Cardenas v. Peterson Bean Co.

• Decision Date: 15 July 1966
• Docket Number: No. 36257,36257
• Citation: 180 Neb. 605,144 N.W.2d 154
• Parties: Ramon CARDENAS, Appellant, v. PETERSON BEAN CO. and Employers Mutual Casualty Company, Appellees.
• Court: Nebraska Supreme Court

Page 154

144 N.W.2d 154

180 Neb. 605

Ramon CARDENAS, Appellant, v. PETERSON BEAN CO. and Employers Mutual Casualty Company, Appellees.

No. 36257.

Supreme Court of Nebraska.

July 15, 1966.

Syllabus by the Court

1. A workman is entitled to recover compensation for neurosis if it is a proximate result of his injury and results in disability.

2. Except for scheduled member losses, workmen's compensation awards are not made for injury as such, but for inability to perform or obtain work produced by such injury.

3. Where evidence is irreconcilable and in direct conflict, this court will consider that the trial court had the opportunity of observing the witnesses and their manner of testifying and must have accepted

one version of the facts rather than the opposite.

4. Counsel who is not conducting the questioning has no standing to ask that a nonresponsive answer be stricken upon the sole ground of lack of responsiveness.

5. A voluntary statement by a witness, not responsive to a question, should be stricken.

6. A reason for an objection not given will not be considered where it is not stated.

7. Trial courts have broad discretion in the general conduct of a trial, including sanctions involving discovery procedures.

8. The trial court has discretionary power to exclude the testimony of a witness whose identity is deliberately withheld in discovery under proper circumstances. The trial court would also have discretion to impose an alternative sanction to effectively protect against harm due to lack of prior knowledge of the witness, such as continuing the hearing or deferring the questioning of such a witness.

9. Objection to the introduction of testimony of a witness whose name has not been properly disclosed in answer to an interrogatory must ordinarily be made as soon as the applicability of the objection is known or could reasonably have been known to the opponent.

Wright, Simmons & Hancock, Scottsbluff, for appellant.

Lovell & Raymond, Scottsbluff, for appellees.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and COLWELL, District Judge.

McCOWN, Justice.

This is a workmen's compensation case. The district court affirmed an award of the Workmen's Compensation Court sitting en banc granting the plaintiff compensation for an extended period of temporary total disability, medical expense, and for 5 percent permanent partial disability.

The plaintiff, Ramon Cardenas, an employee of Peterson Bean Co., hereinafter referred to as defendant, was injured January 17, 1964, when he fell from a plank walkway while pushing a wheelbarrow into a railroad boxcar. The wheelbarrow was loaded with 100-pound sacks of beans and he fell approximately 6 feet. Some of the sacks of beans also fell down and struck him. As a result of the fall, he received a 2-inch cut on his scalp and also complained of pain around his head, neck, shoulders, chest, and upper back. He was taken to the hospital and remained there under the doctor's care for approximately 5 days. He was released to return to his home, but remained intermittently under the care of Dr. Holmes until June 5, 1964. He had no fractures, but his complaints continued and he was treated with vitamins, liver injections, and decabron, a cortisone-like material useful in the treatment of neuralgia and neuritis, sprains, and strains. On May 14, 1964, Dr. Holmes returned him to the hospital for a revision of the scar on his head. Dr. Holmes last saw him on June 5, 1964. On August 21, 1964, plaintiff went to Dr. Ted E. Riddell for treatment. At that time plaintiff still complained of a pain in his right shoulder and the right side of his neck. Dr. Riddell treated him with steroid injections from time to time, and hospitalized him for traction from October 30 to November 10, 1964. Dr. Riddell also used diathermy and massage which was continued until January 1965, when he did not return to Dr. Riddell. Dr. Riddell referred him to Dr. Schutzer, a psychiatrist who examined the plaintiff November 9 and 10, 1964, and also on July 8, 1965. Dr. John H. Floyd performed a cervical myelogram on the plaintiff on June 30, 1965, which disclosed no material abnormalities. The plaintiff was examined at one time or another by Dr. Schreiner Dr. Lawrence M. Robertson, Jr., a neurosurgeon of Denver, Colorado, Dr. L. E. Daniels, a neurologist of Denver, Colorado, and Dr. Chester H. Farrell, a neuropsychiatrist of Omaha, Nebraska. Dr. Schreiner did not testify. A report from Dr. Robertson was introduced in evidence, and all the other doctors mentioned testified. Essentially, the doctors all agreed they could find no physical or organic reason to account for the extent of the complaints and symptoms evidenced by the plaintiff. Dr. Schutzer, however, was of the opinion that the plaintiff was temporarily totally disabled from a traumatic neurosis. He also testified in response to a question as to whether the plaintiff was able to earn wages in the same kind of work or work of a nature similar to that he had been doing by stating: 'I would say that he's not able to perform as capably as he did before. I feel the symptom would prevent him from engaging in work in that same way.' Dr. Farrell was of the opinion that the plaintiff had an 'hysterical fixation upon a traumatical incident.' Dr. Farrell felt that the plaintiff was partially incapacitated because of the fact he had a traumatic incident, but did not want to state any percentage that he was disabled. Dr. Robertson was the only physician who ever gave a specific opinion as to a percentage of permanent partial disability and his estimate was 5 percent.

