Akins v. Happy Hour, Inc.

• Decision Date: 19 June 1981
• Docket Number: No. 43765,43765
• Citation: 306 N.W.2d 914,209 Neb. 236
• Parties: Jessie L. AKINS, Appellant, v. HAPPY HOUR, INC., et al., Appellees.
• Court: Nebraska Supreme Court

Page 914

306 N.W.2d 914

209 Neb. 236

Jessie L. AKINS, Appellant, v. HAPPY HOUR, INC., et al., Appellees.

No. 43765.

Supreme Court of Nebraska.

June 19, 1981.

Syllabus by the Court

1. Workmen's Compensation: Words and Phrases. "Earning power," as used in Neb.Rev.Stat. § 48-121(2) (Reissue 1978) is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the workman to earn wages in the employment in which he is engaged or for which he is fitted.

2. Workmen's Compensation: Second Injury Fund. Under Neb.Rev.Stat. § 48-128 (Reissue 1978), if an employee who has a preexisting permanent partial disability which was known to the employer prior to the occurrence of a subsequent compensable injury receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury considered alone and of itself, the employer at the time of the last injury is liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability, and for the additional disability the employee shall be compensated from the Second Injury Fund.

3. Workmen's Compensation: Second Injury Fund. The purpose of Neb.Rev.Stat. § 48-128 (Reissue 1978) is not to provide compensation for the previous disability but to provide compensation for permanent partial or total disability resulting from a combination of the previous fact condition with a compensable injury. It is the previous fact condition combined with a second compensable injury causing permanent partial or total disability in fact that establishes the right of the employee to compensation from the Second Injury Fund.

Robert C. Wester of Schirber Law Offices, P. C., Papillion, for appellant.

Hensen & Engles, P. C., Omaha, for appellee Happy Hour.

Paul L. Douglas, Atty. Gen., and John R. Thompson, Deputy Atty. Gen., Lincoln, for appellee State.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

McCOWN, Justice.

This is a workmen's compensation case involving an award against the Second Injury Fund.

The plaintiff was born January 28, 1926. He has a fifth grade education. He lost his left arm at the elbow in an automobile accident in 1952. His employer made arrangements for him to continue working after the automobile accident until the plant was later closed. Thereafter plaintiff worked in various restaurants and bars until 1964 when he purchased the Happy Hour lounge in Omaha, Nebraska. In 1976 he sold the lounge and was retained by the purchaser as an employee with his main duties consisting of running the kitchen and occasionally the bar.

On August 17, 1978, plaintiff sustained a severe cut between the thumb and index finger of his right hand while he was washing dishes. He underwent surgery on two occasions, but the severed tendon did not knit. The stipulated medical testimony is that the second injury resulted in a 45 to 55 percent disability of the thumb, which translates to a 10 to 12 percent disability of the body as a whole. The total physical disability suffered from the combined injuries is a 62 percent permanent disability of the body as a whole.

Plaintiff returned to work in January 1979 and worked until April 1979 when the lounge was closed. Between April 1979 and July 1979 the plaintiff sought employment and applied to between 25 and 30 restaurants but was unsuccessful. In July 1979 plaintiff ultimately obtained a job at a Howard Johnson restaurant, running the kitchen on the midnight shift. Plaintiff is unable to open jars, open the freezer door, clean the meat slicer, or pick up small objects. Nevertheless, plaintiff has been able to retain his job at Howard Johnson's with some assistance from other employees, and was earning as much or more than he was earning at the time of the injury to his thumb.

The Workmen's Compensation Court, at the initial hearing, found that the second injury resulted in a permanent partial disability to the plaintiff's right thumb, which, combined with the loss of his left arm in the prior accident, resulted in a 59 percent permanent partial disability to the body as a whole, and that plaintiff had suffered a substantially greater disability than that which would have resulted from the second injury considered alone and of itself. The court awarded plaintiff a 12 percent disability to the body as a whole for the second injury alone against the employer and its insurance company, and 47 percent permanent partial disability to the body as a whole against the Second Injury Fund. On rehearing the Workmen's Compensation Court found that the plaintiff had failed to prove that he had suffered a substantially greater disability from the combined disabilities than that which would have resulted from the second injury to his thumb considered alone and of itself. The court therefore modified the award by awarding the plaintiff permanent partial disability for the injury to his right thumb against the employer and its insurance carrier and dismissed his petition as to the Second Injury Fund. Plaintiff has appealed.

The relevant statute is Neb.Rev.Stat. § 48-128 (Reissue 1978). The relevant portion of that statute provides: "If an employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, which is or is likely to be a hindrance or obstacle to his obtaining employment or obtaining reemployment if the employee should become unemployed and which was known to the employer prior to the occurrence of a subsequent compensable injury, receives a subsequent compensable injury resulting in additional permanent partial or in permanent total disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself; and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability, and for the additional disability the employee shall be compensated out of a special trust fund created for that purpose, which sum so set aside shall be known as the Second Injury Fund."

The Workmen's Compensation Court, on rehearing, found that the plaintiff had failed to prove that he had suffered a substantially greater disability than that which would have resulted from the last injury considered alone and of itself, because the evidence showed that the plaintiff had returned to work as a cook and was earning as much as, if not more than, he was earning at the time of the injury.

Disability under the Workmen's Compensation Act is defined in terms of employability and earning capacity rather than in terms of loss of bodily functions. Johnson v. Village of Winnebago, 197 Neb. 845, 251 N.W.2d 176 (1977).

"Earning power," as used in Neb.Rev.Stat. § 48-121(2) (Reissue 1978), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the workman to earn wages in the employment in which he is engaged or for which he is fitted. If, after injury, an employee receives the same or higher wages than before injury, it is...