Spiker v. John Day Co.

270 N.W.2d 300, 201 Neb. 503, 1978 Neb. LEXIS 811

• Court: Nebraska Supreme Court
• Decided: September 22, 1978
• Docket: 41776
• Status: Published

Opinions

Boslaugh, J.

This is an appeal in a proceeding under the Workmen’s Compensation Act. The plaintiff, Harold A. Spiker, was employed by the defendant, John Day Co. as a salesman. On August 11, 1971, the plaintiff was severely injured in an automobile accident which arose out of and in the course of his employment.

Following the accident the defendant and its insurance carrier paid compensation to the plaintiff for total disability and paid the plaintiff’s medical and hospital expenses through March 3, 1972. This action was commenced on September 28, 1976, to recover medical and hospital expenses which the plaintiff incurred after March 3, 1972. The plaintiff’s wife, who was appointed as conservator for the plaintiff on March 21, 1977, has been substituted as plaintiff. However, for convenience, the injured workman will be referred to as the plaintiff.

At the hearing before a single judge of the compensation court the plaintiff recovered an award for total disability, the award to continue for so long as the plaintiff remained totally disabled. The court found that the plaintiff suffered from chronic focal organic brain syndrome with behavioral disorder due to cerebral trauma sustained at the time of the accident. Although the plaintiff’s condition had stabilized, it was probable that he would require institutional care with adequate nursing care and medical management for the rest of his life. The defendants were ordered to reimburse the plaintiff, the Veterans’ Administration, and Medicare for expenses in the amount of $53,432.47 and were ordered to pay for such future medical, institutional, and hospital care as was reasonably necessary. The defendants refused to accept the findings and award and requested a rehearing before the compensation court.

Upon rehearing, the compensation court found that the plaintiff was totally and permanently disabled as a result of the accident; that none of the plaintiff’s hospital confinements on or after March 3, 1972, were required for the treatment of any condition or disease caused or aggravated by the accident; that there was no substantial connection between the accident and subsequent urinary tract infections, bladder tumor, enlarged prostate, respiratory infections, or hemiplegia; and that all expenses attributable to the treatment of those conditions and diseases were not compensable.

The compensation court further found, one judge dissenting, that the plaintiff required continual custodial or nursing home care as a result of the brain injury, irrespective of other conditions or diseases, and that such care will be required for the rest of the plaintiff’s life. The court awarded the plaintiff an amount equivalent to the cost of custodial care in a nursing home for the time in which he had been cared for at home. The court also ordered the defendants to reimburse the Veterans’ Administration in the amount of $18,909.40, and Medicare in the amount of $2,812.80, for hospital, medical, surgical, and nursing home services which had been furnished to the plaintiff. The defendants have appealed and the plaintiff has cross-appealed from the award on rehearing.

The principal question presented by the appeal is whether an injured workman who is totally and permanently disabled and requires nursing care as the result of an accident and injury which arose out of and in the course of his employment is entitled to recover for the cost of such care although it will not cure or lessen his disability.

The issue here is not one of fact but is a question of law. There is no dispute concerning the plaintiff’s right to compensation or his need for nursing care for the remainder of his life. In construing the act it is important to remember that the Workmen’s Compensation Act should be liberally construed so as to accomplish the beneficent purposes of the act. Marlow v. Maple Manor Apartments, 193 Neb. 654, 228 N. W. 2d 303. The policy of the act should not be thwarted by technical refinements of interpretation.

At the time of the accident on August 11, 1971, section 48-120, R. R. S. 1943, provided in part as follows: “The employer shall be liable for reasonable medical and hospital services and medicines as and when needed, and in addition to devices necessary for treatment, the first prosthetic devices, subject to the approval of the compensation court, not to exceed the regular charge made for such service in similar cases * * *.

“The court shall have the authority to determine the necessity, character, and sufficiency of any medical services furnished or to be furnished * *

In Newberry v. Youngs, 163 Neb. 397, 80 N. W. 2d 165, this court said: “The burden placed upon the employer by section 48-120, R. R. S. 1943, is designed to relieve or cure the physical injuries suffered by the employee.” (Emphasis supplied.)

Although there is some conflict in authority, most of the cases which have considered the question hold that an employer is liable for medical, surgical, and hospital services required by an injured workman even though his disability is total and permanent and there is no hope of a cure. See, 2 Larson, The Law of Workmen’s Compensation, § 61.14, p. 10-474; 10 Schneider’s Workmen’s Compensation (Perm. Ed.), §2016, p. 137.

