Micek v. Omaha Steel Works
| Decision Date | 29 September 1939 |
| Docket Number | 30479. |
| Parties | MICEK v. OMAHA STEEL WORKS. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. An employee is not necessarily precluded from recovering compensation, under the workmen's compensation law, by the mere fact that after the injury he receives a larger sum as wages, than his former remuneration.
2. Total disability, under subdivision 1 of section 48-121 Comp.St.1929, of the workmen's compensation law, can only be held to exist where a workman is unable to get, hold or do any substantial amount of remunerative work, either in his previous occupation or in any other established field of employment for which he is fitted.
3. " 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 centum of the difference between the wages received at the time of the injury and the earning power of the employee thereafter, but * * * not * * * more than fifteen dollars per week * * * paid during the period of such partial disability; not, however, beyond three hundred weeks after the date of the accident causing disability." Comp.St.1929, § 48-121, subd. 2.
4. " Earning power," as used in subdivision 2, § 48-121, Comp.St.1929, is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the workman to earn wages in the employment in which he is engaged or for which he is fitted.
5. If any element of a workman's earning power is affected and only partially impaired as the result of an accident arising out of and in the course of employment, and the disability is not one covered by subdivision 3, § 48-121, Comp.St.1929, the workman is entitled to compensation under subdivision 2 of such section to the extent of 66 2/3 per cent. of the amount of the fraction or percentage of impairment in general earning capacity, applied to the wages received by him at the time of the injury, for a period not exceeding 300 weeks from the date of the accident, and in a sum of not more than $15 a week.
6. A workman who, following an accident while he was engaged in common labor on bridge construction work at $9 a week, was able to obtain and perform the work of a bartender at $15 a week, which employment he had continuously followed for more than three years thereafter, held, under the evidence in the record, not entitled to compensation for total disability under subdivision 1, § 48-121, Comp.St.1929, but only to compensation for disability partial in character under subdivision 2 of such section.
Appeal from District Court, Platte County; Spear, Judge.
On rehearing.
Prior opinion vacated and judgment of district court reversed and cause remanded, with directions.
For prior opinion, see 135 Neb. 449, 282 N.W. 262.
Clarence T. Spier and Arthur C. Bailey, both of Omaha, for appellant.
Reeder & Reeder, of Columbus, for appellee.
Hall, Cline & Williams and Flavel A. Wright, all of Lincoln, and Kennedy, Holland, DeLacy & Svoboda and Edwin Cassem, all of Omaha, amici curiae .
Heard before SIMMONS, C. J., EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ., and KROGER, District Judge.
The previous opinion in this case is reported in 135 Neb. 449, 282 N.W. 262.Argument was allowed on the motion for rehearing, and various members of the bar have filed briefs as amici curiae .
Criticism is made of our decision, on the ground that it awards compensation for total permanent disability to a workman who has demonstrated that he is still possessed of a substantial and continuing earning power in other employment.
Without repeating all the facts, it will be recalled that plaintiff suffered a fracture of his first lumbar vertebra, with accompanying nerve injuries. In consequence, his strength has been affected and he tires somewhat easily, is chronically constipated, and has to exert effort in urination. At the time of the accident, he was employed as a laborer on bridge construction work, receiving 30 cents an hour for a 30 hour work-week, or a weekly wage of $9. Subsequently, he obtained a job as a bartender and liquor store clerk, working 72 hours a week, at a weekly wage of $15. When the district court made its compensation award herein, he had been holding the latter job for more than three years.
The first paragraph of the syllabus of our previous opinion declares that an employee is not necessarily precluded from recovering compensation, under the workmen's compensation law, by the mere fact that after the injury he receives a larger sum, as wages, than his former remuneration. With this general principle there can be no sound disagreement. It is in accord with our previous expression (Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N.W. 767), and is amply supported by other decisions. 17 A.L.R. 205, annotation; 118 A.L.R. 731, annotation.
