Riedel v. Smith Baking Co.
| Decision Date | 07 July 1948 |
| Docket Number | 32457. |
| Citation | 33 N.W.2d 287,150 Neb. 28 |
| Parties | RIEDEL v. SMITH BAKING CO. et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. When a judge of the Workmen's Compensation Court pursuant to section 48-178, R.S.1943, makes and enters a judgment which he is authorized by law to make, such judgment shall be conclusive on all parties at interest when no appeal is taken therefrom as provided by section 48-170, R.S.1943, except as otherwise provided for by statute.
2. The statute, section 48-141, R.S.1943, authorizing a decrease or increase on the ground of incapacity due solely to the injury, limits the basis for the modification to that increase or decrease of incapacity which is due solely and only to that violence to the physical structure of the body which resulted from the accident, and which increase or decrease has occurred since the award was rendered.
3. Upon an application to modify an award under the workmen's compensation statutes, the burden of proof rests upon the petitioner to establish by a preponderance of the evidence that the disability has increased, decreased, or terminated as alleged.
4. The pleadings and evidence have been reviewed and it is held that there has not been an increase of plaintiff's incapacity due solely to his injury arising since the award of compensation was rendered, which plaintiff seeks to modify.
Cline Williams & Wright, of Linsoln, for appellants.
Lester L. Dunn and Chauncey E. Barney, both of Lincoln, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is a workmen's compensation case. The plaintiff, while in the employ of a baking company on September 21, 1941, received personal injuries arising out of and in the course of his employment when his left arm was caught in an automatic proofing machine which he was operating at the time. When he was released from the machine he suffered pain in his left arm and neck and felt dizzy, but was not unconcious. At that time he informed the doctor that he had pain in his back which appeared to be in the right side and in the middle thereof. He was taken to a hospital and his left arm was amputated about six inches below his shoulder. A few days later he told the doctor he had a rupture. He was operated on for this condition.
On January 13, 1942, the plaintiff instituted an action in the Nebraska Workmen's Compensation Court, and on January 28, 1942, filed an amended petition therein. The amended petition alleged in substance that as a direct and proximate result of the accident the plaintiff sustained injuries to his left arm, requiring amputation of the same above the elbow, and a double hernia involving an extensive tearing and disarrangement of plaintiff's abdominal muscles and other internal and bodily injuries; that plaintiff was conveyed to a hospital and there attended by physicians, submitting to the amputation of his left arm and to an operation for the purpose of repairing a double hernia; that plaintiff was paid compensation by defendants at the rate of $15 per week for the period from September 22, 1941, to November 9, 1941, inclusive, a period of seven weeks; that the loss of the plaintiff's left arm and the general weakness and loss of use of the plaintiff's abdominal muscles occasioned by the double hernia and other internal bodily injuries sustained by the plaintiff resulted in the total and permanent disability of the plaintiff; further, that plaintiff was skilled in his trade as a baker and as a result of the injuries sustained, will always continue to be unable to obtain employment in his trade and in any other trade or profession for which he would be otherwise fitted except for said injuries; and prayed that the plaintiff be awarded compensation for permanent total disability as provided by law, plus all hospital and medical expenses and other and further benefits as provided by law.
The evidence given by the plaintiff at the hearing detailed the accident and injuries received, and was to the effect: That since the accident the plaintiff was unable to work or lift, and was told by the attending doctor not to lift. He was unable to stand on his feet or walk for any period of time, and was forced to sit down on account of his back. The bakery trade in which he was skilled required him to use his hands and to be on his feet most of the time, and he would be unable to carry on that occupation.
