Ludwickson v. Central States Elec. Co.

• Decision Date: 30 October 1942
• Docket Number: 31442.
• Citation: 6 N.W.2d 65,142 Neb. 308
• Parties: LUDWICKSON v. CENTRAL STATES ELECTRIC CO.
• Court: Nebraska Supreme Court

6 N.W.2d 65

142 Neb. 308

LUDWICKSON v. CENTRAL STATES ELECTRIC CO.

No. 31442.

Supreme Court of Nebraska

October 30, 1942

Syllabus by the Court.

1. An award of compensation under the workmen's compensation act fixes the rights and liabilities of the parties, and is subject to modification only as authorized by statute.

2. A petition to modify such an award cannot be used for the purpose of correcting judicial error, if any, in the original proceeding.

3. The statute, Comp.St.Supp.1941, § 48-142, authorizing a decrease or increase on the ground of incapacity due solely to the injury, limits the basis for the modification to that increase or decrease of incapacity which is due solely and only to that violence to the physical structure of the body which resulted from the accident, and which increase or decrease has occurred since the award was rendered.

4. Any increase or decrease of incapacity due to other causes is not within the scope of the authorized inquiry and cannot be used as a basis for a modification of the award.

5. The compensation act contemplates that there will ultimately be a partial rehabilitation of those employees who have received a permanent disability.

6. The automatic reductions in compensation provided in the act do not presuppose a decrease of incapacity due to the injury but rather presuppose that within the periods of time named the employee will have adjusted himself to his disability and established a new basis of self-support.

7. The employer against whom a final award has been rendered is not entitled to a decrease of his compensation liability, in addition to those provided in the act, because the employee since the award was made, has succeeded in assuring a livelihood to himself.

8. The evidence has been reviewed and it is held that there has not been a decrease of plaintiff's incapacity due solely to his injury arising since the final award of compensation was rendered, which defendants seek to modify.

Stewart Stewart & Whitworth, of Lincoln, for appellants.

Alfred D. Raun, of Pender, and Perry, VanPelt &amp Marti, of Lincoln, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

SIMMONS Chief Justice.

Defendants here petitioned for a modification of a former judgment awarding compensation to the plaintiff under the workmen's compensation act. The district court denied their petition and defendants appeal.

In Ludwickson v. Central States Electric Co., 135 Neb. 371, 281 N.W. 603, this court affirmed the judgment of the district court and held that plaintiff's disability was permanent and total. It is that judgment the defendants seek to modify.

Defendants base their petition upon two propositions. First, the plaintiff has rehabilitated himself by securing an advanced education and has been gainfully employed for more than four years at a salary greater than that which he was receiving at the time of the accident, and is therefore not totally disabled. Second, that, irrespective of his present employment, plaintiff's physical condition has improved to such an extent that he is no longer totally disabled. As to the first proposition the evidence is undisputed. At the time of the first trial plaintiff was attending the University of Nebraska as a student, seeking to obtain a Master's degree in mechanical engineering. He was at that time receiving $40 a month in wages as a graduate assistant. Beginning September 1, 1938, he has been an instructor at the University of Nebraska, teaching heat power engineering, thermo-dynamics and power machinery courses. His salary began at $1,450 for a ten-months year. Beginning September, 1940, his salary has been $1,500 for the comparable period.

As to the second proposition, the evidence is that plaintiff is able to do the work of an instructor about the classroom and laboratory, that he is able to do casual work about his home, that he walks a few blocks to meals, that he dances occasionally and is able to drive his automobile for an extended time. He suffers pain from the scars on his feet, the stump of his arm, and has other unfavorable reactions from the extensive scars on his body. Reference is made to the former decision for a detailed statement of his injuries and condition at that time. Defendants offered the same two doctors who testified for them at the original trial. These experts re-examined the plaintiff, and at this hearing reviewed their findings and conclusions made at the former trial, brought them down to date, and expressed their opinion that there had been a material improvement in plaintiff's physical condition, that his disability was definitely less, and fixed his present general "industrial disability" at from 25 to 50 per cent. Their examination upon which this opinion was based covered a period of a few minutes. Their evidence in some respects was rather indefinite.

Plaintiff offered three medical experts, one a witness who did not testify at the previous hearing. The plaintiff, in the court's chambers, removed his clothing, and the doctor testified as to the injuries with reference to the plaintiff's body in the presence of the court. This witness expressed the opinion that, "for any type of manual labor or work involving exercise of any type, he (plaintiff) would have at least 75 or 80 per cent. disability." Plaintiff presented also the evidence of the two medical experts who testified for him at the former trial. They also reviewed their previous findings, brought those findings down to date, pointed out the condition of his wounds as to scars, adhesions, loss of muscles, pain, etc., and expressed the basis for and gave their opinion that there had been no material change in his condition and that his disability amounts to the same now as then. One of them stated: "His disability for any gainful occupation having any labor was still 100 per cent." This witness stated that there had been some increase in the detrimental condition of his body arising from his injuries. Upon this record the trial court found generally for the plaintiff; that the defendants had failed to establish, by a preponderance of the evidence, any decrease in incapacity of plaintiff due solely to the injury upon which the final judgment in the first trial was based; that there has been no appreciable decrease of incapacity due solely to the injury, and dismissed appellants' petition.

It must be remembered that we are here dealing with statutory rights liabilities, and procedure. At the outset it is necessary that we determine the scope of the inquiry that may be made in this proceeding. That the judgment of the district court, which was affirmed by this court, was a final judgment, fixing the rights and liabilities of the parties, and subject to modification only as authorized by statute, cannot be successfully questioned. Metropolitan Dining Room v. Jensen, 126 Neb. 765, 254 N.W. 405. The statute applicable here provides that it may be modified upon application of either party "on the ground of increase or decrease of incapacity due solely to the injury." Comp.St.Supp.1941, § 48-142. For that reason may the first judgment be modified? This proceeding cannot be used for the purpose of correcting judicial error, if any, in the original proceeding. Connelly v. Carnegie Dock & Fuel Co., 148 Minn. 333, 181 N.W. 857. "An award will not be changed unless the board has statutory authority, and the one seeking to change the award presents evidence bringing the case within the statutory provisions." 2 Schneider, Workmen's Compensation, 2d Ed., 1980. The question of "increase or decrease" must be determined upon facts arising "from the date of the agreement or award." Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N.W. 764. We start then with...