the margins.
Dr. J. E. Courtney testified for the defendant that after getting the plaintiff’s history and examining the X-rays, he concluded that the plaintiff was not suffering from a compression injury occurring October 10, 1944; that plaintiff could work as a bartender without difficulty, and as a cashier, but would have distress with his back at the end of the day because of his congenital conformation; he detected no evidence of any serious injury, of a compression injury between the chest and the back; that the plaintiff could do average lifting; that there is an absence of any definite findings of bone injury; that the accident itself entailed a squeezing in an upright position, whereas spinal injuries come from a twisting or sudden bending, not from a compression; apd the finding of the congenital abnormality, as outlined, led to the conclusion that the present backache-and the present disability were due to that condition. The trauma in the chest squeezing incident had no part in producing plaintiff’s present physical condition as to his back or chest. This doctor concluded that the. congenital condition was
On cross-examination this doctor was asked to explain the fact that the plaintiff worked at heavy work from 1939 to 1944, steadily, except for short periods of illness due to colds or influenza or something like that, and then apparently could not work for a period of seven weeks immediately following the accident. His answer was: “Then it would be only logical to conclude that it was due to his back being sore and painful from his accident.” He was then asked, “And if he was then partly disabled following that, and went back to work and did light work, would your conclusion still be the same, that it was due to the accident?” The answer was “Yes, sir.”
We have set forth in considerable detail the testimony of the medical experts which is in direct conflict and, as far as the record stands at this time, such opposing medical experts have testified on the one hand that the plaintiff is totally disabled from the accident involved, and will continue so indefinitely; on the other, that he has absolutely no existing disability from the accident.
It is apparent from the record that on October 10, 1944, the plaintiff suffered an injury due to an accident arising out of and in the course of his employment. We are here concerned with the degree of disability suffered, and its extent.
According to the defendant’s medical experts, the injuries about which the plaintiff complains could not have occurred by virtue of the accident of October 10, 1944, for the reason that the accident entailed a “squeezing” when the plaintiff was in an upright position, and spinal injuries of the nature and kind about which the plaintiff complains come from a twisting or sudden bending of the body, and not from a compression; and. that the congenital abnormality existing in the plaintiff’s back is the cause of the present disability. While the evidence
It appears from the evidence that the plaintiff at various times had infectious diseases and had suffered injury from a prior accident; also that he had an arthritic condition to his spinal column prior to the occurrence of the accident of October 10, 1944, which created no noticeable impairment of the strength or use of his back during the course of his employment. After the accident and injury complained of, an impairment commenced, and the injuries received were ample cause of the same, irrespective of the preexisting arthritic condition. The disability of the plaintiff at least amounts to a traumatic arthritis which, under the facts in this case, must be deemed to have arisen out of and in the course of the employment of the plaintiff, and therefore is compensable.
The following authorities are applicable in principle to the case at bar.
“In making a case for compensation under the workmen’s compensation law, more than a preponderance of evidence is not required.” Chatt v. Massman Construction Co., 138 Neb. 288, 293 N. W. 105.
“To sustain an award in a workmen’s compensation case, it is sufficient to show that an injury, resulting from an accident arising out of and in the course of the employment, and preexisting disease combined to produce disability.” Yakal v. Henkle & Joyce Hardware Co., 145 Neb. 365, 16 N. W. 2d 531. See, also, Gilcrest Lumber Co. v. Rengler, 109 Neb. 246, 190 N. W. 578; Skelly Oil Co. v. Gaugenbaugh, 119 Neb. 698, 230 N. W. 688; Chatt v. Massman Construction Co., supra; City of Omaha v. Casaubon, 138 Neb. 608, 294 N. W. 389; Palmer v. Sample,
It is obvious that the evidence in the instant case is irreconcilable and in direct conflict. This being true, this court will consider the trial court’s observation of the witnesses and their manner of testifying, and also that the trial court must have accepted one version rather than the opposite. See Peterson v. Winkelmann, 114 Neb. 714, 209 N. W. 499; Graham Ice Cream Co. v. Petros, 127 Neb. 172, 254 N. W. 869.
The defendant predicates error on the ground that no proper or sufficient foundation was laid as to the services, or reasonable value of the services, of Dr. Willard H. Quigley, Dr. James Kelly, or the hospital and medical services. Dr. Quigley gave his opinion as to the reasonable value of such services. He was familiar with the services, as he rendered services himself, and the hospital items were under his direction. He also knew about the charge made by Dr. Kelly, as being reasonable.
Persons engaged in performing services of the character performed by the plaintiff’s physician and who have knowledge of the business in and for which the services have been rendered, and of their value, may give their opinion as to the value of the services. See 32 C. J. S., Evidence, § 545, p. 320; 20 Am. Jur., Evidence, § 901, p. 757; In re Estate of Baker, 144 Neb. 797, 14 N. W. 2d 585.
The defendant contends that if there is any liability in this case the basis of allowance would be as determined in Micek v. Omaha Steel Works, 136 Neb. 843, 287 N. W. 645, that is, on a basis of payment of compensation for partial disability in the amount of 66% percent of the difference between the basic wages received at the time of the alleged injury of $29.40 per week, and the basic wages and earning power of the plaintiff there
There were two questions determined in the Micek case, supra: First, was Micek partially or totally disabled? Second, what rate of compensation should he receive? On the first question it was determined that Micek was not totally disabled, and in reaching that conclusion his then ability to earn in another field of employment was considered. Here, there has been a final determination that the plaintiff was totally and permanently disabled, and there is no evidence to show that he is able to get, hold, or do any substantial amount of remunerative work either in his previous occupation or in any other established field of employment for which he is fitted. Until such facts are established or shown by competent evidence, the Micek case does not apply. See Yakal v. Henkle & Joyce Hardware Co., supra.
The fact that the plaintiff has been doing light work does not bar him from recovering compensation. In Elliott v. Gooch Feed Mill Co., on rehearing, 147 Neb. 612, 24 N. W. 2d 561, this court held: “An employee may bé totally disabled for all practical purposes and yet be able to obtain trivial occasional employment under rare conditions at small remuneration. The claimant’s status in such respect remains unaffected thereby unless the claimant is able to get, hold, or do any substantial amount of remunerative work either in his previous occupation or any other established field of employment for which he is fitted.”
Section 48-125,'R. S. 1943, provides, in substance, that in the event an employer appeals an award from the district court, which is in favor of an employee, to the Supreme Court and fails to obtain any reduction in the amount of such award, the Supreme Court may allow the employee a reasonable sum for attorney’s fees for proceedings in such court. We fix the attorney’s fees in the sum of $250 for services rendered by plaintiff’s attorneys in this court.
Other errors raised by the defendant are without merit. The decree of the district court is affirmed as modified.
Affirmed as modified.