Ottens v. Western Contracting Company
| Decision Date | 14 February 1941 |
| Docket Number | 31065 |
| Citation | 296 N.W. 431,139 Neb. 78 |
| Parties | OMAR W. OTTENS, APPELLANT, v. WESTERN CONTRACTING COMPANY ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Otoe county: WILMER W. WILSON JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
1. Where fingers are injured in an accident compensable under the workmen's compensation law, and the disability resulting therefrom is the normal, usual, logical and expected consequence of injury to the fingers, no compensation may be awarded in addition to that provided by the statutory schedule.
2. If the claimant in an accident compensable under the workmen's compensation law has suffered a schedule injury to some particular member, and some unusual and extraordinary condition affecting some other member has developed as a result of the accident, an increased award should be made.
3. The burden is on the plaintiff to show by a preponderance of the evidence that the disability of which he complains was caused by an accident arising out of and in the course of his employment.
4. Held, that appellant has shown by a preponderance of the evidence that the disability of which he complains arose out of and in the course of his employment.
5. Found, that appellant has sustained a permanent partial disability to his hand to the extent of 35 per cent for which he is entitled to recover under the workmen's compensation law.
Appeal from District Court, Otoe County; Wilson, Judge.
Proceeding under the Workmen's Compensation Act by Omar W. Ottens, opposed by the Western Contracting Company, employer, and the Employer's Mutual Liability Insurance Company, insurance carrier. From a judgment of the district court, on appeal from the award and judgment of one of the judges of the compensation court, the employee appeals.
Reversed and remanded, with directions.
Thomas E. Dunbar, for appellant.
William P. Morse, contra.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is an action under the workmen's compensation laws of the state of Nebraska. The action was tried before one of the judges of the compensation court, and from the award and judgment appeal was taken by plaintiff to the district court. On trial in the district court award and judgment were rendered, from which plaintiff has appealed to this court. Appellant contends that the award and judgment are insufficient under the evidence and the law to compensate for the injuries he has sustained.
The evidence conclusively shows that appellant, a man of about the age 45 years, on October 5, 1938, together with three other men, was unloading a metal container or drum containing steel stakes, when two of the men stumbled, causing the drum to fall, and in falling two fingers on the right hand of appellant were caught between the drum and the curb of a concrete pavement. The weight of the drum and contents was in excess of 400 pounds. The result was that the ends of the second and third fingers on the right hand of appellant were cut off.
On trial in the district court appellant was awarded temporary total disability from October 5, 1938, to December 26, 1938. Of this portion of the award appellant does not complain. In addition to the award for temporary total disability, appellant received an award of 15 per cent. permanent partial disability for the loss of use of the second and third fingers from and after December 26, 1938, for a period of seven and one-half weeks. It is as to this latter award for permanent partial disability that appellant addresses his complaint. He complains that, as a result of the accident, he sustained, not only injuries to the two fingers, but resulting injury and damage to the hand, which produced permanent partial disability therein of 35 per cent.
Appellees urge that there is no additional disability, and further, if such additional disability exists, it is in consequence of the injury to the fingers, and is not compensable beyond the amounts allowable under the statutory schedule for injury to fingers.
There can hardly be any question that if it be determined that the disability of which appellant complains, if it be found to exist, is a normal, usual, logical and expected consequence of the injury to the fingers, then no compensation may be awarded in addition to that provided by the statutory schedule. Hull v. United States Fidelity & Guaranty Co., 102 Neb. 246, 166 N.W. 628; Johnson v. David Cole Creamery Co., 109 Neb. 707, 192 N.W. 127; Schroeder v. Holt County, 113 Neb. 736, 204 N.W. 815; Greseck v. Farmers' Union Elevator Co., 123 Neb. 755, 243 N.W. 898.
On the other hand, an analysis of the decisions makes it equally clear that we are committed to the rule that where a claimant has suffered a schedule injury to some particular member, and some unusual and extraordinary condition affecting some other member has developed as a result of the accident, an increased award should be made. Schroeder v. Holt County, supra; Greseck v. Farmers Union Elevator Co., supra; Matter of Dowling v. Gates & Co., 253 N.Y. 108, 170 N.E. 511; Matter of Flicker v. Mac Sign Co., 252 N.Y. 492, 170 N.E. 118.
It then becomes necessary to determine whether or not appellant has suffered a schedule injury to two fingers from which an unusual and extraordinary condition has developed in his hand, resulting in disability to the hand, calling for an increased award over and above that allowable under the schedule for injury to the fingers.
From the evidence it appears that at the time of and prior to the accident no abnormal condition existed in the hand of the appellant. After the accident and for quite a period of time except the condition resulting directly and immediately from the accident, none manifested itself, but at some period before appellant was released by Dr. Ramacciotti, the attending physician for the appellees, or soon thereafter, appellant complained to Dr. Ramacciotti of pain in the palm of his hand. The doctor states that he made an examination, found nothing, and paid no more attention to the matter. Following this a condition developed in the hand of appellant variously described as a nodule, a fibrosis, a hard place in...
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