Spiker v. John Day Co.

• Decision Date: 22 September 1978
• Docket Number: No. 41776,41776
• Citation: 270 N.W.2d 300,201 Neb. 503
• Parties: Violet M. SPIKER, conservator of the estate of Harold Spiker, incompetent, Appellee and Cross-Appellant, v. JOHN DAY CO., a corporation, and Aetna Life and Casualty, an Insurance Corporation, Appellant and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 300

270 N.W.2d 300

201 Neb. 503

Violet M. SPIKER, conservator of the estate of Harold Spiker, incompetent, Appellee and Cross-Appellant, v. JOHN DAY CO., a corporation, and Aetna Life and Casualty, an Insurance Corporation, Appellant and Cross-Appellees.

No. 41776.

Supreme Court of Nebraska.

Sept. 22, 1978.

Syllabus by the Court

1. The Workmen's Compensation Act should be liberally construed so as to accomplish the beneficent purposes of the act. The policy of the act should not be thwarted by technical refinements of interpretation.

2. An employer is liable to an injured workman for reasonable medical and hospital services and medicines which are necessary to relieve or cure the injuries suffered by the workman.

3. The liability of an employer to an injured workman for reasonable medical and hospital services and medicines which are necessary as a result of an injury is not limited to only those situations in which the employee may be cured or his disability reduced by further treatment.

4. Ordinarily, a workman's right to recover the cost of medical and hospital services and medicines depends upon his having paid for the services or incurred a liability to pay for them.

5. Ordinarily, the Workmen's Compensation Court has no right to adjudicate a claim of a third party against an employer for services furnished to an injured employee unless the third party is a party to the action.

6. An injured workman may recover the reasonable value of necessary nursing care furnished to him by his wife while he was cared for at home.

7. A finding of the Workmen's Compensation Court that is clearly wrong will be reversed.

8. Where there is a reasonable controversy between the parties, an injured workman is not entitled to the statutory penalties for waiting time.

Knudsen, Berkheimer, Endacott & Beam, Lincoln, for appellant and cross- appellees.

Law Offices of Kenneth Cobb, P.C. and Kenneth Cobb, Lincoln, for appellant and cross-appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

BOSLAUGH, Justice.

This is an appeal in a proceeding under the Workmen's Compensation Act. The plaintiff, Harold A. Spiker, was employed by the defendant, John Day Co. as a salesman. On August 11, 1971, the plaintiff was severely injured in an automobile accident which arose out of and in the course of his employment.

Following the accident the defendant and its insurance carrier paid compensation to the plaintiff for total disability and paid the plaintiff's medical and hospital expenses through March 3, 1972. This action was commenced on September 28, 1976, to recover medical and hospital expenses which the plaintiff incurred after March 3, 1972. The plaintiff's wife, who was appointed as conservator for the plaintiff on March 21, 1977, has been substituted as plaintiff. However, for convenience, the injured workman will be referred to as the plaintiff.

At the hearing before a single judge of the compensation court the plaintiff recovered an award for total disability, the award to continue for so long as the plaintiff remained totally disabled. The court found that the plaintiff suffered from chronic focal organic brain syndrome with behavioral disorder due to cerebral trauma sustained at the time of the accident. Although the plaintiff's condition had stabilized, it was probable that he would require institutional care with adequate nursing care and medical management for the rest of his life. The defendants were ordered to reimburse the plaintiff, the Veterans' Administration, and Medicare for expenses in the amount of $53,432.47 and were ordered to pay for such future medical, institutional, and hospital care as was reasonably necessary. The defendants refused to accept the findings and award and requested a rehearing before the compensation court.

Upon rehearing the compensation court found that the plaintiff was totally and permanently disabled as a result of the accident; that none of the plaintiff's hospital confinements on or after March 3, 1972, were required for the treatment of any condition or disease caused or aggravated by the accident; that there was no substantial connection between the accident and subsequent urinary tract infections, bladder tumor, enlarged prostate, respiratory infections, or hemiplegia; and that all expenses attributable to the treatment of those conditions and diseases were not compensable.

