Wilson v. Brown-McDonald Company

• Decision Date: 04 March 1938
• Docket Number: 30329
• Citation: 278 N.W. 254,134 Neb. 211
• Parties: HAROLD E. WILSON, APPELLANT, v. BROWN-MCDONALD COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

278 N.W. 254

134 Neb. 211

HAROLD E. WILSON, APPELLANT, v. BROWN-MCDONALD COMPANY ET AL., APPELLEES

No. 30329

Supreme Court of Nebraska

March 4, 1938

APPEAL from the district court for Merrick county: LOUIS LIGHTNER JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

1. Section 48-121, Comp.St.1929, after detailing the degree of disability, the awards therefor, and the specific schedule of awards for the loss of certain members of the body, and the loss of use and function of such members, uses this language: " Should the employer and the employee be unable to agree upon the amount of compensation to be paid in cases not covered by the schedule," etc. This language, construed and given a liberal construction, as required within the meaning and interpretation of the workmen's compensation law of Nebraska, includes severe facial disfigurement.

2. Section 11, c. 57, Laws 1935, provides: " All disputed claims for workmen's compensation shall be submitted to the Nebraska workmen's compensation court for a finding, award, order or judgment." This provision held to include cases not covered by the schedule contained in section 48-121, Comp.St.1929.

3. Section 6, c. 57, Laws 1935, provides that the compensation court may adopt all reasonable rules necessary for carrying out the intent and purpose of the act, and shall administer and enforce all the provisions of the Nebraska workmen's compensation law and acts amendatory thereof, except such as are committed to the courts of appellate jurisdiction.

4. In view of the language used in section 48-121, Comp.St.1929, and in section 6, c. 57, Laws 1935, pertinent to a disputed question between the employer and the employee " in cases not covered by the schedule," an appellate court, in trying the case de novo, has power and authority to determine the rights of the respective parties under the law relating to cases not covered by the schedule in such workmen's compensation act.

5. Disfigurement resulting from severe third-degree burns to the face is to be considered in the light of the general statutory purpose to provide compensation for personal injuries, and is within the meaning of the language contained in section 48-121, Comp. St.1929, viz., " in cases not covered by the schedule."

6. It is the consequences of disability flowing from personal injury that the workmen's compensation act of Nebraska seeks to alleviate. Comp.St.1929, §§ 48-101, 48-121.

7. Impairment of ability to earn may result from ineligibility to obtain work to do, as well as from inability to do procurable work.

8. It has long been the policy of this court to give a liberal construction to the workmen's compensation law, so that its beneficent purposes may not be thwarted by technical refinement of interpretation. Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N.W. 797.

9. " A workman, who, solely because of his injury, is unable to perform or to obtain any substantial amount of labor, either in his particular line of work, or in any other for which he would be fitted except for the injury, is totally disabled within the meaning of the workmen's compensation law." Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635.

10. Where the evidence discloses that further medical, hospital and surgical services would not definitely improve the condition of an injured employee, and where such improvement would be conjectural, the employer's liability, under section 48-120, Comp. St.1929, to furnish reasonable medical and hospital services and medicines, as and when needed, ceases.

11. " Where a reasonable controversy exists between an employer and an employee, as to the former's liability under the workmen's compensation act, the employer is not liable for the penalty for waiting time during the time the cause is pending in the courts for final determination." Claus v. DeVere, 120 Neb. 812, 235 N.W. 450.

12. An allowance of attorney's fees to employee's attorney is erroneous, where the evidence discloses that an employer has not refused or neglected to pay compensation, or appealed from an award made to the employee by the workmen's compensation court or the district court. Comp.St.Supp.1937, § 48-125.

Appeal from District Court, Merrick County; Lightner, Judge.

Proceeding under the Workmen's Compensation Act by Harold E. Wilson, employee, opposed by the Brown-McDonald Company, employer, and the Hardware Mutual Casualty Company, insurance carrier. From a judgment affirming an award of the compensation court, the employee appeals and the defendants cross-appeal.

Judgment reversed with directions.

H. G. Wellensiek, for appellant.

Kennedy, Holland, De Lacy & Svoboda and Edwin Cassem, contra.

