Huff v. Omaha Cold Storage Co.
| Decision Date | 06 October 1939 |
| Docket Number | 30717. |
| Citation | 287 N.W. 764,136 Neb. 907 |
| Parties | HUFF v. OMAHA COLD STORAGE CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Upon application to modify an award, within the meaning of subdivision (b), sec. 48-142, Comp.St.1929, as amended, Laws 1935, ch. 57, sec. 27, on the ground of increase of incapacity due solely to the injury, the burden of proof is upon the petitioner to establish by a preponderance of the evidence that the disability has increased.
2. Before recovery may be had for an increase of incapacity due solely to the injury, within the meaning of subdivision (b) sec. 48-142, Comp.St.1929, as amended, the plaintiff must prove by a preponderance of the evidence that there now exists a material and substantial change for the worse in plaintiff's condition, a change in circumstances that justifies a modification, distinct and different from that for which an adjudication has been previously made.
3. Evidence examined and held insufficient to prove by a preponderance thereof that the plaintiff is entitled to an increase of incapacity due solely to the injury, within the contemplation of subdivision (b), sec. 48-142, Comp.St.1929 as amended.
4. Subdivision (b), sec. 48-142, Comp.St.1929, as amended, providing for modification of an award or judgment of record, grounded upon an increase or decrease of incapacity, does not authorize a modification because of judicial error, if any, in determining the amount of the award, where it is not appealed from.
5. The disability and the permanent injury from which the plaintiff is suffering, her general physical condition being otherwise normal, are governed by subdivision 3, sec. 48-121, Comp.St.1929, and the provisions of said subdivision and section are exclusive.
Appeal from District Court, Buffalo County; Hostetler, Judge.
Proceeding under the Workmen's Compensation Act by Mary Huff, claimant, opposed by the Omaha Cold Storage Company, employer, for modification of a compensation award for temporary total disability. Judgment modifying the award by finding claimant totally and permanently disabled, and the employer appeals.
Reversed and proceeding dismissed.
E. W. Cahow and Hall, Cline & Williams, all of Lincoln, and Hamer, Worlock, Randall & Tye, of Kearney, for appellant.
H. L. Blackledge, of Kearney, for appellee.
Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.
This is a compensation case, involving section 48-142, Comp.St.1929, as amended, Laws 1935, ch. 57, sec. 27, which reads in part as follows: " (b) If the parties cannot agree, then at any time after six months from the date of the agreement or award, an application may be made by either party on the ground of increase or decrease of incapacity due solely to the injury." The question to be determined is whether or not the plaintiff suffered an increase of incapacity due solely to the injury.
It is not disputed that the plaintiff, on February 21, 1934, sustained an accident arising out of and in the course of her employment as a chicken-picker, receiving an injury to the right brachial plexus. The wage which she was receiving at that time, and upon which the original award of compensation was based, is likewise not in dispute.
A brief history of the proceedings had discloses that plaintiff filed a petition originally with the compensation commissioner May 8, 1934, dismissed by her May 31, 1934, in which she alleged the nature and extent of her injury as follows: February 20, 1935, plaintiff filed a petition with the compensation commissioner, alleging the nature and extent of the injury as muscles and ligaments right shoulder torn, atrophy of right hand and nerve injury. Hearing was had on this petition March 19, 1935, and an award was made March 28, 1935, the award finding the plaintiff temporarily totally disabled from the date of the accident up to and including March 18, 1935, a period of 55 and 5/7 weeks, and that thereafter all temporary total disability ceased and was followed immediately by permanent total loss of use of plaintiff's right hand, fixing compensation in the amount of $7.94 a week for 175 weeks, as provided in subdivision 3, sec. 48-121, Comp.St.1929, for the loss of a hand. All of the amounts of compensation were paid with the exception of $31.76, which amount was tendered but not accepted. July 27, 1938, plaintiff filed a petition in the compensation court, reciting the history of the previous hearing and pleadings, alleging that the nature and extent of her injuries were " injury to the muscles and ligaments of her right shoulder," " atrophy of the right hand and nerve injury; " that plaintiff " suffers extreme and excruciating pains in and about the right hand, shoulder, neck and one side of the face and head; " that she suffers total and permanent disability. Hearing was had on this petition September 23, 1938. November 30, 1938, an order of dismissal was entered by the compensation commissioner, stating that " the medical evidence was not sufficient to allow further or additional compensation." Plaintiff waived rehearing and appealed to the district court, filed a petition therein, reciting the history of the case, and, in addition, alleged that solely as the result of the injuries which she sustained her incapacity has increased, and that she has suffered and sustained total and permanent loss of her right hand, all of the right arm and right shoulder, including injury to her neck and the side of her face and head, and to her entire nervous system. The defendant answered, alleging that the award of March 28, 1935, by the compensation commissioner is binding, final and conclusive upon the parties, and that all of the issues between the parties have been adjudicated. The plaintiff's reply alleged material increase in the disability as fixed by the award of March 28, 1935, and that at this time the plaintiff is totally and permanently disabled.