The award, entered February 11, 1942, by a judge of the Nebraska Workmen's Compensation Court, allowed the plaintiff $15 per week for a period of seven weeks from and after September 21, 1941, ending November 10, 1941, on account of temporary total disability; allowed the plaintiff the sum of $15 each week for a period of 225 weeks from and after November 10, 1941, on account of total and permanent loss of the use and function of his left arm; and found that the medical and surgical attention furnished the plaintiff, and all hospitalization furnished had been paid by defendants. There was no appeal taken from this award. On March 9, 1946, the plaintiff acknowledged receipt of all payments as provided for by the award, as shown by exhibit 6.
On June 15, 1946, the plaintiff filed a petition in the Nebraska Workmen's Compensation Court setting forth the accident of September 21, 1941, the previous litigation and the award rendered; further alleged that the plaintiff was still totally disabled and as a result of the injuries sustained, as pleaded in paragraph 4 of the petition, in substance as follows: That as a direct and proximate result of said accident the plaintiff sustained injuries to his left arm, requiring amputation of the same above the elbow, and a double hernia involving an extersive tearing and disarrangement of the plaintiff's abdominal muscles, and other internal and bodily injuries; and alleged in paragraph 5 of the petition, '* * * that plaintiff is still totally disabled and as a result of the injuries sustained as aforesaid plaintiff is now totally and permanently disabled; that plaintiff has incurred hospital and medical expense as a result of the injuries and disabilities and will continue to require hospital and medical expenses'; that defendants refuse to pay further compensation benefits; and plaintiff prayed that he be awarded compensation for total and permanent disability as provided by law, plus hospital and medical benefits and such other and further benefits as provided by law.
On June 25, 1946, defendants filed an answer to the petition, admitting the allegations relating to the previous litigation and award, and that the award had been paid in full; alleged that the plaintiff had been paid all the compensation and furnished all the benefits to which he was entitled under the Nebraska Workmen's Compensation Act on account of the accident of September 21, 1941; denied that the plaintiff was suffering from any disability due and traceable to the accident of September 21, 1941, other than that for which an award of compensation was made by a judge of the Nebraska Workmen's Compensation Court on February 11, 1942; and alleged that any disability from which the plaintiff was suffering was due to causes in no way connected with the employment by the baking company.
The cause was tried by a judge of the Nebraska Workmen's Compensation Court on November 1, 1946. On November 6, 1946, the judge of the compensation court dismissed the plaintiff's cause of action for the reason that the evidence adduced at the hearing was insufficient to sustain the plaintiff's contention that he was totally disabled as a result of the accident and injuries, and that plaintiff's present disability, other than the loss of his left arm, was due to natural causes and advanced years and was not affected or due to the accident and injury, as alleged in plaintiff's petition.
On November 13, 1946, the plaintiff filed an application for rehearing before the Workmen's Compensation Court based on the following grounds: (1) That the evidence offered by plaintiff showed that plaintiff had never been able to work on any productive work since the accident; (2) that plaintiff had developed a total and permanent disability as a result of the accident and injury which at the time of the award of February 11, 1942, was thought only to consist of the double hernia and loss of hand and arm; (3) that the plaintiff had developed a total permanent disability which at the time of the award of February 11, 1942, was unforeseen and undiscernible; and (4) that the accident and injuries sustained have now culminated into total and permanent disability.
Plaintiff filed an amended petition, setting forth that at the time of the hearing before the first judge of the Nebraska Workmen's Compensation Court on or about February 10, 1942, it was thought and expected that the plaintiff would fully recover except for the loss of the plaintiff's left arm and hand; that plaintiff's disability has now developed and culminated into a total and permanent disability; and prayed compensation for total and permanent disability.
The defendants' answer to the amended petition admitted the award entered by a judge of the compensation court on or about February 11, 1942; that the same had been paid in full admitted the defendants refused to pay additional compensation; alleged that the plaintiff had been paid all of the compensation and benefits he was entitled to under the Nebraska Workmen's Compensation Act; denied the plaintiff's disability, if any, was due and traceable to the accident of September 21, 1941; alleged any disability from which the plaintiff was suffering was due to causes in no way connected with the plaintiff's employment with the baking company; ...
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