Wilson Concrete Co. v. Rork
| Decision Date | 10 February 1984 |
| Docket Number | No. 83-125,83-125 |
| Citation | 343 N.W.2d 764,216 Neb. 447 |
| Court | Nebraska Supreme Court |
| Parties | WILSON CONCRETE COMPANY, Appellee, v. Darrell RORK, Appellant. |
Syllabus by the Court
1. Workmen's Compensation. The statute authorizing an increase in a workmen's compensation award limits the basis for modification to that increased incapacity due solely and only to the compensable accident.
2. Workmen's Compensation. Before recovery may be had for an increase of incapacity due solely to the injury, within the meaning of Neb.Rev.Stat. § 48-141 (Reissue 1978), the applicant must prove by a preponderance of the evidence that his incapacity has been increased; that is, that there now exists a material and substantial change for the worse in the applicant's condition--a change in circumstances that justifies a modification, distinct and different from that for which an adjudication had been previously made.
3. Workmen's Compensation: Appeal and Error. In reviewing findings of fact in workmen's compensation cases, the Supreme Court is not free to weigh the facts anew. The findings of the compensation court have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong.
John A. Wagoner, Grand Island, for appellant.
Kenneth H. Elson, Grand Island, for appellee.
This is an appeal from the Nebraska Workmen's Compensation Court, which dismissed the defendant's application to modify a previous disability award. We affirm.
The defendant, Darrell Rork, was employed as a dispatcher and batch man by the plaintiff, Wilson Concrete Company. On February 5, 1979, the defendant suffered injuries while squatting in a manhole attempting to thaw frozen pipes with a steam hose. As a result of this accident the defendant was awarded, on rehearing, temporary total disability from February 8, 1979, until January 26, 1980, and thereafter 25-percent permanent partial disability to the body as a whole. The rehearing proceeding was commenced March 26, 1981, and the award was entered July 6, 1981.
On April 8, 1982, the defendant commenced an action in the compensation court to obtain a modification of the award of July 6, 1981. On August 5, 1982, the compensation court found that the defendant had failed to prove by a preponderance of the evidence that his incapacity had increased. On January 5, 1983, the case was tried on rehearing, and the compensation court again found the defendant had failed to prove by a preponderance of the evidence that his incapacity had increased. This is the determination from which the defendant appeals to this court.
Modification of workmen's compensation awards is governed by Neb.Rev.Stat. § 48-141 (Reissue 1978), which states in part: "[T]he amount of any ... award payable periodically for six months or more may be modified as follows: ... at any time after six months from the date of the ... award, an application may be made by either party on the ground of increase or decrease of incapacity due solely to the injury...."
That statute has consistently been applied to place the burden of proving by a preponderance of the evidence on the applicant for modification that the increase in his incapacity was due solely and only to the injury resulting from the original accident. Sidel v. Spencer Foods, 215 Neb. 325, 338 N.W.2d 616 (1983); Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492 (1959); Chadd v. Western Cas. & Sur. Co., 166 Neb. 483, 89 N.W.2d 586 (1958).
The defendant-applicant Rork contends the compensation court erred in failing to find him totally and permanently disabled, based upon the loss of earning power and because of the continuous suffering of pain which limits his employment opportunities. Rork further argues that in a modification proceeding in a workmen's compensation case, the whole question of the employee's physical condition can again be inquired into as of that time.
While Rork is correct about the law, he is in error with regard to his interpretation of the law as it applies to this case. It is true that in a modification proceeding the whole question of an employee's physical condition can again be inquired into, Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976), but before recovery may be granted for an increase of incapacity due solely to the injury, the applicant must prove by a preponderance of the evidence that incapacity has increased; that is, that there now exists a material and substantial change for the worse in the applicant's condition--a change in circumstances that justifies a modification, distinct and different from that for which an adjudication has been previously made. Chadd v. Western Cas. & Sur. Co., supra.
The argument presented by Rork seems to be...
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