The district court modified the award by finding the plaintiff totally and permanently disabled and unable to perform any substantial amount of labor either in her particular line of work or in any other work for which she would be fitted except for the injury (Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635), and fixed her compensation recovery under subdivision 1 of section 48-121, Comp.St.1929. Defendant appealed from this judgment and here contends that the finding and judgment of the district court are contrary to the law and the evidence and not sustained thereby.
Upon an application to modify an award under the workmen's compensation act, proceeding under subdivision (b), sec. 48-142, Comp.St.1929, as amended in 1935, the burden of proof rests upon the petitioner to establish by a preponderance of the evidence that the disability has increased, decreased or terminated as alleged. Metropolitan Dining Room v. Jensen, 126 Neb. 765, 254 N.W. 405.
The medical testimony in the instant case discloses that plaintiff was examined and treated during 1934 and 1935 by Doctors L. E. Dickinson and A. E. Bennett. She was examined once in 1935 by Dr. L. M. Stearns and once in 1935 by Dr. C. K. Gibbons. She was reexamined by the four doctors in 1939, shortly before the trial of this cause. Without dispute the medical testimony agreed that the injury to the brachial plexus causes the pain in the plamtiff's right shoulder, arm and hand, which leads to her disability; that the brachial plexus is made up of bundles of nerves which emerge from the vertebral foramina in the lower cervical and upper thoracic region and extend downward and outward to the axilla back of the collar bone and above the apex of the lung; that the plaintiff suffered considerable injury to the median and ulnar nerves; that the ulnar nerve controls the muscles of the little and ring fingers; that the muscles are partially paralyzed due to a nerve injury.
Doctor Gibbons testified that the plaintiff was suffering from the same injury that she complained of when he previously examined her in 1935, and made the same general complaints,--the pain in the arm, shoulder and hand; that she is not able to perform the work in which she was employed at the time of the injury because of the disability in her hand and shoulder.
Doctor Bennett examined the plaintiff for the first time on June 1 1934; found a very marked nervous state; that the plaintiff was developing a traumatic neuritis from an injury which she had received to her shoulder region, affecting the brachial plexus. He testified that he saw her several times in October, 1934; her complaints were the same,--pains through the shoulder and the arm, difficulty in moving the muscles of the fingers; that she also had a herpetic skin eruption, becoming pronounced. He treated the plaintiff in November, 1934, in January, 1935, and examined her before the present trial, and found that she had difficulty in gripping with her right hand, except the thumb and forefinger, in lifting the right arm, because of pain; that when she attempts to work she has a rapid fatigue of the muscles in the right hand and arm. The doctor testified that the condition is essentially the same, unchanged except that the skin manifestation is much less; that the character of the pain is the same type of disability complained of by plaintiff in 1935, and her disability is definitely related to the brachial plexus injury; that the general physical condition of the plaintiff is good, outside of the right shoulder, arm and hand, where she has " tenderness over the clavical, the supra clavical space high up in the neck, tenderness in front of the shoulder...
To continue reading
Request your trial