Smith v. Fremont Contract Carriers, Inc.

• Decision Date: 09 November 1984
• Docket Number: No. 84-145,84-145
• Parties: Melvin E. SMITH, Appellant and Cross-Appellee, v. FREMONT CONTRACT CARRIERS, INC., et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 211

358 N.W.2d 211

218 Neb. 652

Melvin E. SMITH, Appellant and Cross-Appellee, v. FREMONT CONTRACT CARRIERS, INC., et al., Appellees and Cross-Appellants.

No. 84-145.

Supreme Court of Nebraska.

Nov. 9, 1984.

Syllabus by the Court

1. Workmen's Compensation: Jurisdiction. The Workmen's Compensation Court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute.

2. Workmen's Compensation: Judgments. A decree or award in a workmen's compensation case is final unless the petitioner seeking to reopen the case can bring the case within the terms of any statute to that effect.

3. Workmen's Compensation: Courts: Judgments. In civil cases a court of general jurisdiction has inherent power to vacate or modify its own judgment during the term at which it was rendered. However, this is a rule of the common law and does not apply to statutory tribunals such as the Workmen's Compensation Court.

4. Workmen's Compensation: Statutes: Attorney Fees. An amendment to a workmen's compensation statute which provides for the payment of attorney fees relates to the remedy and affects procedure only, and does not interfere with substantive rights. Therefore, such fees as are provided may be taxed as an item of costs in entering judgment on a claim that arose before the amendatory act was passed.

5. Workmen's Compensation: Attorney Fees. In a workmen's compensation case an employee may not withhold evidence of medical expense at the first hearing, inadvertent though it might be, and then claim on rehearing that an attorney fee should be awarded because the award was increased.

6. Workmen's Compensation. In cases involving disability arising from a stroke, the employee has the burden of establishing by a preponderance of the evidence that exertion in his employment, in reasonable probability, contributed in some material and substantial degree to cause the injury. The presence of a preexisting disease or condition would enhance the degree of proof required to establish that an injury arose out of and in the course of employment.

7. Workmen's Compensation. Where an injury arising out of and in the course of employment combines with a preexisting condition to produce disability, though absent the preexisting condition no disability would have resulted, recovery can be had by the employee.

8. Workmen's Compensation: Appeal and Error. Findings of fact made by the Nebraska Workmen's Compensation Court on rehearing have the same effect as a jury verdict in a civil case, and an award may not be set aside where the findings are supported by the evidence. The facts are not reweighed on appeal.

William G. Line of Kerrigan, Line & Martin, Fremont, for appellant and cross-appellee.

Walter E. Zink II of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees and cross-appellants.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

HASTINGS, Justice.

The plaintiff employee has appealed from an award of the Nebraska Workmen's Compensation Court which denied him benefits for waiting time, attorney fees, and interest. The defendant employer and its insurer, Great West Casualty Company, have cross-appealed from the award generally claiming that the injury which plaintiff suffered was not compensable.

On January 11, 1983, the plaintiff was a 54-year-old man employed by the defendant Fremont Contract Carriers, Inc., driving a tractor-trailer rig. While driving on an interstate highway in Indiana, his trailer brakes locked, the rig went off the road, he applied the tractor brakes, and they locked. He then lost control of the unit; it moved across the median, over a large sign, past the southbound lanes, and came to rest in a ditch. A short time after the accident, the plaintiff noticed that he could not put change back in his pocket, he had difficulty putting money in the coffee machine, he could not hold a cup of coffee, and he had a "lost" feeling. His condition remained about the same for the next couple of days. By Saturday, after the plaintiff had returned home, he was taken to the hospital in Fremont, and then to Methodist Hospital in Omaha the same evening. During his stay in the hospital, he was diagnosed as having suffered a cerebrovascular accident and was subjected to surgery to clean out his right carotid artery, which was causing paralysis and weakness of his left arm and hand.

After the defendants had refused to pay any compensation benefits, plaintiff filed a petition in the Workmen's Compensation Court. Following a hearing before Judge Vrana, an award was entered in favor of the plaintiff for benefits for disability and medical expenses. A rehearing before a three-judge panel was held at the request of the plaintiff because certain items of medical expense, by inadvertence, were not offered in evidence by the plaintiff at the first hearing. An award on rehearing was entered on January 24, 1984, which in effect affirmed the original award, plus adding the items of expense originally omitted.

