Dietz v. State, 33352

• Decision Date: 03 July 1953
• Docket Number: No. 33352,33352
• Citation: 157 Neb. 324,59 N.W.2d 587
• Parties: DIETZ v. STATE.
• Court: Nebraska Supreme Court

Page 587

59 N.W.2d 587

157 Neb. 324

DIETZ v. STATE.

No. 33352.

Supreme Court of Nebraska.

July 3, 1953.

Syllabus by the Court.

1. On any appeal to this court in a workmen's compensation case, the cause will be here considered de novo upon the record, bearing in mind that where the evidence is conflicting and cannot be reconciled, this court will consider the fact that the district court that tried the cause de novo and observed the demeanor of witnesses gave credence to the testimony of some rather than to the contradictory testimony of others.

2. The burden of proof is upon the claimant in a compensation case to establish by a preponderance of the evidence that personal injury was sustained by the employee by an accident arising out of and in the course of his employment.

3. The rule of liberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered to support a claim by virtue of the law. The rule does not dispense with the necessity that claimant prove his right to compensation within the rules above set out, nor does it permit a court to award compensation where the requisite proof is lacking.

4. Cogent reasons that strengthen the opinion of an expert witness as to a scientific fact in issue and tend to weaken opposite expert opinions not so supported may determine the issue.

5. An employee who, solely because of his injury, is unable to perform or obtain any substantial amount of labor, either in his particular line of work, or in any other for which he would be fitted except for the injury, is totally disabled within the meaning of the workmen's compensation law.

6. An employee who has established by a preponderance of the evidence that he had an accident arising out of and in the course of his employment, which resulted in compensable injury, may be allowed compensation for neurosis if it was proximately caused by the injury and resulted in disability.

Clarence S. Beck, Atty. Gen., and Clarence A. H. Meyer, Dep. Atty. Gen., for appellant.

Max Kier, Lincoln, for appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

This is a workmen's compensation case. After hearing by one judge of the compensation court, it was found that plaintiff, George Dietz, who concededly was injured in an accident arising out of and in the course of employment by defendant, State of Nebraska, was totally disabled as of June 1, 1952, and entitled to compensation therefor so long as such total disability persisted. It was found that his earnings at time of accident were sufficient to entitle him to the maximum rate. Thus, he was awarded $26 each week for 300 weeks from and after June 1, 1952, or until total disability should sooner terminate, and should total disability continue more than 300 weeks from and after June 1, 1952, he was awarded $20 each week so long as total disability should thus persist. Defendant was also ordered to pay $55 for unpaid medical services rendered plaintiff. The award specifically ordered that proceedings for modification thereof might be had at any time by agreement of the parties or upon application of either party, at intervals of not less than 6 months from August 8, 1952, date of the award, for increase or decrease of incapacity, due solely to plaintiff's injury, in conformity with section 48-141, R.R.S. 1943.

Thereafter defendant waived rehearing and appealed to the district court where, upon trial de novo, a judgment was rendered, identical in all material respects with the award rendered by the compensation court, except that $125 additional unpaid medical expenses were also ordered paid by defendant, together with an allowance of $250 for services by plaintiff's attorney in that court.

Defendant's motion for new trial was overruled, and it appealed, assigning substantially that: (1) The trial court acted without or in excess of its powers in rendering the judgment, because the award in the compensation court was obtained in contravention of section 24-327, R.R.S.1943; (2) the findings and judgment were contrary to law and not supported by the evidence; and (3) the findings of fact do not support the judgment. We conclude that the assignments should not be sustained.

We decide that the first assignment has no merit. Under the factual situation presented here, it cannot be said that plaintiff practiced any fraud against the State in the proof, statement, establishment, or allowance of his claim which would ipso facto forfeit the same as provided by section 24-327, R.R.S.1943.

In that connection, on June 25, 1952, plaintiff wrote his own counsel a letter. Therein, after reciting the facts with relation to happening of the accident and certain injuries resulting therefrom about which there is no dispute, and after reciting his then claimed physical disability, which is supported by the testimony of two physicians who examined and cared for him, plaintiff said: 'As long as I am in my present condition, I feel that I will be unable to work full time or part time at any job.' That letter and copy of a medical report of one of plaintiff's physicians supporting the same were transmitted by plaintiff's counsel in a letter to counsel for defendant before trial in the compensation court. Plaintiff was not present at that hearing, but one of his physicians testified that he was totally disabled as a result of the accident and injuries received therein, and the above letter was received in evidence, apparently without objection. In the district court both plaintiff's letter and the correspondence of his counsel transmitting it to counsel for defendant were offered in evidence by defendant and received without objection.

Defendant argued that plaintiff was guilty of fraud upon the State because he was doing some light guard work at the time his letter was written, and in his application for such work had reported that he had recovered from his disability. As hereinafter observed, plaintiff, in need financially, had a right to do or try to do some light work if he could, without waiving his claim of total disability. As a matter of fact, however, there is competent evidence in the record that he was physically unable to continue with the job, which only required him to sit and guard personal property of value. In any event, the primary issue in the compensation court, district court, and here, was and is the extent of plaintiff's disability caused by the accident. His statement aforesaid was simply a layman's opinion, which the testimony of his own physicians and the circumstances support. In Tucker v. Paxton & Gallagher Co., 153 Neb. 1, 43 N.W.2d 522, 526, a related situation was presented. Therein it is said: 'That contention is without legal basis. Whether or not he received an injury as a result of the accident could be determined only through scientific investigation and examination, and he as an ordinary layman may not be charged with such obscure knowledge. Any statement therefore of his with regard to whether or not he sustained the injury complained of as the result of the accident in question may not be considered binding upon him and may not have the effect of defeating the scientific evidence in relation thereto. Flesch v. Phillips Petroleum Co., 124 Neb. 1, 244 N.W. 925; Keenan v. Consumers Public Power District, 152 Neb. 54, 40 N.W.2d 261.'

To hold that plaintiff was guilty of fraud in the manner here charged would defeat every compensation claim against the State, the justice of which was primarily dependent upon scientific investigation and examination rather than the opinion of the ordinary employee involved, with regard to his injuries received or the nature or extent of his disability. Rahfeldt v. Swanson, 155 Neb. 482, 52 N.W.2d 261, relied upon by defendant, is entirely distinguishable from the case at bar.

We turn then to well-established rules of law applicable to the situation otherwise presented by the record. This court has recently reaffirmed that: 'On any appeal to this court in a workmen's compensation case the cause will be here considered de novo upon the record.

'The burden of proof is upon the claimant in a compensation case to establish by a preponderance of the evidence that personal injury was sustained by the employee by an accident arising out of and in the course of his employment. * * *

'The rule of liberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered to support a claim by virtue of the law. The rule does not dispense with the necessity that claimant prove his right to compensation within the rules above set out, nor does it permit a court to award compensation where the requisite proof is lacking.' Miller v. Livestock Buying Co., 157 Neb. 51, 58 N.W.2d 596, 597.

The evidence in this case, both lay and medical, adduced at trial de novo in district court, was irreconcilable, and directly conflicting in many respects with regard to the extent of plaintiff's disability. As stated in Sporcic v. Swift & Co., 149 Neb. 246, 30 N.W.2d 891, 898: '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, ...