Lee v. Lincoln Cleaning & Dye Works

• Decision Date: 28 July 1944
• Docket Number: 31755.
• Court: Nebraska Supreme Court
• Parties: LEE v. LINCOLN CLEANING & DYE WORKS et al.

15 N.W.2d 330

145 Neb. 124

LEE v. LINCOLN CLEANING & DYE WORKS et al.

No. 31755.

Supreme Court of Nebraska

July 28, 1944

Syllabus by the Court.

1. Malingering, as applied to compensation cases, may be defined as a deception, practiced by a dishonest employee, by feigning, inducing, or prolonging either sickness or injury for the purpose of securing illegal or 'fraudulent payments therefor under the workmen's compensation law.

2. Plaintiff may be allowed compensation for neurosis if it is a proximate result of her injury and results in disability.

3. While plaintiff is unable to perform any substantial amount of labor, either in her particular line of work or in any other for which she is fitted except for the injury following an accident, she is totally disabled within the meaning of the compensation law.

4. When an employee appeals to the supreme court from a judgment denying an award in the district court, such employee is not entitled to an allowance of attorney's fees in the supreme court, under section 48-125 Comp.St.Supp.1941, even if the judgment of the district court is set aside and an award granted employee.

Frederick J. Patz, of Lincoln, for appellant.

Baylor TouVelle & Healey, of Lincoln, for appellees.

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

PAINE Justice.

This is a workmen's compensation case, in which plaintiff seeks an award for disability arising out of an accidental injury sustained by her in the course of her employment with the defendant company on August 11, 1942. A judge of the compensation court awarded her $14.67 a week for not to exceed 300 weeks, with medical expenses. Defendants appealed to the district court, and the award was set aside. Plaintiff appeals to this court.

The defendants in their petition on appeal in the district court deny that plaintiff had any accident or injury which was compensable within the meaning of the Nebraska Workmen's Compensation Law, and charge that the award entered in the compensation court by a judge thereof is not supported by the evidence, is contrary to law, and should be set aside and vacated; that the judge erred in finding that the plaintiff suffered any permanent disability, and in finding that the disability suffered was in excess of a period of two weeks; that if plaintiff suffers from any disability of any character, which is not admitted but is expressly denied, the same is the result of sickness and infection, or an inherent condition within the plaintiff, or other natural causes, and is in no way related to or connected with the alleged accident.

The plaintiff filed answer to the defendants' petition on appeal, alleging that she sustained an accidental injury in the course of her employment while ironing a garment and received a severe and painful electrical shock from an electric iron, transmitted from the iron to the fingers of her right hand and her right arm, shoulder and body; that as a result of said electric shock the plaintiff's fingers of her right hand and her right hand, arm, right shoulder and right side were and have been permanently totally disabled, and there exists therein weakness and pain to such an extent that she is unable to carry on any of the duties for which she was employed at the time of the accident, or to do any kind of work for remuneration or gain, and that plaintiff has lost the permanent total use of the fingers of her right hand and of her right hand, arm and right side of her shoulder, and that since August 21, 1942, she has been under the constant care of her physician.

Plaintiff further alleges that she has no special training or education whereby she can earn a living without the use of the fingers of her right hand, right hand, arm, and right side of her shoulder; that she is by education and training a silk finisher, and is entitled to full compensation benefits as provided by law; that she has incurred doctor bills in the sum of $433, and bills for medicine in the sum of $5.40, and that she will incur further doctor and medical bills in the future by reason of said accident, injury and disability resulting therefrom; that at the trial before Honorable Charles E. Jackman the plaintiff was awarded $14.67 each week from and after August 21, 1942, for temporary total disability for a period not to exceed 300 weeks, and plaintiff alleges that she should have been awarded 50 per cent penalty for waiting time and a reasonable attorney's fee.

