Schmidt v. City of Lincoln

• Decision Date: 09 February 1940
• Docket Number: 30652.
• Parties: SCHMIDT v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

290 N.W. 250

137 Neb. 546

SCHMIDT v. CITY OF LINCOLN.

No. 30652.

Supreme Court of Nebraska.

February 9, 1940

Syllabus by the Court.

1. Where it appears that the plaintiff in a workmen's compensation case may have sustained a partial loss of use of his leg, while the testimony in the record is directed to the question of general industrial disability only, the cause may be remanded to have it determined whether any impairment of the physiological functions of the leg exists, and, if so the extent thereof, or whether the purported loss of use is wholly affected and cultivated.

2. A demand for payment of medical expenses under the workmen's compensation law is a claim for compensation within the meaning of section 48-133, Comp.St.Supp. 1939.

3. A demand for payment of medical expenses, made within six months after the occurrence of an injury and under such circumstances as to manifest the intention to claim the benefits of the workmen's compensation law, is sufficient to support the employee's right to institute proceedings within a year, to recover every benefit which has then accrued under the law.

4. Where any finding of fact, upon which the award of the district court in a workmen's compensation case depends is not conclusively supported by the evidence, it is our duty on appeal to consider the entire cause de novo upon the record. Comp.St.Supp. 1939, § 48-174.

Appeal from District Court, Lancaster County; Broady, Judge.

Proceeding under the Workmen's Compensation Law by Otto H. Schmidt, claimant, against the City of Lincoln. From a judgment of the district court dismissing the proceeding, the claimant appeals.

Judgment reversed, and cause remanded to the district court, with directions to remand the proceeding to the compensation court for proceedings in accordance with opinion.

C. L. Rein, of Lincoln, for appellant.

Clarence G. Miles, City Atty., and Frederick H. Wagener, Asst. City Atty., both of Lincoln, for appellee.

Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

JOHNSEN, Justice.

This is a proceeding under the workmen's compensation law, which was dismissed by the district court and is here on an appeal by plaintiff.

Plaintiff claims to have been injured on August 29, 1936, while employed by defendant as a city fireman. He says that he fell on his right hip and buttock, while carrying a hose line into the basement at a fire. No one saw the accident, and the record seems to imply a doubt in the minds of some of the other firemen whether it ever occurred. He was on a twenty-four hour shift at the time and remained on duty all day and night following, apparently without making any report of it to his officers. In the afternoon of the next day, however, which was his day of rest, he called his family physician, and the latter telephoned the captain of his company that he would not be on duty the following morning, because of his leg. The personal records of the fire department contain conflicting entries, there being at one place a notation, " O. Schmidt, off sick," and, at another, an entry, " O. Schmidt off--alleged injury." Six days later plaintiff was released by his doctor and was given a certificate that he was able to resume his duties. At that time a notation was made, " O Schmidt in from sick leave."

Defendant contends that the evidence does not satisfactorily establish that plaintiff ever sustained an accident, but this contention we shall answer with the simple statement that the facts above detailed, when considered with the findings and diagnosis of plaintiff's doctor on the day after the fire, are sufficiently convincing that an accident occurred. Some of the evidence by which it is sought to establish the other necessary elements of plaintiff's case is not so convincing, however.

Plaintiff says that he has been disabled ever since the date of the accident, although he claims also that his condition became progressively worse after he was discharged from the fire department some months later. He testified that, from the time of the accident, he never was able to do his previous work, was given lighter duties, was relieved from drills, and was assisted in his tasks by other firemen. This statement, however, is disproved by his officers and fellow firemen. The evidence clearly establishes that he performed all of his previous duties, without any manifestation of disability or handicap, from the time he returned to work on September 6, 1936, until his discharge on January 3, 1937. He was discharged because the officers regarded him as an agitator and a troublemaker. Among other things, he had previously cursed an officer when he was requested to perform a certain task, and, on the occasion of the fire involved in this proceeding, he had officiously attempted to give orders, without actual authority to do so. He knew that he was in disfavor and sensed that it was only a question of time until he lost his job. At one time he declared to another fireman, " They don't give me no raw deal; I'm going to the hospital and go in a cast, and I know I'll beat them." This statement is not without significance, in the light of subsequent developments.

From September 6, 1936, until after his discharge, plaintiff had neither sought nor apparently needed further medical attention. Following his discharge, he began to walk with a limp and to use a cane. He claims that he limped while he was still employed at the fire station, but the testimony of thirteen other firemen disproves this assertion. On July 30, 1937, just before the present proceeding was commenced, he again consulted Dr. George Lewis, his family physician, for the first time since September 5, 1936. About thirty days later, and after compensation proceedings had been instituted, Dr. Lewis began to administer diathermy treatments. In due season, he was sent to the office of Dr. Arthur L. Smith, and still later to that of Dr. Czar Johnson, for examination, report, and expert testimony. Drs. Lewis, Smith, and Johnson all gave him blue ribbons for total and permanent disability. The cause of the disability was declared to be traumatic neuritis of the right sciatic nerve, a right sacro-iliac strain, and a rotation of the bodies of the lumbar vertebrae.

The compensation court directed an examination to be made by a medical advisory board consisting of Dr. Clayton Andrews, Dr John C. Thompson, and Dr. Charles H. Arnold. The members of this board were of the opinion that plaintiff was not suffering from any disability attributable to the accident. Dr. Arnold testified that, while plaintiff walked with a slight limp and rotated the toes of his right foot outward about 5 per cent. more than those of his left foot, this would not disable him in his work, nor could he discover any physical cause for it. He and the other two members of the advisory board did not believe that there could have been any recurrence of the injury so long after the accident had occurred and under the circumstances that plaintiff claimed. Dr. James E. M. Thomson, an orthopedic specialist, also testified that he could find no evidence of a sacro-iliac strain or of traumatic neuritis. As he put it " I tried my best to find something." He and Dr. Arnold and Dr. Rowe, a roentgenologist, further declared that the X-ray films produced by Dr. Smith did not...