Since the accident, the plaintiff has neither attempted to work nor applied for work. His complaints continue essentially the same except that there are no longer complaints as to his chest. Dr. Farrell probably expressed accurately the consensus of all the doctors on this issue when he stated: 'I know this man has fear that he has been hurt greater than he actually has.'

At the initial hearing before a single judge of the Workmen's Compensation Court on January 25, 1965, it was found that the plaintiff was temporarily totally disabled and would remain totally disabled for an indefinite future period. At the hearing before the Workmen's Compensation Court sitting en banc on July 13 and 14, 1965, the plaintiff was awarded compensation of $37.50 per week for temporary total disability for a period of 69 2/7 weeks ending May 17, 1965, and in addition, $1.88 per week for 230 5/7 weeks for a 5 percent permanent loss of earning power. The compensation court specifically found that the plaintiff failed to maintain the burden of proving that he sustained any traumatic neurosis or any disability beyond that awarded. On November 27, 1965, the district court affirmed the award of the compensation court in all respects.

The plaintiff's first group of assignments of error center around the court's finding as to disability and the specifically related problem of traumatic neurosis.

This court is committed to the rule that a workman is entitled to recover compensation for neurosis if it is a proximate result of his injury and results in disability. See Haskett v. National Biscuit Co., 177 Neb. 915, 131 N.W.2d 597. In that case, however, it was pointed out that there was no serious contention of malingering. In this case, the expert testimony ranges all the way from an opinion that the plaintiff was entirely malingering to one that he was not malingering at all. Psychiatrists concede that conscious actions may be involved to one degree or another, even in admitted cases of traumatic neurosis. The distinction between hysteria, a neurotic illness, and malingering seems to be in whether the patient acts or reacts as he does consciously or unconsciously. Medically speaking, it is extremely difficult to classify an individual as acting wholly consciously or wholly unconsciously. Fortunately or unfortunately, however, the law must attempt the classification. Even if it be conceded that an individual has a neurosis, however, this does not make the neurosis compensable nor prove his total disability. Except for scheduled member losses, workmen's compensation awards are not made for injury as such, but for inability to perform or obtain work produced by such injury. The degree of disability also depends upon the inability to perform or to obtain work. The extent of the disability is still subject to proof whether the injury is 'physical' or 'mental.' In any event, both the issue of whether or not the plaintiff had a traumatic neurosis and the question of the extent of his disability were questions of fact and the medical evidence supports the award in this case. The rule is also applicable here that where evidence is irreconcilable and in direct conflict, this court will consider that the trial court had the opportunity of observing the witnesses and their manner of testifying and must have accepted one version of the facts rather than the opposite. See Runyons v. Otto G. Mavis & Sons, Inc., 177 Neb. 179, 128 N.W.2d 596.

The plaintiff also assigns error in several instances in which the court struck answers or responses made by the plaintiff to questions from his own counsel on direct examination, where an objection was made by the defendant's counsel on the ground that the answers were not responsive. It is the plaintiff's position that an objection for lack of responsiveness can be made only by the party examining the witness; and that if the answer is proper evidence, the party who is examining the witness has the right to retain it if he chooses to do so, and it cannot be excluded on this objection by the adverse party. We believe the proper rule to be that counsel who is not conducting the questioning has no standing to ask that a nonresponsive answer be stricken upon the sole ground of lack of responsiveness. See, III Wigmore on Evidence (3d Ed.), § 785, pp. 160, 161; ...