Opinion
No. 39094.
Filed January 25, 1974.
1. Workmen's Compensation: Appeal and Error: Evidence. Upon appellate review of a workmen's compensation case in the Supreme Court, the cause will be considered de novo only where the findings of fact are not supported by the evidence as disclosed by the record. 2. ___: ___: ___. On appeal of a workmen's compensation case to the Supreme Court, if there is reasonable competent evidence to support the findings of fact in the trial court, the judgment, order, or award will not be modified or set aside for insufficiency of the evidence. 3. Workmen's Compensation: Trial: Evidence. Where an award in a workmen's compensation case is supported by reasonable competent evidence and the medical testimony is uncontradicted that future medical examinations, treatment, and medicines will be necessary, the employer shall be liable for reasonable medical and hospital services and medicines as and when needed, subject to the approval of the Workmen's Compensation Court.
Appeal from the District Court for Buffalo County: S. S. SIDNER, Judge. Affirmed as modified.
Mitchell Beatty, Larry R. Demerath, and Timothy D. Whitty, for appellant.
Tye, Worlock, Tye, Jacobsen Orr and Kenneth C. Fritzler, II, for appellee.
Heard before WHITE, C. J., McCOWN and NEWTON, JJ., and LYNCH and WARREN, District Judges.
This case was originally tried before one of the judges of the Nebraska Workmen's Compensation Court, who awarded the plaintiff total disability, medical, hospital, certain travel costs, and future medical expenses. The defendant waived rehearing and appealed to the District Court for Buffalo County, which court found that the plaintiff was temporarily totally disabled from August 9, 1969, to August 25, 1972, and thereafter suffered 50 percent permanent disability to the body as a whole. Some expenses were allowed but nothing for future medical services and medication.
The plaintiff was 47 years old at the time of the trial in District Court. She had completed sophomore year of high school, had no special vocational training, had worked since high school in restaurants and kitchens in many capacities, and had owned and operated a small cafe for about one year during 1966 and 1967. On August 8, 1969, while working as a salad lady for the Holiday Inn in Kearney, Nebraska, the plaintiff slipped and fell in a walk-in cooler and suffered a severe low back strain.
The plaintiff testified in substance that her prior employment as a salad lady and banquet waitress required her to be on her feet all day, to bend and stoop, and to lift heavy containers; that she had not worked since the accident but at home she had tried to do dishes, dust, mop, and sweep, all of which bothered her; and that she could not do the work she formerly did at the Holiday Inn. Plaintiff had not applied for employment nor had she attempted to work on a full or part-time basis since the accident.
Dr. Kenneth W. Ellis, an orthopedic surgeon who examined and treated the plaintiff from September 22 1969, until January 1973, and who attempted a fusion which resulted in an incomplete union of the lumbar vertebrae, rated plaintiff's permanent partial disability on August 20, 1970, as 20 percent, later as 40 percent, and at trial estimated her permanent partial disability to be 50 percent of the body as a whole. This surgeon testified that the degree of disability had become more severe but that her symptoms had stabilized by August 1972, and he did not anticipate continued deterioration without intervening factors. He also stated that in his opinion the plaintiff would be unable to do the work she described last doing but could return to at least part-time work at the Holiday Inn for 3 or 4 hours at a stretch if it required no lifting.
Another orthopedic surgeon estimated plaintiffs permanent disability as 25 to 30 percent to her body as a whole and agreed that her condition had stabilized and she should be given a trial at her previous employment for 4 hours a day. The record includes medical reports from several other doctors, but they contain nothing additionally significant.
An employment counselor for the Department of Labor stated that from the testimony he had heard during the trial he considered plaintiff unemployable as a waitress or cook.
The manager of food operations at the Holiday Inn testified that it was not necessary for a salad lady or banquet waitress to do any great amount of lifting, and that her employer hires about 20 part-time restaurant employees.
Counsel for both parties cited several Nebraska cases and argued competently that the factual situation and the medical testimony bring this case within or without their respective interpretations of the term "total disability" for workmen's compensation purposes; however, it is our opinion that this case is subject to the rule that: "Upon appellate review of a workmen's compensation case in the Supreme Court, the cause will be considered de novo only where the findings of fact are not supported by the evidence as disclosed by the record." Gifford v. Ag Lime, Sand Gravel Co., 187 Neb. 57, 187 N.W.2d 285. From a consideration of the entire record, we conclude that the findings of fact and the award of 50 percent permanent disability by the District Court are supported by reasonable competent evidence and therefore should not be considered de novo in this court. If the medical experts are in error relative to their estimates of disability or opinions that the plaintiff's condition has stabilized, an application to modify the award may be submitted pursuant to workmen's compensation statutes. Pavel v. Hughes Brothers, Inc., 167 Neb. 727, 94 N.W.2d 492.
Concerning future medical expenses, the opinion testimony of Dr. Ellis, the attending orthopedic surgeon, that the plaintiff will require some degree of medical attention, examinations, and medications in the future as a result of the accident and back injury is unquestioned. As a matter of fact, it is the only evidence in the record pertaining to this possible need, and the District Court decree is silent on the subject. "Section 48-120, R.R. S. 1943, provides: `The employer shall be liable for reasonable medical and hospital services and medicines as and when needed, * * * subject to the approval of the compensation court, * * *.'" Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624. Therefore, in this particular the award of the District Court should be modified.
AFFIRMED AS MODIFIED.