The compensation court further found, one judge dissenting, that the plaintiff required continual custodial or nursing home care as a result of the brain injury, irrespective of other conditions or diseases, and that such care will be required for the rest of the plaintiff's life. The court awarded the plaintiff an amount equivalent to the cost of custodial care in a nursing home for the time in which he had been cared for at home. The court also ordered the defendants to reimburse the Veterans' Administration in the amount of $18,909.40, and Medicare in the amount of $2,812.80, for hospital, medical, surgical, and nursing home services which had been furnished to the plaintiff. The defendants have appealed and the plaintiff has cross-appealed from the award on rehearing.

The principal question presented by the appeal is whether an injured workman who is totally and permanently disabled and requires nursing care as the result of an accident and injury which arose out of and in the course of his employment is entitled to recover for the cost of such care although it will not cure or lessen his disability.

The issue here is not one of fact but is a question of law. There is no dispute concerning the plaintiff's right to compensation or his need for nursing care for the remainder of his life. In construing the act it is important to remember that the Workmen's Compensation Act should be liberally construed so as to accomplish the beneficent purposes of the act. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N.W.2d 303. The policy of the act should not be thwarted by technical refinements of interpretation.

At the time of the accident on August 11, 1971, section 48-120, R.R.S.1943, provided in part as follows: "The employer shall be liable for reasonable medical and hospital services and medicines as and when needed, and in addition to devices necessary for treatment, the first prosthetic devices, subject to the approval of the compensation court, not to exceed the regular charge made for such service in similar cases * * *.

"The court shall have the authority to determine the necessity, character, and sufficiency of any medical services furnished or to be furnished * * *."

In Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165, this court said: "The burden placed upon the employer by section 48-120, R.R.S.1943, is designed to Relieve or cure the physical injuries suffered by the employee." (Emphasis supplied.)

Although there is some conflict in authority, most of the cases which have considered the question hold that an employer is liable for medical, surgical, and hospital services required by an injured workman even though his disability is total and permanent and there is no hope of a cure. See, 2 Larson, The Law of Workmen's Compensation, § 61.14, p. 10-474; 10 Schneider's Workmen's Compensation (Perm.Ed.), § 2016, p. 137.

In W. J. Newman Co. v. Industrial Commission, 353 Ill. 190, 187 N.E. 137, the employee was paralyzed from the hips down as a result of a fractured spine. His disability was total and permanent and could not be reduced by any further treatment. His condition required constant nursing care. The Illinois Supreme Court held that the care which he required was necessary to relieve him from the effects of the injury and that the employer's liability continued so long as medical, surgical, and hospital services were required in order to relieve the injured employee from the effects of his injury.

In Castle v. City of Stillwater, 235 Minn. 502, 51 N.W.2d 370, the employee had sustained injury to the cervical spine which resulted in permanent total disability. The Supreme Court of Minnesota held that the employer was required to provide physiotherapy, massage, and heat treatments because such treatments were necessary to relieve the employee from the effects of the injury even though such treatments could not effect a cure or reduce the disability of the employee.

In Howard v. Harwood's Restaurant Co., 40 N.J.Super. 564, 123 A.2d 815, the employee was totally and permanently disabled as a result of an assault by a deranged fellow employee. The injured employee required care in a nursing home, or at home with nurses, and medical supervision to prevent complications such as pneumonia, kidney and skin infections, and to take care of her bowels, bladder, and nutrition. The New Jersey Court held that the employer was liable for such services under a statute requiring "medical, surgical and other treatment, and hospital service as shall be necessary to Cure and relieve the workman of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible" even though the employee could not be cured by such treatment, and would never be able to get out of bed or be able to take care of herself. (Emphasis supplied.)

In Stephens v. Crane Trucking, Inc. (Mo.), 446 S.W.2d 772, the employee was totally and permanently disabled as a result of injuries suffered in a truck accident. The Supreme Court of Missouri held that the employee was entitled to nursing care under a statute authorizing medical, surgical, and hospital treatment, including nursing where required " 'to cure and relieve' from the effects of the injury." The court said: "In Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109, the insurer contended that the statutory terms 'cure' and 'relieve' were used in the conjunctive and that if the employee could not be 'cured' of his injuries the commission lacked power to...