Williams v. Dobberstein
| Decision Date | 29 March 1968 |
| Docket Number | No. 36809,36809 |
| Citation | 157 N.W.2d 776,182 Neb. 862 |
| Parties | Orville WILLIAMS, Appellant, v. Al DOBBERSTEIN, d/b/a Dobberstein Roofing Company and United States Fidelity and Guaranty Company, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. If an employee suffers an injury, which appears to be slight, but which is progressive in its course, and which several physicians were unable to correctly diagnose, his failure to file claim, or bring suit within the time limited by law, will not defeat his right to recovery, if he gave notice and commenced action within the statutory period after he had knowledge that compensable disability resulted from the original accident.
2. Under the Nebraska Workmen's Compensation Act, the period of limitation provided in section 48--137, R.S.Supp., 1965, runs from the time it is reasonably apparent that a compensable injury has been sustained, if the employee is aware that the disability is due to his employment.
Dier & Ross, Kearney, for appellant.
H. L. Blackledge, Kearney, for appellees.
Heard before WHITE, C.J., and CARTER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
This is a workmen's compensation case. The one judge compensation court entered judgment for the plaintiff. On appeal, the district court reversed and entered judgment for defendants on the ground that the action was not commenced within 1 year from the date of the accident. The plaintiff has appealed.
On September 4, 1965, plaintiff was operating a swing boom which was used to haul gravel up to the roof where he was working. The boom was an A-shaped steel boom, approximately 6 or 7 feet tall. While the plaintiff was operating the boom, it tipped over pinning him between the boom and the wheelbarrow in which the gravel was to be dumped. The other employees removed the boom from the plaintiff and he rested about an hour and then returned to his work. Plaintiff reported the accident to his employer the same day, but continued to work as usual the remainder of that day and each working day thereafter until December 11, 1965. He did not to any doctor until that date when he went to see his own physician, Dr. Peck. Plaintiff testified that during the period from September 4 to December 11, 1965, the pain kept getting worse and that because of the pain he couldn't lift things as he had before, and that he 'just figured it was soreness and it would eventually work out.' Dr. Peck put the plaintiff in the hospital in traction from December 15 to 20, 1965. Thereafter, Dr. Peck referred him to Dr. Gogela, a neurologist. The plaintiff thereafter went to a chiropractor in Holdrege for treatment. On February 21, 1966, the defendant compensation insurance carrier arranged to have plaintiff examined for evaluation by Dr. Yost. Dr. Yost's report of March 8, 1966, stated: Dr. Yost concluded that he did not feel that the plaintiff's symptoms 'have stabilized so that a definitive disability evaluation can be made.' Plaintiff returned to work for his employer on June 5, 1966, and worked until the latter part of December 1966. During November 1966, the plaintiff went to Dr. House, an orthopedic surgeon in Grand Island, who had a myelogram taken and determined that plaintiff had an intervertebral disc protrusion. The plaintiff filed his petition in the Workmen's Compensation Court on December 1, 1966. He was operated on in January 1967, and returned to work for his employer once more on June 14, 1967, doing the same type of work he had done prior to the accident. His permanent partial disability was determined to be 12 percent of the body as a whole.
The sole issue presented is whether or not the action was barred by the 1-year statute of limitations, section 48--137, R.S.Supp., 1965. The district court concluded that the plaintiff had failed to prove that his injury was latent and progressive, and that he knew of the injury and that it was progressing from the date of the injury on September 4, 1965.
It is the defendants' position that since the plaintiff knew that he had an accident, and had pain which he associated with the accident; therefore the injury cannot be latent or progressive, and the statute of limitations began to run on the date of the accident. We cannot agree on either count.
As early as Clary v. R.S. Proudfit Co. (1933), 124 Neb. 582, 247 N.W. 417, this court said that 'a latent accidental injury, seeming at first to be trifling and...
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