The opinion, however, goes further and (except as to the specific disabilities covered by subdivision 3 of section 48-121, Comp.St.1929) holds, in effect, that unless a workman is able to do the same work as, or similar to, that in which he was engaged at the time of the accident, he is entitled to compensation for total disability, even though he is able to obtain, hold and perform work, at substantial wages, in another established field of employment for which he is fitted. This is contrary to our previous declaration in Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635, and the several cases which have followed it. In these cases we recognized that total disability, under subdivision 1 of section 48-121, Comp.St.1929, can only be held to exist where a workman is unable to get, hold or do any substantial amount of remunerative work, either in his previous occupation or in any other established field of employment for which he is fitted. The same view was expressed in the earlier case of Johnson v. David Cole Creamery Co., 109 Neb. 707, 192 N.W. 127.
Plaintiff argues that Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254, 116 A.L.R. 702; and Ludwickson v. Central States Electric Co., 135 Neb. 371, 281 N.W. 603, support our previous opinion in this case. It will be noted, however, that both these cases cite and purport to follow the rule of Wingate v. Evans Model Laundry, supra, and their facts are within the definition of total disability there recognized. In the Wilson case, hideous disfiguration prevented plaintiff from obtaining sustained employment in any field for which he was fitted. In the Ludwickson case, likewise, plaintiff had not procured or performed work in any established field of employment. The fact that he was able temporarily to earn $40 a month as a " graduate assistant," while attempting to rehabilitate himself at the state university, did not cause him to be any the less totally disabled, since the tasks which he did, to help defray his educational expenses, could hardly be said to constitute a sustained occupation or an established field of employment.
The rule recognized in the Wingate case, supra, that disability cannot be termed total, under the workmen's compensation law, if the claimant's earning power is not wholly destroyed and he is still capable of obtaining and performing remunerative employment, is sound and should be adhered to. 28 R.C.L. 820, § 106; 67 A.L.R. 790, annotation; 98 A.L.R. 732, annotation. If we are to hold a workman totally disabled who, for more than three years, following an accident, has proved an existing earning power, by getting, holding and doing remunerative work in an established and recognized field of employment, we shall be ignoring a common sense reality and bowing to medical or legal fiction. If, as plaintiff contends, disability is to be measured solely by the occupation in which the injury occurs, then there is nothing in the statute to prevent a workman from recovering compensation for total disability in any number of other occupations also in which he may subsequently engage and become injured. For example, if plaintiff were to be allowed compensation for total disability in this case and should thereafter sustain another accident disabling him from performing the duties of a bartender, the logic of plaintiff's rule, in the absence of any legislative limitation, would compel the allowance of compensation to him for total disability in both occupations.
Under the statute, on the evidence before us, we are obliged to hold that plaintiff's disability, as it now exists, is only partial and not total in character. The compensation to which he is entitled is accordingly governed by the provisions of subdivision 2 of section 48-121, Comp.St.1929. Subdivision 2 provides: " 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 centum of the difference between the wages received at the time of the injury and the earning power of the employee thereafter * * * paid during the period of such partial disability; not, however, beyond three hundred weeks after the date of the accident causing disability."
Under the rule laid down in Drum v. Omaha Steel Works, 129 Neb. 273, 261 N.W. 351, plaintiff's wages, for compensation purposes, must be taken as $9 a week. His wages as a bartender have been $15 a week. The fact that he is earning higher wages than at the time of the accident does not, however, as we have indicated above, necessarily preclude him from recovering compensation.
Epsten v. Hancock-Epsten Co., supra. The test under subdivision 2 of section 48-121, sup...
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Micek v. Omaha Steel Works
...136 Neb. 843287 N.W. 645MICEKv.OMAHA STEEL WORKS.No. 30479.Supreme Court of Nebraska.Sept. 29, Syllabus by the Court. 1. An employee is not necessarily precluded from recovering compensation, under the workmen's compensation law, by the mere fact that after the injury he receives a larger s......