Scott v. State
| Decision Date | 20 December 1939 |
| Docket Number | 30656. |
| Citation | 289 N.W. 367,137 Neb. 348 |
| Parties | SCOTT v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
A proceeding under section 48-142, Comp.St.Supp.1939, to modify a previous settlement agreement or an award of the compensation or district court, payable periodically for more than six months, on which the payments have been completed and to recover additional compensation for an increase in disability, can only be brought within one year from the time the employee knows or is chargeable with knowledge that his condition has materially changed, and that there has been such a substantial increase in his disability as to entitle him to additional compensation.
Appeal from District Court, Gage County; Falloon Judge.
Proceeding under the Workmen's Compensation Law by C. B. Scott special administrator of the estate of Louise Scott, deceased, opposed by the State of Nebraska, employer, to recover additional compensation on ground of increased disability. From a judgment dismissing the proceeding on ground that it was barred by limitations, the claimant appeals.
Affirmed.
Vasey & Mattoon, of Beatrice, for appellant.
Walter R. Johnson, Atty. Gen., and Don Kelley, Asst. Atty. Gen., for appellee.
Heard before SIMMONS, C. J., and EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.
This is a proceeding to recover additional compensation under the workmen's compensation law, on the ground of increased disability. The workmen's compensation court held that, since the increase in disability was known to plaintiff more than a year before the filing of her petition, the claim was barred under section 48-138, Comp.St.1929. On appeal to the district court, the proceeding was similarly dismissed. Plaintiff, who was 73 years old, had died in the meantime, and revivor was had in the name of the special administrator of her estate, who has appealed to this court.
Plaintiff, Louise Scott, fell on a slippery floor in April, 1926, while employed as an attendant at the Nebraska Institution for the Feeble Minded, at Beatrice. She sustained an impacted hip fracture, which resulted in some bone absorption, a somewhat rotated union, and a 1 1/2 inch shortening of the left leg. A petition for compensation was filed before the compensation commissioner, and, on October 27, 1926, an award was entered, allowing her 161 1/4 weeks compensation, for 75 per cent. permanent partial loss of use of her left leg, from August 1, 1926. Payments on this award were completed in September, 1929. She had continued in her employment from July, 1926, following the injury, to December, 1935, when her advanced age and physical condition made it impossible for her longer to do the work.
The record shows that for some time prior to December, 1935, she was becoming increasingly disabled. The major portion of the increase was probably due to her age, but the disability in her leg appears also to have increased. The evidence which she offered, however, clearly indicates that she knew there had been a material change in the condition of her leg prior to the time her employment was terminated in December, 1935. As early as 1929, after the payments on the original award were completed, she claimed to be entitled to further compensation, and her son, who is now the special administrator of her estate, had consulted an attorney for her, about reopening the award. No proceedings, however, were instituted at that time. It is not particularly important here whether the disability in her leg had so increased in 1929 that she would then have been entitled to additional compensation, for, in any event, the son admits that, for at least a year and a half to two years prior to 1935, it was quite obvious that his mother was " breaking," and that the disability to the leg had been materially increasing. The present proceedings were not instituted until November, 1937.
The compensation court and the district court, as has already been indicated, took the view that in this situation the proceeding was barred under section 48-138, Comp.St.1929, which provides: In the case of latent injuries, we have held, of course, that the proceeding may be commenced within the statutory time after the employee first has knowledge that the accident has caused a compensable disability. Travelers' Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449, and subsequent cases.
It is plaintiff's contention that the limitation provision in section 48-138 has no application to this proceeding; that where a compensation award, payable periodically for more than six months, has once been entered in the compensation or the district court, even though the payments thereunder may have been completed, the court has the power under section 48-142, Comp.St.Supp.1939, at any time, without limitation, to modify the award and to make an additional allowance for an increase in disability; that section 48-142 is wholly independent of section 48-138 and that a proceeding thereunder is not controlled by the limitation...
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