31 N.W.2d 315 | Neb. | 1948
Plaintiff secured an award of permanent total disability as a result of a hearing before one judge of the Workmen’s Compensation Court. A like award was rendered as a result of a rehearing before the Workmen’s Compensation Court. A like award was entered in the district court as a result of a hearing under the provisions of section 48-184, R. S. 1943. Defendants appeal. We affirm the judgment of the trial court.
Defendants’ first two assignments of error here are: (1) “The Court erred in refusing to set aside the findings of fact and award made by the Workmen’s Compensation Court, which findings of fact are not conclusively supported by the evidence in the Record”; (2) “The Court erred in affirming the award of the Workmen’s Compensation Court, allowing the plaintiff full compensation for permanent total disability.”
Both parties treat these assignments as • sufficient to require a review here under the provisions of section 48-185, R. S. 1943, that a judgment of the district court may be modified or set aside only upon the ground that “the findings of fact are not conclusively supported by the evidence as disclosed by the record, and if so found, the cause shall be considered de novo upon the record.”
Defendants ask for trial de novo. Plaintiff submits that the award is conclusively supported by the record, and in any event the award should be affirmed upon trial de novo. This procedure calls for us to review the evidence. If upon that review we find the award is conclusively supported by the evidence, that ends the matter. If, however, as a result of a review of the evidence on a trial de novo we find that the award should be sustained, it is not necessary to determine the question as to whether the award is “conclusively supported
The accident occurred on April 16, 1945. Plaintiff at the time of the accident was 69 years of age, a large man, in good health, and able to do the heavy manual labor involved in concrete or cement work. No illnesses or disabilities are- shown, save as to one finger, which is not involved here. Plaintiff was a cement mason, working on a repair job to a concrete wall. He was standing on a scaffold suspended six to nine feet above the surface beneath him. The ground below was covered with coal used in a heating plant. Apparently it sloped from the wall to the ground. The scaffolding broke and plaintiff fell. He testified that he hit the ground in a sitting position. Plaintiff remained in the position in which he fell for a few minutes, was helped up later by fellow employees, and immediately complained of pain in his lower back. He mentioned no other pain. He was taken to the hospital. At the hospital the diagnosis was fractures of the second and third lumbar vertebrae. The doctor making the X-ray on April 17 found “a definite compression fracture of 1st and probably some damage of the intervertebral disc between the 2nd & the 3rd lumbar vertebrae.”
On April 23, 1945, plaintiff was placed in a cast from legs to neck, not including arms. The diagnosis then was a “Compression fracture, slight, first lumbar; slight compression - posterior margin, second lumbar at disc region.” Plaintiff remained in this or another cast for
We now go to the evidence as to shoulder, arm, and hand injury. Plaintiff testified that after the fall he was lying on his right elbow when he first knew what happened. A fellow workman, testifying for defendants, tried to reconstruct the accident. He testified that in the fall plaintiff could not have come in contact with the plank on which he was standing, but “could have hit the wall with his shoulder”; that his right shoulder was bruised; and that after hitting the coal in his fall, he slid on the coal for some feet. The hospital records show at time of admission “No External Evidence of Injury.” Plaintiff testified that after he was in the hospital he had bruised spots on his right shoulder. A physician examined plaintiff in October 1945, before any controversy had arisen with reference to compensation. Plaintiff’s complaint was “Pain in arms.” The physician recites a history given him at that time containing the following: “During the cast application he lay on his face, his chin resting on the table and slipped off at one time. Pain then radiated from his neck over his shoulders and down both arms to his little and ring fingers, with numbness and weakness developing later.” The same history recites that plaintiff’s “neck started hurting him after the cast was put on, about one week after the injury, not noted before.” Defendants in their reply brief state that plaintiff gave that history to the doctor. The attending doctor does not remember anything unusual happening although there might have been a slight slipping. The cast was put on seven days after the accident.
The bedside charts show that plaintiff was in con
It is apparent that the attending doctors considered that the shoulder pains were caused by the cast and that they would disappear when the cast was removed. Plaintiff was discharged from the hospital on June 16. The cast was removed shortly thereafter. The condition of the shoulders, arms, and hands continued and became worse. The first X-rays of the neck and shoulder area were taken in August. The experts seem to agree that such an examination might not reveal evidence of an injury such as plaintiff claims here. Defendants’ physicians were unable to relieve or correct it.
At the time of the trial the plaintiff’s hands had a contractual deformity and loss of grip, save for the index finger and thumb. There was a general muscular waste in the arms, some loss of pain sensation in the arms and hands, a loss of arm and shoulder movements, and pain in arms and neck region. The expert witness who made this examination testified that in his opinion it was the result of a cervical spine injury caused by the accident. There also is some leg involvement of later appearance, which plaintiff’s expert witness connected with the accident.
Defendants’ attending physician testified that he had
Defendants’ expert witness, who had placed plaintiff in the cast and conducted some of the examinations thereafter, testified that he could not connect a cervical spine injury with the compression fractures in the lower back. On cross-examination he said that to cause such an injury to the cervical region, there would have to be a “fairly severe” injury to the lumbar spine; that to connect the two he would expect symptoms in the neck to appear within a week, such as pain in the neck region, with numbness and tingling in his fingers, followed by weakness in his hands and arms, and loss of nerve sensation; that he had no information of neck pain early in this case; and that with such information it might make a difference in his diagnosis. His final testimony was that the injury in the lumbar region was not severe enough to cause an injury in the neck region.
We find in the record no suggestion of the cause of this injury, save the accident involved.
Without further discussing the evidence, it is our conclusion on trial de novo that the facts and circumstances, and the inferences properly to be drawn therefrom, all point directly' to the conclusion that plaintiff’s disabilities and injuries were caused by the accident he suffered. We so find. The findings and judgment of the compensation court and the district court are in accord with the record and are supported by ample proof. We find no reason to modify or set aside the judgment of permanent and total disability resulting from the accident.
The defendants’ next assignment of error is that in any event the trial court erred in awarding compensation for the year 1946, during which calendar year the plaintiff was gainfully employed. It appears that from January 1, 1946, to January 1, 1947, plaintiff was busi
An attorney’s fee was not allowed in the compensation court. An attorney’s fee of $200 was allowed in the district court. Defendants assign the allowance of the fee as error, contending that such a fee can only be allowed where the employer refuses payment of compensation, or neglects to pay compensation for the 30-day period following the accident. The statute is: “Whenever the employer refuses payment, or when the employer neglects to pay compensation for thirty days after injury, and proceedings are held before the compensation court, a reasonable attorney’s fee shall be allowed the employee by the court. In the event the employer appeals to the district court from the award of the compensation court, or any judge thereof, and fails to obtain any reduction in the amount of such award,
Plaintiff requests the allowance of an attorney’s fee in this court. The statute authorizes it. We have so held in Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N. W. 2d 571. Plaintiff is allowed an attorney’s fee of $250 for services in this court.
The judgment of the district court is affirmed.
Affirmed.