Heard before GOSS, C. J., ROSE, EBERLY, CARTER and MESSMORE, JJ., and WILLIAM A. DAY, District Judge.

OPINION

MESSMORE, J.

This is an appeal from the district court for Merrick county, wherein such court affirmed an award made by the compensation court, and in addition thereto allowed attorney's fees for the claimant's attorney in the sum of $ 300. The claimant appeals to this court from such award and finding as made by the district court, and the defendants cross-appeal on the question of attorney's fees. The pleadings are proper in form to present the issues contended for in this court.

A brief summary of the evidence, as disclosed by the record, follows: The accident in question occurred on September 7, 1931. The claimant had graduated from high school; had received one and a half years of college education; was 20 years old at the time of the accident; had done retail sales work in a grocery store, clothing store and in obtaining work for a laundry. His wages were $ 75 a month. He had worked steadily for a period of two years. The accident was caused when the claimant was taking some papers to be burned in an incinerator back of the store of the Brown-McDonald Company, and when he put the papers into a barrel that was used as an incinerator there was an explosion, as a result of which he received severe third-degree burns over his entire face. He received emergency treatment, was taken by ambulance to St. Francis Hospital in Grand Island, Nebraska, remained there for three months under the care of doctors; then placed in the care of a plastic surgeon, at Milwaukee, Wisconsin, remained there from January, 1932, until the beginning of August, 1935, a great portion of which time was spent at St. Mary's Hospital in Milwaukee, and subsequently he was sent to a hotel in Milwaukee. The insurance carrier paid the sum of $ 11.54 a week as compensation up to August 10, 1935, when payments ceased. The insurance carrier then endeavored to procure a settlement with the claimant, in which they offered him $ 800 in full settlement, which was declined.

There appears in the record the testimony of John Knickrehm, retail grocer, of E. E. Clark, grocer, of the managers of the Brown-McDonald store and the Penney store, and of L. S. Norstedt, a merchant, and R. Tooley, a merchant, to the effect that they would not employ the claimant in their places of business on account of his facial disfigurement, which is described as "terrible." The only employment that the claimant has had since the accident was invoicing for a few days. Some argument is made to the effect that the claimant has not made a sincere effort to obtain employment. The fact remains that the concerns for whom he worked at the time of his accident, and which employ many people in the different departments of their business, such as bookkeepers, clerks, and deliverymen, have not reemployed the claimant. The plastic surgeon's testimony is that the appearance of claimant's face is steadily improving and the skin is looking better; that the surgical treatments stopped on August 10, 1935, and that the disfigurement would gradually lessen; that it was difficult to estimate the amount of surgical work that may be required, but that a person suffering from facial disfigurement is ordinarily sensitive about it, and where there is some detail work to be done, if it can be done handily after a certain healing period, then it might be the thing to do; that he had not discharged the claimant.

The testimony of the doctor, called for defendant, is, in substance, that the claimant is not suffering from any physical disability and is not physically incapacitated to perform manual labor. The witness believed that the disfigurement could be lessened by a further operation, and that it was a handicap to claimant in employment where he would have to meet the public, but that he had such a personality that people would learn to like him; that certain plastic treatment ought to be had because the "inner angle of his left eye is broadened, that can be brought down, his left eye can be rather easily fixed;" that the condition of his skin is better.

This case is tried de novo in this court. The record discloses that, previous to the award made by the compensation court and the district court, there had been expended compensation to the claimant for 204 weeks amounting to the sum of $ 2,354.16, and in addition thereto medical expenses in the sum of $ 10,924.91, or a total expenditure of $ 13,279.07. The hearing before the compensation court was had on November 25, 1936, award being made on March 16, 1937, granting claimant temporary total disability at $ 11.54 a week from September 7, 1931, to November 25, 1936, less $ 2,354.16 paid, plus $ 190 paid out by the claimant for living expenses, and the compensation court found that claimant was not entitled to compensation for disfigurement and made no allowance for attorney's fees. Claimant then appealed to the district court, praying for a modification and additional compensation; that is, for total...