The plaintiff then filed a motion to amend the award to provide for penalty payments, attorney fees, and interest under the provisions of Neb.Rev.Stat. § 48-125 (Supp.1983), which had been authorized by 1983 Neb.Laws, L.B. 18. The compensation court denied the request on three grounds: (1) L.B. 18, under which the plaintiff claimed these benefits, was not effective until August 26, 1983, after the accident, and those provisions were substantive in nature and therefore not applicable to this situation; (2) The plaintiff was not entitled to these benefits because a reasonable controversy existed; and (3) The court had no jurisdiction to entertain such a motion because, after rehearing, the compensation court may modify its award only for the purpose of correcting any ambiguity or clerical error as provided for in Neb.Rev.Stat. § 48-180 (Reissue 1978).

We agree with the compensation court as to its last contention. The Workmen's Compensation Court is a tribunal of limited and special jurisdiction and has only such authority as has been conferred on it by statute. 81 Am.Jur.2d Workmen's Compensation § 80 (1976). A decree or award in a compensation case is final unless the petitioner seeking to reopen the case can bring the case within the terms of any statute to that effect.

We previously have referred to § 48-180, which provides for the modification of awards because of ambiguity or clerical error. Neb.Rev.Stat. § 48-141 (Reissue 1978) permits the modification of an award under certain circumstances, not applicable here, because of the increase or decrease of disability.

In Nebraska, in civil cases, a court of general jurisdiction has inherent power to vacate or modify its own judgment during the term at which it was rendered. Barney v. Platte Valley Public Power and Irrigation District, 147 Neb. 375, 23 N.W.2d 335 (1946). This is a rule of the common law. Schubach v. Hammer, 117 Kan. 615, 232 P. 1041 (1925); 49 C.J.S. Judgments § 229 (1947). That rule does not apply to statutory tribunals such as the compensation court.

However, this does not end our inquiry. If the failure to award the benefits complained of by the plaintiff was either the breach of a mandatory duty or an abuse of discretion on the part of the compensation court, we must grant relief.

Under the provisions of § 48-125 existing at the date of this injury, there seems to be little doubt under our prior holdings but that the plaintiff was not entitled to either statutory penalties or attorney fees because of a sustainable finding of the existence of a reasonable controversy. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981). To the same effect, that section did not authorize the award of an attorney fee when the employee was the appellant. Akins v. Happy Hour, Inc., supp. op. 209 Neb. 748, 311 N.W.2d 518 (1981).

However, at the time of the rehearing, October 13, 1983, L.B. 18 was in effect. The question then becomes, Was this a substantive or procedural change so as to make the critical effective date the day of the accident or the day of the hearing?

We previously have decided this issue. Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922), involved a situation where the employee was injured March 12, 1918. At that time, the predecessor of § 48-125, Rev.Stat. § 3666 (1913), provided only that compensation under the provisions of that "article shall be payable periodically in accordance with the methods of payment of the wages of the employe at the time of his injury or death." That law was amended by 1917 Neb.Laws, ch. 85, § 9 1/2, p. 208, to provide for the 50-per centum penalty for all delinquent payments. It was not until a further amendment, 1919 Neb.Laws, ch. 91, § 4, p. 234, that § 3666 was to provide for the allowance of a reasonable attorney fee whenever the employer neglects to pay compensation for 30 days after the injury.

In Western Newspaper Union, supra, the trial court allowed an attorney fee. On appeal that award was upheld in the following language at 307, 187 N.W. at 921: "Though this provision was inserted by amendment after defendant was injured, the attorney's fee relates to the remedy and may be taxed as an item of costs in entering judgment on a claim that arose before the amendatory act was passed."

The authority of Western Newspaper Union was followed in Solomon v. A.W. Farney, Inc., 136 Neb. 338, 286 N.W. 254 (1939), which held that a similar amendment affected procedure only and did not interfere with substantive rights. It cited with approval at 348, 286 N.W. at 260, the following syllabus point from Western Newspaper Union: " 'In a proceeding under the workmen's compensation act the allowance of a reasonable attorney's fee in the district court affects the remedy only and may be taxed as an item of costs, though the injury for which compensation is allowed occurred before the legislature...