Rahfeldt v. Swanson

• Decision Date: 07 March 1952
• Docket Number: No. 33125,33125
• Citation: 155 Neb. 482,52 N.W.2d 261
• Parties: RAHFELDT v. SWANSON et al.
• Court: Nebraska Supreme Court

Page 261

52 N.W.2d 261

155 Neb. 482

RAHFELDT v. SWANSON et al.

No. 33125.

Supreme Court of Nebraska.

March 7, 1952.

Syllabus by the Court.

1. The right of recovery in a workmen's compensation case is statutory and the burden is on the claimant to establish the facts essential to an award.

2. An appeal in a workmen's compensation case will be by this court considered de novo upon the record.

3. An award of compensation under the Nebraska Workmen's Compensation Act may not be based on possibilities, probabilities, or conjectural or speculative evidence.

4. In such a case if the evidence is in irreconcilable conflict the court may upon a trial de novo consider the fact that the district court gave credence to testimony of some witnesses rather than contradictory testimony of other witnesses.

5. A court is not required to permit a litigant to trifle with the processes of the court by asserting therein under oath at different times the truth of each of two or more contradictory versions of an event or events in controversy according to the necessities of the particular occasion presenting itself.

J. E. Willits, Hastings, for appellant.

Deutsch & Jewell, Norfolk, for appellee.

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

BOSLAUGH, Justice.

This case involves a claim of appellant against appellees for benefits provided by the Nebraska Workmen's Compensation Act.

The claim of appellant as stated in his petition in district court is that on the 23d day of July 1948, he was employed by Arnold W. Swanson; that New York Casualty Company was his compensation insurance carrier; that appellant on that date suffered personal injuries by an accident arising out of and in the course of his employment consisting of a fracture across the trochanteric area of the right hip, severe bruises and nervous shock, and a right inguinal hernia; that his injuries affected his right foot, arms, back, spine, shoulders, and the use and functions of them; that his injuries and disabilities therefrom are 'permanent and practically total;' and that his weekly wage was $106.75. The answer of appellees, insofar as important to this appeal, is a denial of the petition of appellant.

The district court found as follows: That appellant on July 23, 1948, sustained a fracture across the trochanteric area of his right hip; that he had surgical, hospital, and nursing services on account thereof; that he was because of the injury temporarily totally disabled until January 21, 1949, a period of 26 weeks at which time temporary disability terminated; that he had a 10 percent permanent partial disability to his right leg by reason of the injury to it; and that no other injury or disability claimed by appellant was caused by or was referable to the accident involved in the case.

That the hernia claimed to have been caused by the accident on July 23, 1948, to the right side of appellant existed before it and any disability resulting was not caused by it; and that there was no evidence of increased disability of appellant because of the hernia or any aggravation of it by the accident of July 23, 1948, and he was entitled to no compensation because thereof.

That appellant was entitled to recover for the temporary total disability suffered by him $18 a week for 26 weeks the sum of $468 less the payments made him by appellees amounting to $461.71 or a balance on that account of $6.29, and for 10 percent permanent partial disability to his right leg $18 a week for 21 1/2 weeks the sum of $387 or a total of $393.29 due and unpaid to fully compensate for all disability of appellant resulting from the accident of July 23, 1948; and that appellant should recover the balance of expenses incurred by him for travel to and from doctors and the hospital amounting to $107.44.

The court rendered judgment for appellant and against appellees for $500.73. The court also required appellees to pay, in accordance with the medical and hospital fee schedule promulgated by the Nebraska Workmen's Compensation Court, the fees incurred for an operation for the reduction and repair of the hernia on the right side of appellant, the fees for the operation for the removal of the steel blade plate inserted at the site of the fracture in the right leg of appellant, and the hospital fees while appellant was hospitalized incidental to the operation, provided he elected to and did submit to the operation within 60 days of June 18, 1951.

Appellant contends that the evidence shows and that the district court should have found that he is totally disabled and the court should have awarded him recovery on that basis. The record advises that he was taken to a hospital in Sioux City, Iowa, soon after he was injured on July 23, 1948, and that he was cared for by Dr. O'Donoghue who had specialized in orthopedic surgery and treatment of fractures for 30 years. The history the appellant gave the doctor was that a few hours previously while he was working with a hammer in his right pocket resting against his right hip he fell and landed on the head of the hammer. He complained of no injury other than to his right hip. The doctor examined him with the assistance of X-ray and found a fracture across the trochanteric area of the right hip. The fracture was, on July 26, 1948, after the patient had recovered from shock, openly reduced and held with a stainless steel blade plate. Appellant was confined in the hospital 15 days after the operation and when he was discharged his physical condition was excellent. He could not bear weight on his right leg at that time but moved about with the aid of crutches.

He called on the doctor on October 7, November 4, December 14, 1948, and April 20, 1949. The doctor took X-rays and examined him on each visit. On the first of these dates his hip was 'doing very well' but he had a mass in his right groin 'which he did not have when we first saw him at the hospital.' It was diagnosed as a right inguinal hernia. On November 4 he was allowed to put some weight on the fractured hip. On December 14 'the hip was completely healed. We told him to discard his crutches and do as much work as he wanted to.' On that date he wanted to drive a car from the State of Iowa of Phoenix. He was examined the last time on April 20, 1949, and the doctor found that his hip was entirely normal in every way. The X-ray examination showed the hip was perfect. The place where it was broken could not be seen. He then had no permanent disability of any kind, occupational or otherwise, as a result of the fracture of his hip. His hip was as good as it was before the accident. The doctor based his conclusion that appellant had no permanent disability and would not have in the future because of the fracture on his many years of experience in treating many hundreds of previous injuries, and the fact that even an X-ray did not show the fracture after it healed; that it healed without leaving any residuum; that the angle or inclination of the shaft of the femur was perfectly normal; that the density of the bone on the broken side was normal; that he had full range of passive movement of the hip joint; and that there was no appreciable muscle atrophy.

Appellant was given six months of temporary total disability because the bone was not strong enough to carry weight without support for about four months, and the additional two months were to get the muscles limbered up and strength back in them. The length of his right leg was not affected or changed as a result of the injury. The doctor had no record or recollection of any complaint of the appellant of pain in or between the shoulders. There were no nerves affected by the operation and the doctor did not tell appellant that there were. It is not necessary to remove the plate from the hip of appellant because of the type of fracture that he had. The plate will not change and it will not affect the physical parts or tissues of the body of appellant in any way. Dr. O'Donoghue was the only doctor who was consulted and who did anything for appellant after he arrived at the hospital on the day of the accident until May 4, 1949, a period of about 10 months.

Appellant was examined on August 11, 1949, by Dr. Johnson, a specialist in orthopedic surgery since 1924, and an instructor on the subject of fractures in the Medical College of the University of Nebraska since 1925. He found that the 'fracture line through the intertrochanteric region is held in perfect position,' there was complete union at the site of the fracture, and the bone and the apposition were in perfect position. The motions of the right hip joint were within normal limits except internal rotation was limited to one-half of normal. There was slight atrophy of the right thigh above the patella. The two hips were identical except there was a little bone atrophy or decalcification. There was no shortening of the right lower limb. There was no condition or disability except as stated above that could be attributed to the fracture of the right leg of appellant. The conclusion of Dr. Johnson was that appellant had ' a ten per cent permanent partial impairment of the right...