Wingate v. Laundry
| Citation | 244 N.W. 635,123 Neb. 844 |
| Decision Date | 21 October 1932 |
| Docket Number | 28553 |
| Parties | DOROTHY WINGATE, APPELLEE, v. EVANS MODEL LAUNDRY ET AL., APPELLANTS |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. Where an employee is subjected to a painful and unnecessary operation, by reason of which the period of disability is prolonged and tenderness and weakness of the parts increased the employee should be allowed compensation therefor.
2. In case of a major surgical operation, section 48-120, Comp. St. 1929, provides that the employee may designate the surgeon, and when the family physician so chosen is allowed to assist that one selected by the employer or insurance carrier, and is then allowed by the operating surgeon to care for post-operative difficulties, and continues to treat such employee, such charges, if proved reasonable, should be paid by the employer.
3. 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 (Comp. St. 1929, § 48-101 et seq.).
4. It is the duty of the district court in compensation cases to make a final determination of the character of the disability and of the full amount to be paid, the times of payment, and to make such other provisions as are necessary to make a full and final disposition of the case.
Appeal from District Court, Douglas County; W. G. Hastings, Judge.
Proceedings under the Workmen's Compensation Act by Dorothy Wingate, claimant, against the Evans Model Laundry, employer, and the Maryland Casualty Company, insurer. From a judgment of the district court awarding compensation to the claimant, on appeal from a decision of the compensation commissioner dismissing the claim, the employer and insurer appeal.
Judgment reversed, and the cause remanded.
Story & Thomas, for appellants.
Anson H. Bigelow, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is a claim for compensation by Dorothy Wingate, a laundry employee, for an accident in a laundry. It is admitted that she suffered injury to her back, the exact nature of which is in dispute. She was operated on, and was paid compensation for nine weeks. Upon a hearing before the compensation commissioner, her cause of action was dismissed. Upon an appeal to the district court, a decree awarded her, first, $ 185 for the services of her physician, second, compensation at the rate of $ 13.33 a week from October 26, 1931, for temporary total disability, to be paid until further order of the court, and, third, the defendants were directed to furnish her proper medical treatment by physicians selected or approved by her for the purpose of removing all or part of her disability, to each of which the appellants object.
Dorothy Wingate, an unmarried woman, was employed, at $ 20 a week, as floor lady, or assistant to the superintendent, by the Evans Model Laundry, of Omaha, and met with an accident on Friday, August 14, 1931. She had about 45 girls under her supervision, but was required, in addition to making out payrolls, to do a commercial checker's work on hotel and commercial linen. On the above day she had to sack, weigh and check five large bags of wiping rags for the Ford Motor Company. She had packed and checked five large sacks, and in attempting to take the last one, weighing 102 pounds, to the scales, across a slippery floor, she twisted and strained herself in lifting the bag to get it on the scales. She felt a sudden pain in her abdomen and back, became faint, sat down with her head on the sack for several minutes. She told her superintendent right then that she had hurt herself and ought to have help to lift such bags, but the superintendent started an argument about it, and said: "If you don't want to do it you can go home; that is your job." Saturday she worked until about 2 o'clock, lying down during the noon hour. She was in bed all day Sunday, but Monday morning was not able to work.
Dr. Schleier, the company's surgeon, not being available at the time, the manager sent her to Dr. Max Flothow, a specialist in diseases of women, who told her she had torn the muscles and support of her abdominal organs loose, and directed her to go home and go to bed and stay off her feet, and taped up her abdomen. She told him the laundry company had no one to take her place and she would have to work until she could break somebody else in to take her job. She stayed there the remainder of that week and the next, breaking in a second girl, who did the heavy work.
Dr. Flothow, who had been giving her treatments, ordered her to St. Catherine's Hospital. She complained only of a severe pain in her back, but he diagnosed her case as a "prolapsed uterus, second degree, traumatic in origin." Dr. Schleier, a specialist in surgery, could find no evidence of prolapse, and advised against the operation, which advice Miss Wingate did not learn of until long after the operation. Her pain has never been relieved. The defendants paid Dr. Flothow for the major operation which he insisted upon performing upon August 31, paid the hospital, and paid Miss Wingate nine weeks' compensation, but refused to pay for the services of the doctor of her choice, who was Dr. Egan, who had assisted in the operation and subsequently treated her, at Dr. Flothow's request, for anaemia secondary to operation, and tried to build up her strength, and fitted her with a belt, which did not relieve her, but which the insurance carrier paid for.
She endeavored to get work at various places, but could not get or hold a job, as the severe pain in her back was continuous, and she could not even do housework to help pay for her board and room. She would be up one day and go back to bed the next day.
The company doctors failing to benefit her or relieve her injured back in any degree, upon December 1, 1931, she went to see Dr. Sucha, an orthopedic surgeon, who told her she had torn muscles in the back and that she could never lift anything again, and that at least part of her injury was permanent.
On February 14, 1932, Miss Wingate, becoming greatly worried and getting no relief, came to Lincoln and consulted the firm of Drs. Orr & Thomson, orthopedic experts. Many X-ray photographs were taken by Dr. Rowe, the Roentgenologist of Bryan Memorial Hospital.
Dr. J E. M. Thomson, after a complete examination, aided by many X-rays, testified that the operative wound in her abdomen had closed with a keloid formation, raised, thickened, hard scar, which is tender to touch or move, the tenderness extending out on both sides, more on the right side, and somewhat spastic. Her whole back is tender; the X-rays showed she had a...
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