Haler v. Gering Bean Co.

• Decision Date: 15 February 1957
• Docket Number: No. 34045,34045
• Citation: 81 N.W.2d 152,163 Neb. 748
• Parties: Carl HALER, Jr., Appellee, v. GERING BEAN COMPANY and Ted Baum Company and the Fidelity and Casualty Company of New York, Appellants.
• Court: Nebraska Supreme Court

Page 152

81 N.W.2d 152

163 Neb. 748

Carl HALER, Jr., Appellee, v. GERING BEAN COMPANY and Ted Baum Company and the Fidelity and Casualty Company of New York, Appellants.

No. 34045.

Supreme Court of Nebraska.

Feb. 15, 1957.

Syllabus by the Court

1. The applicable rule of construction of the Workmen's Compensation Act is that it be liberally construed to the end that its beneficent purposes may not be thwarted by technical refinement of interpretation.

2. For workmen's compensation purposes 'total disability' does not mean a state of absolute helplessness. It means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality and attainments could do.

3. 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.

4. A claimant for compensation under subdivision (3) of section 48-121, R.R.S.1943, who through an injury has suffered a permanent partial loss of the use or function of two members, is entitled to recover such proportion of the compensation allowed for total disability under subdivision (1) of said section as the extent of his loss would bear to the total loss of such members.

5. It was clearly the intent of the Legislature in establishing a schedule of benefits for the specific injuries listed in subdivision (3) of section 48-121, R.R.S.1943, to fix the amount of such benefits without regard to the extent of the subsequent disability with respect to the particular work or industry in which the employee was engaged at the time of his injury.

6. However, where an employee has suffered a schedule injury to some particular member or members and some unusual and extraordinary condition develops therefrom as a result thereof, which condition affects some other member or the body itself, an increased award is proper and should be made to cover such additional disability.

7. Where an employer appeals to the district court and fails to obtain a reduction of the award of the compensation court, the employee is entitled to an allowance of an attorney's fee. But if, on appeal to the Supreme Court, it is determined that the award of the district court was erroneous and that a decree reducing the award of the compensation court should have been entered, any allowance of an attorney's fee by that court is erroneous.

Jack E. Lyman, Marvin L. Holscher, Scottsbluff, for appellants.

Townsend & Youmans, Scottsbluff, for appellee.

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

WENKE, Justice.

This is a workmen's compensation case appealed from the district court for Scotts Bluff County. Appellee, Carl Haler, Jr., originally filed a petition in the Nebraska Workmen's Compensation Court stating that while he was employed as a common laborer by the appellants Gering Bean Company and Ted Baum Company he received, on or about February 19, 1952, personal injuries arising out of an accident that happened in the course of that employment. He therein set forth the extent of the injuries sustained and then asked for such relief as, under the provisions of the workmen's compensation law, he might be entitled to by reason thereof. Under his prayer appellee was entitled to receive whatever relief the facts established would entitle him to under the compensation law. As this court has often stated: 'The applicable rule of construction is that the Workmen's Compensation Act is to be construed liberally so that its beneficent purposes may not be thwarted by technical refinement of interpretation.' Franzen v. Blakley, 155 Neb. 621, 52 N.W.2d 833, 838.

The claim was tried to a judge of the compensation court who found for appellee and awarded him the following relief: The sum of $26 per week for a period of 85 3/7 weeks, the sum of $15 per week for 214 4/7 weeks, and thereafter the sum of $12 per week for the balance of his life, credit being given for payments already made. Appellant the Fidelity and Casualty Company of New York is the workmen's compensation carrier for appellee's employers.

Appellants thereupon waived rehearing before the compensation court and appealed directly to the district court for Scotts Bluff County, that being the county in which the accident happened. Trial was had in the district court and the trial judge thereof found that appellee had been totally and permanently disabled as a result of injuries suffered from the accident and awarded him, because thereof, $26 per week for 300 weeks commencing on February 19, 1952, and $20 per week for the rest of his life. Since appellee had been paid $26 per week for the period from February 19, 1952, to August 18, 1953, totalling $2,028, the appellants were given credit for that amount. In addition thereto appellants were ordered to pay to Dr. S. P. Wiley the sum of $531 and an attorney's fee of $500.

