Rexroat v. State
| Decision Date | 23 December 1942 |
| Docket Number | 31496. |
| Citation | 7 N.W.2d 163,142 Neb. 596 |
| Parties | REXROAT v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where an employer alleges in a petition on appeal that the disability under which the employee labors is not due to injuries which he sustained, but due to his own failure or unwillingness to allow normal recovery, and that had the employee made any effort to restore the injured member to service, his disability at this time would be negligible, such is an affirmative allegation, tantamount to charging the employee with negligence, and in order to prevail in such case the burden of proof, under section 48-107, Comp.St.1929, is on the employer to establish wilful negligence of the injured employee. Section 48-102 Comp.St.1929, provides in part that "it shall not be a defense (a) that the employee was negligent, unless and except it shall also appear that such negligence was wilful." Upon failure of the employer to establish wilful negligence on the part of the employee with a reasonable degree of certainty, this allegation of the petition fails.
2. "Malingering, as applied to compensation cases, may be defined as a deception, practiced by a dishonest employee, by feigning, inducing, or prolonging either sickness or injury for the purpose of securing illegal or fraudulent payments therefor under the workmen's compensation law." Great Western Sugar Co. v. Hewitt, 127 Neb. 790, 257 N.W. 61.
3. Where the evidence establishes that the employee accepted all the medical treatments afforded him, followed the instructions of his physician, submitted to examinations required by the employer, and where such treatment was not adequate under the circumstances, the employee is not guilty of malingering.
4. Where an employee is admittedly injured in the course of his employment, as provided for in section 48-101, Comp.St.1929, and compensation was paid, and during the period for which compensation was paid to the employee he submitted to all treatment accorded him, and developed a mental condition, according to the preponderance of the evidence given by medical experts, wherein the patient is firmly convinced that he has a permanent disability, and, due to such mental condition, he honestly and consciously believes that he is suffering pain and that his physical condition is incurable, treatment neglecting this phase of the employee's make-up was lacking and not adequate, through no fault of the employee, and under such circumstances he is not guilty of wilful negligence or malingering.
5. Where compensation has been paid by an employer for a period of more than eight years and then stopped, and an original compensation case is brought by the employee (there being no question that the injury occurred in the course of his employment) to have the degree of his disability and the compensation to be paid therefor determined, and an award is made in conformity with the disability as set out in section 48-121, Comp.St.1929, and an appeal is taken to the district court, and in a petition on appeal the employer pleads facts constituting wilful negligence and fails to prove them with a reasonable degree of certainty, the award of compensation as fixed by the compensation commissioner in such action prevails, and judgment should be entered in such amounts, with credit given to the employer for the amounts paid.
W. G. Ashford, of Homer, and Mark J. Ryan, of South Sioux City, for appellant.
Walter R. Johnson, Atty. Gen., and Herbert T. White, Asst. Atty. Gen., for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is a workmen's compensation case. It is not disputed that the claimant (appellant), a common laborer, aged 39 years, on February 26, 1932, an employee of the department of roads and irrigation of the state of Nebraska, was working on highway No. 20, about a mile and a half west of South Sioux City, Nebraska, with a road grader, to be pulled behind a tractor, and in endeavoring to hitch the grader to a five-ton caterpillar tractor, the tractor backed over the appellant's right foot and right leg. The accident arose out of and in the course of appellant's employment, as provided in section 48-101, Comp.St.1929.
The original action was commenced November 2, 1934, before the compensation commissioner, and on March 4, 1935, the cause was heard. On March 20, 1935, an award was rendered by the commission in favor of the appellant, granting him compensation at the rate of $10.50 per week for the first 300 weeks and $7.09 per week thereafter for the remainder of appellant's life, for a 75 per cent. permanent partial loss of the use of his right arm and right leg. The appellee paid compensation in conformity with this award from February 27, 1932, to February 22, 1940, inclusive, when appellee ceased to pay such compensation. The instant case has been tried, submitted and briefed as an original compensation case.
The appellee did not file an application under section 48-142, Comp.St.1929, on the ground of decrease of incapacity, due solely to the injury, but stopped the payment of compensation. The pleading on appellant's behalf does not attack the procedure in the instant case, but treats the case as an original compensation case.
The transcript reflects the following for the purposes of this action, that an award was made by a judge of the compensation court, filed May 6, 1941, setting forth the appellant's injury occurring in the course of his employment, and finding and decreeing that the plaintiff was temporarily totally disabled from and after February 26, 1932, to and including the 22d day of February, 1933, constituting a period of 51 5/7 weeks, at which time all temporary total disability terminated and ceased, and said temporary total disability was followed immediately by 75 per cent. permanent partial disability of the right leg, and 75 per cent. permanent partial disability of the right arm for a period of 248 2/7 weeks, and thereafter 75 per cent. permanent partial disability for the remainder of appellant's life; that at the time of said accidental injuries, appellant's wages were $21 each week, sufficient to entitle him to compensation at the rate of $14 each week for a period of 51 5/7 weeks for temporary total disability, and compensation at the rate of $10.50 per week for a period of 248 2/7 weeks for disability as hereinbefore set out, and $7.09 per week for the remainder of appellant's life; that the appellant has received compensation in the amount of $4,160.53 for which the appellee should have credit. The hospital expenses and medical fees paid were enumerated. The credit to appellee as designated in the award is $724, as against compensation of $14 per week for 51 5/7 weeks from and after February 26, 1932, to and including February 22, 1933; $2,607 to be credited in amounts paid for permanent partial disability from and after February 22, 1933, 248 2/7 weeks, and $829.53 credited on the amount of $7.09 each week thereafter to the date of the award, as compensation payable during the appellant's lifetime. A waiver of rehearing before the compensation commission and an election to appeal directly to the district court from such award were filed.
The petition on appeal from the compensation court filed in the district court May 19, 1941, set out, in substance, the history of the proceedings, alleging that the court "acted without and in excess of its powers"; the findings of fact are not sustained by the evidence, and the disability under which the appellant labors is not due to the injuries which he sustained, but due to his own failure or unwillingness to allow a normal recovery, and that, had the appellant made any effort on his part to restore the injured member to service, his disability at this time would be negligible.
An answer was filed on May 29, 1941, and an amended and substituted answer on December 1, 1941, by leave of court obtained, in which the appellant admits the exhibits attached to the petition are true and correct copies of the originals filed in the workmen's compensation court; denies that the court acted without and in excess of its powers, and that the findings of fact as set forth are not supported by the record and do not support the order and award; denies that the disability suffered is in any way due to any fault or unwillingness on his part to allow normal recovery, and that he has made a diligent effort to restore the injured member to service, but despite his efforts his disability continues and is a direct result of the injury sustained by him for which the award was made; alleges that since February 26, 1932, appellant has been totally disabled and should be paid compensation on the basis of total disability; alleges that he did not appeal from the original award allowing him but 75 per cent. permanent partial disability for the reason that he believed he would eventually regain the use of his limbs, and that by reason of the permanent total disability he is unable to earn a livelihood, and is entitled to receive compensation at the rate of $14 a week for the remainder of his life, and is therefore entitled to the difference between $10.50 a week, as set forth in the award, and $7.09 permanent disability as set forth therein, and prays for recovery in such amount.
The district court entered judgment June 9, 1942, in substance as follows Setting forth that the appellant was injured in the course of his employment on February 26, 1932; that he sustained an injury to his right foot and right leg, with the result that the fifth metatarsal bone of appellant's right foot was broken and he sustained a soft tissue injury to his right leg; that the appellant was hospitalized for...
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