Flesch v. Phillips Petroleum Company
| Citation | 244 N.W. 925,124 Neb. 1 |
| Decision Date | 04 November 1932 |
| Docket Number | 28544 |
| Parties | JOSEPH C. FLESCH, APPELLEE, v. PHILLIPS PETROLEUM COMPANY, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " A workman who, solely because of his injury, is unable to perform or to 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." Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635.
2. 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.
3. Under the Workmen's Compensation Law, a claim for disability held properly allowed on contradicted evidence that an accidental injury to employee's feet resulted in traumatic arthritis therein, the defense being that the employee's disability was due to infectious arthritis independently of the accident.
4. Failure to give employer notice of a claim for compensation within the statutory period of six months is not necessarily a defense, if employee's accidental injury is latent and progressive and cannot with reasonable certainty be recognized at first as compensable, where notice is given within 6 months from the time the employee acquires knowledge of a compensable disability as a result of the accident.
Appeal from District Court, Douglas County; W. G. Hastings, Judge.
Proceedings under the Workmen's Compensation Law by Joseph C. Flesch, employee, against the Phillips Petroleum Company, employer. From a judgment in favor of the employee awarding compensation, on appeal from a decision of the compensation commissioner disallowing compensation, the employer appeals.
Affirmed.
Gaines, McGilton, McLaughlin & Gaines, for appellant.
Henry G. Meyer and James C. Kinsler, contra.
Heard before ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is a proceeding under the workmen's compensation law. Joseph C. Flesch, plaintiff, was employee, and Phillips Petroleum Company, defendant, was employer.
Plaintiff was engaged in the duties of his employment March 10, 1931, in an automobile service station operated by his employer at Forty-eighth and Dodge streets, Omaha. While then and there at work below the rear end of an automobile which had been elevated to a height of 55 inches on a hoist, he attempted to loosen rear shackle bolts with an iron bar which suddenly slipped when he was suspended thereon by his hands and, leaning forward, he unexpectedly fell six inches or more and landed with the balls and toes of his feet on a concrete floor. Alleging he thus sustained compensable injuries to his feet, he presented his claim to the compensation commissioner, who disallowed it. Plaintiff appealed to the district court for Douglas county and proceeded on the theory that the accident resulted in permanent disability in the form of traumatic arthritis in his feet. The claim was resisted by defendant on the grounds that the arthritis was caused by infection independently of the accident and that the necessary six months' statutory notice of a claim for compensation had not been given. The district court found the issues in favor of plaintiff and rendered a judgment in his favor for $ 15 a week from July 1, 1931, to September 1, 1931; $ 12.50 a week from September 1, 1931, to March 1, 1932; $ 15 a week thereafter during disability; $ 145 for services of his physician. Defendant appealed.
On a trial de novo in the supreme court, defendant presented a formidable argument on the proposition the employer proved by a preponderance of the evidence that the disability for which the employee claimed compensation was caused by infectious arthritis as distinguished from traumatic arthritis and not by an accident. This was the principal issue on which the parties divided.
Some material facts are not in dispute. Plaintiff entered the employ of defendant in January, 1931, when he was 23 years of age. As a prerequisite to his employment he was subjected to a physical examination by a physician of defendant's selection. As a result plaintiff was certified to be in a good condition of health without mention of any physical defects. Prior to March 10, 1931, he was not handicapped by any infirmity in his feet, but whenever he walked thereafter he suffered pain and weakness therein and was thus hampered in his work. He had fallen from the iron bar on which he had been suspended and had landed on his feet in the manner stated in his claim for compensation. He complained of his injuries without delay and on the night following the accident he treated his feet for pains and soreness. Continuously thereafter he sought and received the services of physicians without substantial improvement of his condition and lost his position July 1, 1931, when injuries to his feet unfitted him for the services he had been performing at defendant's service station and for any other work requiring him to be constantly on his feet. After the accident he suffered from pain and weakness in the metatarsal arch of his right foot where arthritis in some form developed. The facts thus outlined are not open to serious controversy. Plaintiff walked with crutches at the time of the trial and was totally disabled within the meaning of the workmen's compensation law, if his disabling injuries resulted from the accident March 10, 1931; the rule of law applicable to his disability being as follows:
"A workman, who, solely because of his injury, is unable to perform or to 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." Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635.
In the present proceeding the...
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