Appellants filed a motion for new trial and, from the overruling thereof, perfected this appeal. The action is for review here de novo.

The evidence shows that immediately prior to and on February 18, 1952, appellee was employed by both appellants Gering Bean Company and Ted Baum Company as a common laborer; that on that date, while stooped over scooping beans, a stack of 100-pound bags of beans beside which he was working accidentally fell over onto him striking him first in the middle of his back; that he was completely covered thereby; and that, as a result thereof, he was seriously injured. It is conceded by all the parties that plaintiff received his injuries as a result of an accident arising out of and in the course of his employment and that, at the time, his average weekly compensation was $48.

Dr. S. P. Wiley of Scottsbluff, who attended and examined appellee on February 19, 1952, in the West Nebraska Methodist Hospital in Scottsbluff, diagnosed his injuries to be as follows: An oblique comminuted fracture in front of the middle and upper two-thirds of the tibia and fibula of the right leg with the bones angulated in an outward direction at the fracture site and an extensive obliquely running comminuted fracture involving the distal half of the femur of the left leg. There was also a posterior displacement of the proximal end of the distal fragment and some posterior angulation through the fracture region as well as mild media angulation and a superficial laceration of the scalp, which took some 9 stitches to close.

Dr. Wiley testified he treated these fractures by the insertion of pins above and below the fracture sites and with pins and traction and later casted.

Appellee was released from the hospital on July 7, 1952, but was required to use crutches so the legs would not bear too much of his weight. On October 28, 1952, while still on crutches, appellee was examined by Dr. Samuel P. Newman in his office in Denver, Colorado. Dr. Newman's diagnosis of appellee at that time establishes there was a malunion of the fracture of his right tibia and fibula and the same of the lower third of his left femur. Appellee thereafter entered a Denver hospital and, on December 4, 1952, Dr. Newman operated on his right leg and endeavored to straighten it by rebreaking the tibia and then fastening the ends thereof at the break by a bone graft. Following this surgery a full-length leg cast was applied to this leg and he was allowed to leave the hospital on December 22, 1952, doing so on crutches which he continued to use for some 3 months thereafter.

The principal question raised by the appeal relates to the basis upon which appellee can recover. It is appellants' thought that appellee is limited to the provisions of subdivision (3) of section 48-121, R.R.S.1943, because of the parts of his body which were injured, that is, the left leg and right foot. We shall discuss the various provisions of this statute as they have application here.

Subdivision (1) of section 48-121, R.R.S. 1943, insofar as here material, provides in cases of total disability that: 'For the first three hundred weeks of total disability, the compensation shall be sixty-six and two-thirds per cent of the wages received at the time of injury, but such compensation shall not be more than twenty-six dollars per week, nor less than fifteen dollars per week; Provided, that, if at the time of injury, the employee receives wages of less than fifteen dollars per week, then he shall receive the full amount of such wages per week as compensation. After the first three hundred weeks of total disability, for the remainder of the life of the employee, he shall receive forty-five per cent of the wages received at the time of injury, but the compensation shall not be more than twenty dollars per week nor less than twelve dollars per week; Provided, that if at the time of the injury the employee receives wages of less than twelve dollars per week, then he shall receive the full amount of such wages as compensation.'

Subdivision (2) of section 48-121, R.R.S.1943, insofar as here material, provides, in case of partial disability, that: 'For disability partial in character, except the particular cases mentioned in subdivision (3) of this section, the compensation shall be sixty-six and two-thirds per cent of the difference between the wages received at the time of the injury and the earning power of the employee thereafter, but such compensation shall not be more than twenty-six dollars per week. This compensation shall be paid during the period of such partial disability, but not beyond three hundred weeks after the date of the accident causing disability.'

Under these provisions we have said:

'For workmen's compensation purposes, 'total disability' does not mean a state of...