Akins v. Happy Hour, Inc.

306 N.W.2d 914, 209 Neb. 236, 1981 Neb. LEXIS 900
CourtNebraska Supreme Court
DecidedJune 19, 1981
Docket43765
StatusPublished
Cited by14 cases

This text of 306 N.W.2d 914 (Akins v. Happy Hour, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akins v. Happy Hour, Inc., 306 N.W.2d 914, 209 Neb. 236, 1981 Neb. LEXIS 900 (Neb. 1981).

Opinions

McCown, J.

This is a workmen’s compensation case involving an award against the Second Injury Fund.

The plaintiff was born January 28, 1926. He has a fifth grade education. He lost his left arm at the elbow in an automobile accident in 1952. His employer made arrangements for him to continue working after the automobile accident until the plant was later closed. Thereafter plaintiff worked in various restaurants and bars until 1964 when he purchased the Happy Hour lounge in Omaha, Nebraska. In 1976 he sold the lounge and was retained by the purchaser as an employee with his main duties consisting of running the kitchen and occasionally the bar.

On August 17, 1978, plaintiff sustained a severe cut between the thumb and index finger of his right hand while he was washing dishes. He underwent surgery on two occasions, but the severed tendon did not knit. The stipulated medical testimony is that the second injury resulted in a 45 to 55 percent disability of the thumb, which translates to a 10 to 12 percent disability of the body as a whole. The total physical disability suffered from the combined injuries is a 62 percent permanent disability of the body as a whole.

Plaintiff returned to work in January 1979 and worked until April 1979 when the lounge was closed. Between April 1979 and July 1979, the plaintiff sought employment and applied to between 25 and 30 restaurants but was unsuccessful. In July 1979 plaintiff ultimately obtained a job at a Howard Johnson restaurant, running the kitchen on the midnight shift. Plaintiff is unable to open jars, open the freezer door, [238]*238clean the meat sheer, or pick up small objects. Nevertheless, plaintiff has been able to retain his job at Howard Johnson’s with some assistance from other employees, and was earning as much or more than he was earning at the time of the injury to his thumb.

The Workmen’s Compensation Court, at the initial hearing, found that the second injury resulted in a permanent partial disability to the plaintiff’s right thumb, which, combined with the loss of his left arm in the prior accident, resulted in a 59 percent permanent partial disability to the body as a whole, and that plaintiff had suffered a substantially greater disability than that which would have resulted from the second injury considered alone and of itself. The court awarded plaintiff a 12 percent disability to the body as a whole for the second injury alone against the employer and its insurance company, and 47 percent permanent partial disability to the body as a whole against the Second Injury Fund. On rehearing the Workmen’s Compensation Court found that the plaintiff had failed to prove that he had suffered a substantially greater disability from the combined disabilities than that which would have resulted from the second injury to his thumb considered alone and of itself. The court therefore modified the award by awarding the plaintiff permanent partial disability for the injury to his right thumb against the employer and its insurance carrier and dismissed his petition as to the Second Injury Fund. Plaintiff has 9ipp6^il6(l

The relevant statute is Neb. Rev. Stat. § 48-128 (Reissue 1978). The relevant portion of that statute provides: “If an employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, which is or is likely to be a hindrance or obstacle to his obtaining employment or obtaining reemployment if the employee should become unemployed and which was known to the employer prior to the occurrence of a subsequent compensable injury, receives a subsequent compensable injury resulting in additional [239]*239permanent partial or in permanent total disability so that the degree or percentage of disability caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself; and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability, and for the additional disability the employee shall be compensated out of a special trust fund created for that purpose, which sum so set aside shall be known as the Second Injury Fund.”

The Workmen’s Compensation Court, on rehearing, found that the plaintiff had failed to prove that he had suffered a substantially greater disability than that which would have resulted from the last injury considered alone and of itself, because the evidence showed that the plaintiff had returned to work as a cook and was earning as much as, if not more than, he was earning at the time of the injury.

Disability under the Workmen’s Compensation Act is defined in terms of employability and earning capacity rather than in terms of loss of bodily functions. Johnson v. Village of Winnebago, 197 Neb. 845, 251 N.W.2d 176 (1977).

“Earning power,” as used in Neb. Rev. Stat. § 48-121(2) (Reissue 1978), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the workman to earn wages in the employment in which he is engaged or for which he is fitted. If, after injury, an employee receives the same or higher wages than before injury, it is indicative, although not conclusive, of the fact that his earning power has not been impaired. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

[240]*240While it was entirely proper for the Workmen’s Compensation Court to consider the wages the plaintiff received after the injury, the court, on rehearing, disregarded the evidence which established a reduction in the plaintiff’s earning power and employability. The evidence established not only many attempts to secure employment without success but also established that at least one employer did not believe the plaintiff was capable of performing the job of cook and that other employees would have to carry part of his employment load. When the plaintiff finally found a job it was on the graveyard shift, the only one he could handle due to his injuries. It is apparent that plaintiff’s employability with his combined disabilities is substantially less than it would have been if he had only the injury to his thumb.

The evidence established a substantial reduction in the plaintiff’s capacity to perform the tasks of his employment under his combined disabilities compared with his capacity to perform the tasks of his employment if he had suffered only the injury to his thumb. The evidence also established that plaintiff is unable to perform his job without help to compensate for his injuries. It is also obvious that plaintiff’s ability to hold a job has been substantially reduced. The fact that plaintiff has made extraordinary efforts to overcome his handicap or that an employer has been generous in employing a handicapped individual ought not to destroy his right to benefits under the Workmen’s Compensation Act.

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Akins v. Happy Hour, Inc.
306 N.W.2d 914 (Nebraska Supreme Court, 1981)

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Bluebook (online)
306 N.W.2d 914, 209 Neb. 236, 1981 Neb. LEXIS 900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akins-v-happy-hour-inc-neb-1981.