Opinion
No. 41453.
Filed March 15, 1978.
1. Workmen's Compensation. Generally, permanent total disability can only be held to exist where the workman is unable to get, hold, or do any substantial amount of remunerative work, either in his previous occupation or in any other established field of employment for which he is fitted. 2. ___. Whether or not the plaintiff is totally and permanently disabled, and is entitled to receive the maximum allowable benefits, is a question of fact. 3. ___. The findings of fact made by the Workmen's Compensation Court after rehearing shall have the same force and effect as a jury verdict in a civil case. 4. Workmen's Compensation: Appeal and Error. The findings of fact made by the Workmen's Compensation Court after rehearing will not be set aside on appeal unless clearly wrong. 5. ___. ___. In testing the sufficiency of evidence to support findings of fact made by the Workmen's Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor, and he should have the benefit of every inference that can reasonably be drawn therefrom.
Appeal from the Nebraska Workmen's Compensation Court. Affirmed.
Robert G. Decker and Mino St. Lucas, for appellant.
Joe P. Cashen and John K. Green of Kennedy, Holland, DeLacy Svoboda, for appellees.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
This is a workmen's compensation case. The plaintiff sought a determination that he was entitled to continued disability benefits claimed due by reason of his alleged total disability as the result of an accident arising out of and in the scope of his employment. On December 8, 1976, the single judge Workmen's Compensation Court entered an order granting the plaintiff continued disability benefits. On April 14, 1977, the three-judge Workmen's Compensation Court on rehearing found that the plaintiff failed to prove he was totally and permanently disabled. The plaintiff has appealed. We affirm the judgment of the Workmen's Compensation Court.
That the plaintiff's injury arose out of and in the scope of his employment is undisputed; nor does the record disclose any unpaid medical or hospital expenses. The sole issue on appeal is the correctness of the Workmen's Compensation Court's finding that the plaintiff failed to prove he was totally and permanently disabled. The plaintiff has received a total of 300 weeks temporary total disability benefits. If the plaintiff is not totally and permanently disabled, then he has received the maximum compensation benefits allowable for less than permanent total disability. 48-121, R.R.S. 1943.
Where an employee is totally unable to perform the duties of former employment or work of like nature, he is entitled to recover for permanent total disability. Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960). Permanent total disability can only be held to exist where the workman is unable to get, hold, or do any substantial amount of remunerative work, either in his previous occupation or in any other established field of employment for which he is fitted. Elliott v. Gooch Feed Mill Co., 147 Neb. 612, 24 N.W.2d 561 (1946).
Whether or not the plaintiff is totally and permanently disabled, and is entitled to receive the maximum allowable benefits, is a question of fact. Section 48-185, R. S. Supp., 1976, provides that, "The findings of fact made by the Workmen's Compensation Court after rehearing shall have the same force and effect as a jury verdict in a civil case."
At the time of the hearings, the plaintiff was 33 years old. The plaintiff started construction work when he was 18 years old. The plaintiff testified that in his occupation as a construction worker, he had mixed mortar, carried bricks and blocks, handled 16- to 20-foot planks to build scaffolds, and dug footings. He had climbed scaffolds and used a wheelbarrow. In brick laying he would handle concrete blocks weighing 40 to 60 pounds each and he stated it was not uncommon to lay 200 to 300 of these blocks per day. Occasionally larger blocks weighing 500 pounds had to be moved and placed by hand. The plaintiff further testified that his work involved reaching, climbing stairs, and working on uneven ground or surfaces.
The plaintiff testified he had worked off and on for the defendant for a period of 9 to 10 years before the accident. While employed by the defendant, he became interested in becoming a bricklayer and started in an apprenticeship program and went to school. On the date of the accident, September 19, 1970, he was employed by the defendant as an apprentice bricklayer earning $4.825 per hour.
Following the accident, the plaintiff felt pain in his lower back. He was hospitalized and underwent surgery. He did not improve. Another operation was recommended but the plaintiff chose not to have it. This decision was considered a reasonable one.
The plaintiff described himself as a rather strong individual before the accident. He stated that prior to September 19, 1970, he had not been injured. The plaintiff testified that since his injury he lifted very little, sometimes had difficulty driving a car, and used to swim but had not been swimming since his accident. The plaintiff testified that on some days he has to soak in water and cannot get out of bed without help. He stated that his wife would sometimes have to help him get out of bed and dress. He testified he sometimes has leg cramps and trouble walking. The plaintiff testified that he attempted to return to do the same work but could not do the work. He testified he had attempted rehabilitation, but that nothing had happened. Ted Kisicki, business agent for the bricklayers' union, testified jobs are difficult to get for members with physical impairments.
Reports from two physicians were introduced into evidence. Dr. Louis F. Tribulato, in reports dated February 28, 1972, and January 22, 1975, concluded that the plaintiff is totally disabled. Dr. Bernard L. Kratochvil, in reports dated November 21, 1974, and February 12, 1976, gave the plaintiff a 15 percent permanent partial disability rating. In a report dated January 3, 1975, Dr. Kratochvil stated, in his opinion, the plaintiff "could do work that does not require excessive bending, weight bearing, or lifting."
Roger Helle, a Pinkerton detective hired by the defendant, testified he had observed the plaintiff swimming, racing short distances, diving or jumping from a diving board, engaging in water horseplay, and shopping for and climbing in and out of used cars. He testified he observed the plaintiff lifting, placing, and removing bicycles from the trunk of a car, removing a spare tire, placing it in the back seat of a car, and subsequently tossing the spare into the trunk of a vehicle he was operating. Mr. Helle stated that he observed nothing which appeared to cause the plaintiff's actions to be restrictive in any manner.
In Hyatt v. Kay Windsor, Inc., 198 Neb. 580, 254 N.W.2d 92 (1977), we held that "* * * the findings of fact made by the Nebraska Workmen's Compensation Court after rehearing will not be set aside on appeal unless clearly wrong."
In testing the sufficiency of evidence to support findings of fact made by the Workmen's Compensation Court after rehearing, the evidence must be considered in the light most favorable to the successful party. Every controverted fact must be resolved in his favor, and he should have the benefit of every inference that can reasonably be drawn therefrom. Salinas v. Cyprus Industrial Minerals Co., 197 Neb. 198, 247 N.W.2d 451 (1976).
We cannot say that the finding of the Workmen's Compensation Court is clearly wrong. There is sufficient evidence to support its conclusion.
The judgment of the Workmen's Compensation Court is correct and is affirmed.
AFFIRMED.