Plaintiff further alleges that she has not performed any work for pay or gain since August 21, 1942, and is unable to perform any work for pay or gain because of the injuries as set out; denies that said disability arose from a condition inherent within the plaintiff, and alleges that her physical condition has become progressively worse since the time of the accident, and that the award of the compensation court is supported by the evidence and by the law.

After trial in the district court de novo, a judgment was entered by the district judge, finding that the plaintiff suffered only trivial injury because of the accident of August 11, 1942, which did not result in any disability beyond a period of seven days after the date of the accident, and that plaintiff has not since the time of the accident suffered any compensable disability, and that if she suffered any disability the same arose from a condition inherent in herself which is not connected with the alleged accident of August 11, 1942; that the award of a judge of the compensation court should be reversed, vacated and set aside and held for naught, from which judgment the plaintiff filed a motion for a new trial.

Ten errors are relied upon for reversal by the plaintiff, which may be summarized as follows:

That the trial court erred in finding that plaintiff did not sustain an injury from the accident she suffered, and in setting aside the award entered in the compensation court in favor of the plaintiff, and in dismissing the action;

That the district court erred in refusing and failing to find that the plaintiff had proved by evidence leading either to the direct conclusion or to a legitimate inference that the plaintiff was entitled to be paid for all medical expense, including doctor bills;

That the district court erred in finding that the disability of the plaintiff 'arose from a condition inherent in herself which condition was not and is not connected with the alleged accident;'

That the district court erred in failing and refusing to find that the injury suffered and sustained by the plaintiff aggravated a pre-existing diseased condition of the plaintiff, causing hysteria, neurosis, and disability;

That the district court erred in failing and refusing to follow the long-established rule of our supreme court and the statutes of the state of Nebraska which provide for a liberal interpretation of the evidence in compensation cases;

That the district court erred in failing and refusing to permit the plaintiff to amend her answer to defendants' petition on appeal after judgment had been entered and before the motion for new trial had been ruled upon, and such failure and refusal on the part of the district court was an abuse of discretion;

That the judgment of the district court is not sustained or supported by the evidence.

The plaintiff, Mrs. Marie Lee, testified that she was 41 years old in July, 1942, and had been married about 23 years, and has one son 20 years of age. Her husband is a common laborer, employed at the Stuart building, and they had lived in Lincoln about two years before the time of the accident, moving here from Fremont. She worked at the Paramount Laundry & Cleaners for about a year, and then at Butler's Cleaners before she began working for defendant.

She had an operation for appendicitis when she was 19 years of age, and about four years before the accident Dr. Condon of Omaha operated for a tumor and removed her uterus and ovaries, and within four months of that operation she went to work in a cleaning plant in Fremont as a silk finisher and presser; after garments were cleaned she would measure them so they would be the proper size when finished.

She testified that at the time of the accident she was working with an electric steam iron which has holds at the bottom of it to let the steam out when you put your foot on the pedal, and has a cord which plugs in for electricity, and you stand on a rubber mat and work at the wooden ironing board; there is a wooden handle in the center, with a metal piece which comes up on both sides to hold the wooden handle on, and on this iron you were required to touch the metal.

On August 11, 1942, after a half-hour lunch period she returned to work, and was to teach a girl how to finish silk, and she started in by measuring the garment, and showed her how to take hold of the iron, and this girl had wet feet and got a shock, and she told the tirl that she could not iron if she had wet feet, and plaintiff started in and just as she put her foot on the pedal, and had her iron in her hand, she received a shock, which went in her right hand, arm and shoulder and through her back. She made some kind of an outcry, and got to a couch nearby in the washroom. She laid down, as everything was getting black. She thinks she became unconscious, and the others helped her, rubbed her arm, and put cold water on her face, and the next time she looked at her watch, which they had taken off to rub her arm, it was around 2 o'clock.

Mabel Mercier was a fellow employee who helped her, and also another girl Louise, the seamstress. The office manager was Freda Hansen, who acted as boss when Mr. Truman was not there, and gave instructions to the girls. At the time of this accident Mr....