Werner v. Nebraska Power Co.

• Decision Date: 12 March 1948
• Docket Number: 32382.
• Citation: 31 N.W.2d 315,149 Neb. 408
• Parties: WERNER v. NEBRASKA POWER CO. et al.
• Court: Nebraska Supreme Court

31 N.W.2d 315

149 Neb. 408

WERNER v. NEBRASKA POWER CO. et al.

No. 32382.

Supreme Court of Nebraska

March 12, 1948

Syllabus by the Court.

1. In this, a workmen's compensation case, the cause is considered de novo upon the record and a finding made that plaintiff is permanently and totally disabled as a result of a compensable accident.

2. On the authority of Elliott v. Gooch Feed Mill Co., 147 Neb 612, 24 N.W.2d 561, it is held that defendants are not entitled to a reduction in the amount of compensation payable for a period of time that plaintiff was gainfully employed subsequent to the injury.

3. On the authority of section 48-125, R.S.1943, and Weitz v Johnson, 143 Neb. 452, 9 N.W.2d 788, it is held that the trial court did not err in the allowance of an attorney's fee to plaintiff.

4. On the authority of section 48-125, R.S.1943, and Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571, an attorney's fee is allowed in this court.

Fraser Connolly, Crofoot & Wenstrand, J. V. Benesch, and William H. Wright, all of Omaha, for appellants.

Lee & Bremers, of Omaha, for appellee.

Heard before SIMMONS, C. J. MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and BARTOS and JACKSON, District Judges.

SIMMONS Chief Justice.

Plaintiff secured an award of permanent total disability as a result of a hearing before one judge of the Workmen's Compensation Court. A like award was rendered as a result of a rehearing before the Workmen's Compensation Court. A like award was entered in the district court as a result of a hearing under the provisions of section 48-184, R.S.1943. Defendants appeal. We affirm the judgment of the trial court.

Defendants' first two assignments of error here are: (1) 'The Court erred in refusing to set aside the findings of fact and award made by the Workmen's Compensation Court, which findings of fact are not conclusively supported by the evidence in the Record'; (2) 'The Court erred in affirming the award of the Workmen's Compensation Court, allowing the plaintiff full compensation for permanent total disability.'

Both parties treat these assignments as sufficient to require a review here under the provisions of section 48-185, R.S.1943, that a judgment of the district court may be modified or set aside only upon the ground that 'the findings of fact are not conclusively supported by the evidence as disclosed by the record, and if so found, the cause shall be considered de novo upon the record.'

Defendants ask for trial de novo. Plaintiff submits that the award is conclusively supported by the record, and in any event the award should be affirmed upon trial de novo. This procedure calls for us to review the evidence. If upon that review we find the award is conclusively supported by the evidence, that ends the matter. If, however, as a result of a review of the evidence on a trial de novo we find that the award should be sustained, it is not necessary to determine the question as to whether the award is 'conclusively supported by the evidence.' If we find as a result of a trial de novo that the award should be modified or set aside, then obviously it is not conclusively supported by the evidence. As a practical proposition our review here is de novo upon the record. We so review this evidence. It is a fact question. It is conceded that defendant suffered a compensable accident resulting in a severe injury to the lower spine and back. The dispute is as to whether or not as a result of the accident he suffered an injury to the cervical spine with a resulting disability to shoulders, arms, and hands.

The accident occurred on April 16, 1945. Plaintiff at the time of the accident was 69 years of age, a large man, in good health, and able to do the heavy manual labor involved in concrete or cement work. No illnesses or disabilities are shown, save as to one finger, which is not involved here. Plaintiff was a cement mason, working on a repair job to a concrete wall. He was standing on a scaffold suspended six to nine feet above the surface beneath him. The ground below was covered with coal used in a heating plant. Apparently it sloped from the wall to the ground. The scaffolding broke and plaintiff fell. He testified that he hit the ground in a sitting position. Plaintiff remained in the position in which he fell for a few minutes, was helped up later by fellow employees, and immediately complained of pain in his lower back. He mentioned no other pain. He was taken to the hospital. At the hospital the diagnosis was fractures of the second and third lumbar vertebrae. The doctor making the X-ray on April 17 found 'a definite compression fracture of 1st and probably some damage of the intervertebral disc between the 2nd & the 3rd lumbar vertebrae.'

On April 23, 1945, plaintiff was placed in a cast from legs to neck, not including arms. The diagnosis then was a 'Compression fracture, slight, first lumbar; slight compression--posterior margin, second lumbar at disc region.' Plaintiff remained in this or another cast for some two months when it was removed and he was placed in a steel back brace from his shoulders to hips. He wore this for some months and since has worn a corset that braces his lower back. There is no serious dispute but that this lower back condition is disabling so far as plaintiff's performing hard physical labor is concerned.

We now go to the evidence as to shoulder, arm, and hand injury. Plaintiff testified that after the fall he was lying on his right elbow when he first knew what happened. A fellow workman, testifying for defendants, tried to reconstruct the accident. He testified that in the fall plaintiff could not have come in contact with the plank on which he was standing, but 'could have hit the wall with his shoulder'; that his right shoulder was bruised; and that after hitting the coal in his fall, he slid on the coal for some feet. The hospital records show at time of admission 'No External Evidence of Injury.' Plaintiff testified that after he was in the hospital he had bruised spots on his right shoulder. A physician examined plaintiff in October 1945, before any controversy had arisen with reference to compensation. Plaintiff's complaint was 'Pain in arms.' The physician recites a history given him at that time containing the following: 'During the cast application he lay on his face, his chin resting on the table and slipped off at one time. Pain then radiated from his neck over his shoulders and down both arms to his little and ring fingers, with numbness and weakness developing later.' The same history recites that plaintiff's 'neck started hurting him after the cast was put on, about one week after the injury, not noted before.' Defendants in their reply brief state that plaintiff gave that history to the doctor. The attending doctor does not remember anything unusual happening although there might have been a slight slipping. The cast was put on seven days after the accident.

The bedside charts show that plaintiff was in considerable pain from the beginning of his hospital treatment and was repeatedly given drugs to deaden the pain and induce sleep. The charts show also that beginning with May 5, plaintiff complained of 'pain in left arm,' of 'numbness in left arm,' of pain in left arm not relieved by massage, 'pain in arms,' and 'shooting pains' in shoulders and arms. In the fact of this record the doctor testified that there was no complaint while plaintiff was in the hospital of pain in the cervical or neck region. The evidence is definite that during the first weeks plaintiff was...