Pollard v. Wright's Tree Service, Inc., 81-575
| Decision Date | 16 July 1982 |
| Docket Number | No. 81-575,81-575 |
| Citation | 212 Neb. 187,322 N.W.2d 397 |
| Parties | Kenneth O. POLLARD, Appellee and Cross-Appellant, v. WRIGHT'S TREE SERVICE, INC., Defendant and Third-Party Plaintiff Appellee, Nebraska Second Injury Fund, Third-Party Defendant, Appellant and Cross-Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workmen's Compensation: Appeal and Error. In testing the sufficiency of the evidence to support findings of fact made by the Workmen's Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party.
2. Workmen's Compensation: Appeal and Error. The findings of fact made by the Workmen's Compensation Court after rehearing have the force and effect of a jury verdict and will not be set aside on appeal unless clearly wrong.
3. Workmen's Compensation: Second Injury Fund. In a workmen's compensation case the State and the Second Injury Fund may be impleaded as parties after the initial hearing in the Workmen's Compensation Court and prior to the de novo rehearing, in the absence of proof of prejudice.
4. Workmen's Compensation. Under the Workmen's Compensation Act an award which is payable periodically for 6 months or more is subject to modification on the ground of increase or decrease of incapacity due solely to the injury.
5. Workmen's Compensation. In a modification proceeding in a workmen's compensation case, the whole question of the employee's physical condition can again be inquired into as of that time.
6. Workmen's Compensation: Second Injury Fund: Attorney Fees. Within the meaning of Neb.Rev.Stat. § 48-125 (Reissue 1978) the Nebraska Second Injury Fund is an "employer," and if, on appeal to the Supreme Court, the fund fails to obtain any reduction in the amount of the award of the Workmen's Compensation Court on rehearing, the employee is entitled to a reasonable sum as attorney fees in this court, to be assessed against the Second Injury Fund.
Paul L. Douglas, Atty. Gen., and John R. Thompson, Lincoln, for Nebraska Second Injury Fund.
John R. Timmermier of Schmid, Ford, Mooney & Frederick, Omaha, for defendant and third-party plaintiff appellee Wright's.
Michael P. Cavel of Stave, Cavel & Coffey, P. C., Omaha, for appellee and cross-appellant Pollard.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, and HASTINGS, JJ.
This is a workmen's compensation case. At the initial hearing in the Workmen's Compensation Court the plaintiff was found entitled to benefits under the workmen's compensation law and received an award for temporary total disability to the date of the hearing and for so long as he remained totally disabled, and directed that if total disability ceases he was entitled to statutory amounts of compensation for any residual permanent partial disability. The employer impleaded the Second Injury Fund and made application for rehearing. On rehearing before a three-judge panel the court made an award to plaintiff against the employer for temporary total disability to January 22, 1981, and 7 1/2 percent permanent partial disability to the body as a whole thereafter. The remaining portion of a total disability award was assessed against the Nebraska Second Injury Fund for the duration of plaintiff's total disability. The Second Injury Fund has appealed.
The plaintiff, who was 63 years old at the time of hearing, slipped and fell on January 17, 1979, while clearing brush in the course of his employment by Wright's Tree Service, Inc. He was hospitalized immediately and treated extensively thereafter. As a result of the fall he sustained an injury to his neck which, in and of itself, would have produced a 5 to 10 percent permanent partial disability to the body as a whole. The evidence showed, however, that the plaintiff had undergone three operations between 1972 and 1976 for cervical disc injuries. The first operation was for an injury in 1972, incurred while working for another employer, for which he received workmen's compensation. The two later surgical operations arose from automobile accidents. His employer at the time of the accident involved here was aware of the previous injuries and the plaintiff's resulting partial disability when plaintiff was hired in January 1978. There was also evidence that the plaintiff had a history of episodes in which he stared into space and fell to the ground and was unable to move. The plaintiff's doctor testified that the fall of January 17, 1979, contributed in a material and substantial way to aggravate plaintiff's preexisting cervical spondylosis, and that the 1979 fall caused more disability than it would have to a patient who had not had the previous injuries.
At the initial hearing before the compensation court on October 6, 1980, the Nebraska Second Injury Fund was not a party. Following the entry of the total disability award on November 5, 1980, the employer made application for rehearing and impleaded the Nebraska Second Injury Fund. The Second Injury Fund filed a motion to strike the employer's amended answer and third-party petition on the ground that the compensation court had no jurisdiction over the Second Injury Fund unless it was impleaded prior to the initial hearing before the single judge. The Workmen's Compensation Court overruled the motion of the Second Injury Fund on March 25, 1981, on condition that the employer, Wright's Tree Service, Inc., pay court reporter and witness fees which might be reasonably required by the Second Injury Fund, and also pay temporary total disability benefits to the plaintiff as required by the initial award until such time as the rehearing took place. The employer accepted the conditions and the Second Injury Fund filed its answer. On April 21, 1981, the case was tried on rehearing.
On July 16, 1981, the Workmen's Compensation Court on rehearing found that the plaintiff had had three surgeries involving laminectomies and fusions resulting in a permanent disability rating of 30 to 35 percent, and that the plaintiff had a permanent partial disability which would support a rating of 25 percent loss of earning power or more as a result of the surgeries, and that the defendant had knowledge of said permanent partial disability at the time the plaintiff was hired in 1978, as established by written records. The court further found that the plaintiff was totally disabled as the combined result of the injury to his back on January 17, 1979, superimposed on the previous permanent partial disability, and that since the injury of January 17, 1979, would of itself have caused only a 7 1/2 percent permanent partial disability to the plaintiff's body as a whole, the defendant Nebraska Second Injury Fund was liable for the additional disability.
The court further found that as a result of the accident and injury of January 17, 1979, the plaintiff was unable to perform work for which he had previous training or experience and was entitled to vocational rehabilitation services. The court further found that as a result of the accident and injury of January 17, 1979, the plaintiff incurred hospital and medical expenses of more than $12,000, and was temporarily totally disabled to and including January 22, 1981, a period of 105 1/7 weeks.
The court on rehearing therefore ordered that the plaintiff recover from the defendant Wright's Tree Service, Inc., the sum of $150.13 per week for 105 1/7 weeks of temporary total disability, and thereafter and in addition thereto, the sum of $11.26 per week for 194 6/7 weeks for 7 1/2 percent permanent partial disability to plaintiff's body as a whole. The court gave credit for compensation and medical expenses paid.
The court also ordered that the plaintiff recover from the defendant Nebraska Second Injury Fund, commencing January 23, 1981, the sum of $138.87 per week for 194 6/7 weeks, and thereafter and in addition thereto, the sum of $150.13 per week for the duration of plaintiff's total disability.
The Second Injury Fund first argues that there is insufficient competent evidence that plaintiff's injury arose out of...
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...fees for the proceedings in the Supreme Court. The Fund is an employer within the meaning of this section. Pollard v. Wright's Tree Service, Inc., 212 Neb. 187, 322 N.W.2d 397 (1982). Because the Fund's appeal in Sherard I failed to produce a reduction in the amount of the award, we held th......
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