Peek v. Ayers Auto Supply

• Decision Date: 03 July 1953
• Docket Number: No. 33384,33384
• Citation: 157 Neb. 363,59 N.W.2d 564
• Parties: PEEK v. AYERS AUTO SUPPLY et al.
• Court: Nebraska Supreme Court

Page 564

59 N.W.2d 564

157 Neb. 363

PEEK v. AYERS AUTO SUPPLY et al.

No. 33384.

Supreme Court of Nebraska.

July 3, 1953.

Syllabus by the Court.

1. A proceeding under section 48-141, R.R.S.1943, to modify a previous award of the compensation or district court, payable periodically for more than 6 months on which payments have been completed as specified therein and to recover additional compensation for an increase in incapacity, can be brought any time within 1 year from the time the employee knows or is chargeable with knowledge that his condition has materially changed, and that there has been such a substantial increase in his disability as to entitle him to additional compensation.

2. The statute restricts the basis for a modification of a previous award of compensation to the increase or decrease of incapacity that has occurred since the award and has been caused by the violence to the physical structure of the body of the claimant by the accident.

3. Any increase or decrease in incapacity of the claimant the cause of which is not the injury received in the accident, the basis of the previous award, is insufficient to justify modification of the award.

4. An application in the court which granted a previous award may be maintained to recover additional compensation for an increased disability after the payments required by the award have been completed and the award has been fully performed and discharged.

5. The provisions of the Nebraska Workmen's Compensation Act that the contract of an insurance carrier is a direct promise to and is enforceable in the name of one entitled to compensation benefits makes the carrier a proper party defendant in a proceeding to recover benefits provided by the act.

6. An application to modify an award of compensation should be made to the court and in the proceeding in which the previous award was made.

7. An application by an injured workman for additional compensation because of increased incapacity is not a new proceeding but is only another step in the proceeding initiated by the filing of the original petition for an adjustment of his claim.

8. The jurisdiction acquired by the compensation court by virtue of the Nebraska Workmen's Compensation Act of a proceeding in which a petition for compensation is made continues, except as otherwise provided in the act, as long as the workman suffers disability the proximate cause of which may be traced to the injury for which claim was originally made and compensation was awarded.

9. The jurisdiction of the district court to modify an award of compensation made therein is identical with that of the compensation court concerning a modification of an award made in that court.

Tesar & Tesar, Omaha, for appellant.

Fraser, Connolly, Crofoot & Wenstrand, Omaha, for appellees.

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

BOSLAUGH, Justice.

Appellant, an employee of Ayers Auto Supply Company of St. Joseph, Missouri, proceeded against as Ayers Auto Supply was seriously injured in an accident arising out of and while he was engaged in the course of his employment. In proceedings instituted by him for the recovery of the benefits provided by the Nebraska Workmen's Compensation Act for total and permanent disability he was by this court, in an appeal from the district court for Richardson County, by trial de novo on the record determined not to be totally and permanently disabled by the injuries received in the accident but that he was entitled to and was granted compensation as follows: $18 a week for 105 weeks for temporary total disability; $17.90 a week for 175 weeks for 75 percent temporary partial disability; and $18 a week for 17 1/2 weeks for 50 percent loss of his left ear and 20 percent loss of his right ear. He was also allowed additional amounts for medical expenses and services and for necessary traveling expenses incurred by him. Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387.

Judgment was entered in the district court on March 20, 1952, as directed by this court. The period for which compensation had been awarded ended on January 13, 1952. The judgment in favor of appellant was paid to him in full on June 4, 1952.

Appellant filed on December 12, 1952, in the district court for Richardson County a petition in which Ayers Auto Supply and Consolidated Underwriters were named as defendants. It alleged the happening of the accident on May 1, 1946, the injury of appellant therein, his employment by the Ayers Auto Supply Company, the compensation paid to him as above stated, an increase in his disability since 'the entry of the decision of the Supreme Court of Nebraska and mandate issued thereon,' and that he was on the date of the filing of the petition totally and permanently disabled as a result of the injuries suffered by him in the accident of May 1, 1946. The service of process in this case on Ayers Auto Supply was defeated by an order of the court adjudging it insufficient and void. A demurrer of Consolidated Underwriters to the petition was sustained.

The district court on January 13, 1953, on motion of appellant consolidated the second case in which the petition was filed in that court on December 12, 1952, with the original compensation case; gave appellant leave to name Noble I. Ayers, Noble I. Ayers, Jr., John C. Ayers, and Consolidated Underwriters as additional parties defendant; and gave appellant permission to file a petition in the original compensation case. The petition filed was in substance similar to the one filed in the second case. A summons issued by the district court and a copy of the petition were served on Ayers Auto Supply, Noble I. Ayers, Noble I. Ayers, Jr., and John C. Ayers in Buchanan County, Missouri, an affidavit having been filed that they were each nonresidents of the State of Nebraska and were residents of the State of Missouri. They severally appeared and objected to the jurisdiction of the court over their person and the court sustained their special appearance. The Consolidated Underwriters demurred to the petition and it was sustained by the court. Appellant elected not to plead further and his petition was dismissed.

Section 48-141, R.R.S.1943, contains these provisions: '* * * the amount of any * * * award payable periodically for six months or more may be modified as follows: (a) At any time by agreement of the parties with the approval of the compensation court; or (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 * * *. In such case, the same procedure shall be followed as in sections 48-173 to 48-185, in case of disputed claim for compensation, except that after the district court has entered order, award or judgment in the case then the application shall be made to that court.'

The requirements for a modification of a previous award of compensation and a recovery of an additional amount are an agreement of the parties approved by the compensation court or that the award was payable periodically for 6 months or more; an increase in incapacity due solely to the injury upon which the original award was based; and that application for additional benefits is made to the court in which the original award was granted more than 6 months after the award and within 1 year from the time the employee knew or was chargeable with knowledge that his condition had materially changed since the original award was made and that there had been such substantial increase in his disability as to entitle him to additional compensation. Sections 48-137 and 48-141, R.R.S.1943; Scott v. State, 137 Neb. 348, 289 N.W. 367; Riedel v. Smith Baking Co., 150 Neb. 28, 33 N.W.2d 287; Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65; Huff v. Omaha Cold Storage Co., 136 Neb. 907, 287 N.W. 764; Annotation, 165 A.L.R. 242.

The award of compensation made to appellant because of his injuries caused by the accident of May 1, 1946, was the judgment of the district court for Richardson County rendered on March 20, 1952. The amount thereof was payable periodically for more than 6 months. The application of appellant for additional compensation was filed in that court on January 13, 1953, more than 6 months from the date of the award and within less than 1 year from the time he alleges he knew his condition had changed since the original award, and he alleges there has been such a substantial increase in his incapacity resulting from the injuries on which the award was based as to entitle him to additional compensation. The application complies with the requirements of the law and entitles him to a hearing of it.

Appellees contend that the award was not payable at periodical times; that the compensation period expired January 13, 1952; that the decision of the court determining what the award should be was not made until February 1, 1952; and that the judgment was not entered in the district court as directed by this court until March 20, 1952. The fact that litigation delayed the final award did not prevent it from being an 'award payable periodically for six months or more.' The actual compensation period was 297 1/2 weeks. It is true that the payments were all due when the judgment was finally rendered and it was fully paid and discharged on June 4, 1952, before the application was filed for additional benefits because of increased incapacity. It is said because of this the original case was exhausted and closed; that there was no case pending; and that there was no award that could be modified, increased, or decreased. There is much authority for the doctrine that an application for modification of a decree awarding compensation under a statute authorizing such application must be made while the jurisdiction of the court over the case...