In W. J. Newman Co. v. Industrial Commission, 353 Ill. 190, 187 N. E. 137, the employee was paralyzed from the hips down as a result of a fractured spine. His disability was total and permanent and could not be reduced by any further treatment. His condition required constant nursing care. The Illinois Supreme Court held that the care which he required was necessary to relieve him from the effects of the injury and that the employer’s liability continued so long as medical, surgical, and hospital services were required in order to relieve the injured employee from the effects of his injury.

In Castle v. City of Stillwater, 235 Minn. 502, 51 N. W. 2d 370, the employee had sustained injury to the cervical spine which resulted in permanent total disability. The Supreme Court of Minnesota held that the employer was required to provide physiotherapy, massage, and heat treatments because such treatments were necessary to relieve the employee from the effects of the injury even though such treatments could not effect a cure or reduce the disability of the employee.

In Howard v. Harwood’s Restaurant Co., 40 N. J. Super. 564, 123 A. 2d 815, the employee was totally and permanently disabled as a result of an assault by a deranged fellow employee. The injured employee required care in a nursing home, or at home with nurses, and medical supervision to prevent complications such as pneumonia, kidney and skin infections, and to take care of her bowels, bladder, and nutrition. The New Jersey court held that the employer was liable for such services under a statute requiring “medical, surgical and other treatment, and hospital service as shall be necessary to cure and relieve the workman of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible” even though the employee could not be cured by such treatment, and would never be able to get out of bed or be able to take care of herself. (Emphasis supplied.)

In Stephens v. Crane Trucking, Inc. (Mo.), 446 S. W. 2d 772, the employee was totally and permanently disabled as a result of injuries suffered in a truck accident. The Supreme Court of Missouri held that the employee was entitled to nursing care under a statute authorizing medical, surgical, and hospital treatment, including nursing where required “to cure and relieve from the effects of the injury.” The court said: “In Brollier v. Van Alstine, 236 Mo. App. 1233, 163 S. W. 2d 109, the insurer contended that the statutory terms ‘cure’ and ‘relieve’ were used in the conjunctive and that if the employee could not be ‘cured’ of his injuries the commission lacked power to order the insurer to furnish treatment to ‘relieve’ him. The court held: ‘ * * * such a position is untenable. The two words do not have identical meaning and the Legislature must have intended that both words should be given effect, else it would not have used both. * * * The words as used in the statute must be given their usual and well recognized meaning, and the statute must be liberally construed. Claimant * * * may be “relieved,” that is, given comfort, succor, aid, help, and ease, in his suffering; but he cannot be “cured” or “restored to soundness” after his injury.’ 163 S. W. 2d 1. c. 115 [7, 8]. So it is with Mr. Stephens — he is entitled to nursing services which ‘relieve him in his otherwise helpless bedfast condition even though there is no further course of ‘medical’ treatment in anticipation of a ‘cure’ or restoration to soundness.” See, also, Di Giorgio Fruit Corp. v. Pittman (Fla.), 49 So. 2d 600; Loomis v. Travelers Ins. Co. (La. App.), 169 So. 2d 544; Orrick Stone Co. v. Jeffries (Okla.), 488 P. 2d 1243.

The defendants rely upon Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N. W. 254; Paulsen v. Martin-Nebraska Co., 147 Neb. 1012, 26 N. W. 2d 11; Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N. W. 2d 387; and Halbert v. United States F. & G. Co., 185 Neb. 775, 178 N. W. 2d 781, in which cases it was stated that the employer’s liability under section 48-120 to furnish reasonable medical and hospital services and medicines, as and when needed, ceases when further medical, hospital, and surgical services would not definitely improve the condition of the injured employee and improvement would be conjectural. None of these cases involved an employee who had suffered a brain injury which produced total permanent disability. The issues involved in those cases was whether the workman was entitled to recover the expense of further surgical procedure where it was conjectural whether such procedure would be of any benefit to the workman. In the Halbert case the workman was allowed to recover the expense of surgery to his left foot even though the operation had been of questionable value, proved to be unsuccessful, and actually increased his disability. In the Peek case the employee had sustained a brain injury but this court determined “no necessity for further surgical or psychiatric treatment was shown.” None of these cases are controlling or applicable here.

In Gilmore v. State, 146 Neb. 647, 20 N. W. 2d 918, the employee was totally and permanently disabled as the result of an accident on April 7, 1936, in which he fell from the rear of a truck and injured his spine. The injury resulted in total permanent disability on March 31,1941. In a proceeding commenced August 25, 1941, the employee recovered an award for total disability and medical, surgical, and hospital care. No appeal was taken from this award by the employer. The employee was paid compensation for total disability until his death on September 27, 1944. The employer refused to pay for medical and hospital care for the employee after November 15, 1942. An application for additional benefits filed on July 24, 1944, resulted in an award for the medical and hospital expenses incurred by the employee from November 15, 1942, until his death, which award was affirmed by the District Court and this court. We held that the medical and hospital expense incurred by the employee “from and after the accident and resulting injuries until his death, were necessary and directly connected with the accident of April 7, 1936,’’ and were compensable.

In Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N. W. 2d 624, the employee had suffered multiple injuries to his right arm, both feet, left leg, and spine with resulting bowel and urinary difficulties as a result of his injuries. He was determined to be permanently partially disabled as a result of the accident and the probability was recognized that he would become totally disabled. Three judges of this court were of the opinion he was then totally and permanently disabled. It was undisputed that his condition would deteriorate with the passage of time and there was evidence he would need the services of an orthopedist and urologist for the rest of his life. He was awarded compensation by this court for temporary total disability for 149 4/7 weeks; 65 percent permanent partial disability for 150 2/7 weeks; and 17 1/2 percent permanent partial disability for the two-member injury for the rest of his life. With respect to his right to future medical expenses under section 48-120, R. R. S. 1943, we said: “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, * * *.’ The undisputed evidence indicates plaintiff will require medicines, and medical and hospital services in the future as a result of his injuries. If and when such items are required, they shall, subject to approval by the compensation court, be supplied at defendants’ expense. See Gilmore v. State, 146 Neb. 647, 20 N. W. 2d 918.”

The employee’s right to future medical expenses in the Shotwell case was not in any way dependent upon some hope of a “cure” or a reduction in disability. The employee had then reached his maximum recovery and it was apparent his condition would worsen in the future rather than improve. Nevertheless, he was awarded future medical and hospital services and medicines as and when needed to be supplied at the expense of the employer.

The evidence in this case establishes that the plaintiff requires nursing care on a permanent basis as a direct result of the brain injury sustained in the accident on August 11, 1971. The plaintiff is entitled to recover the cost of such care under section 48-120, R. R. S. 1943.

The defendants further contend the trial court erred in awarding the plaintiff an amount equivalent to the cost of custodial care in a nursing home as a substitute for reimbursement for home care, and in ordering the defendants to reimburse the Veterans’ Administration and Medicare for services furnished to the plaintiff.

Neither the Veterans’ Administration nor Medicare, nor any agency concerned with that program, were parties to the action. There was no evidence that the plaintiff had incurred any liability for services furnished by the Veterans’ Administration or Medicare. It is clear that the plaintiff had no claim for reimbursement for services furnished by the Veterans’ Administration and Medicare and the compensation court had no jurisdiction to determine any right of reimbursement that either the Veterans’ Administration or Medicare might have as against the defendants. That portion of the award ordering the defendants to reimburse the Veterans’ Administration and Medicare was erroneous and is reversed.

In Claus v. DeVere, 120 Neb. 812, 235 N. W. 450, this court held that an injured workman could not recover for his wife’s services as a nurse which were furnished to him while he was cared for at home. There is much authority to the contrary in other jurisdictions and a majority of this court is now of the opinion that the decision in Claus v. DeVere, supra, should be overruled for the reasons stated in the concurring opinion of Brodkey, J. The plaintiff is entitled to an award for the reasonable value of the nursing care furnished to him by Mrs. Spiker while he was cared for at home together with the reasonable expense of the nurses and aides who were employed to assist Mrs. Spiker in caring for the plaintiff during the time that he was at home. This does not include the cost of additions to the plaintiff’s home.

The cross-appeal contends the compensation court erred (1) in finding the hospital confinements after March 3, 1972, were not directly related to the accident; (2) in finding there was no causal connection between the accident and the plaintiff’s urinary tract infections, enlarged prostate, respiratory infections, and hemiplegia; (3) in failing to compensate the plaintiff’s wife for home nursing care; (4) in failing to award a portion of the cost of adding a room to the plaintiff’s home to enable him to be cared for at his home; (5) in failing to award the Veterans’ Administration the fair and reasonable value of the hospital care furnished to the plaintiff; and (6) in failing to award the statutory penalty and attorney’s fees as provided in section 48-125, R. R. S. 1943.

The fourth and fifth contentions of the cross-appeal are without merit for reasons which have been stated before.

The evidence shows that following the accident on August 11, 1971, the plaintiff was hospitalized at Bryan Memorial Hospital. He was discharged from the hospital on October 12, 1971, and readmitted on November 1, 1971. He was transferred to Madonna Professional Care Center on January 6, 1972. He was readmitted to the hospital on January 14, 1972, and transferred to the Veterans’ Administration Hospital on March 3, 1972. Since March 3, 1972, he has been in a Veterans’ Administration Hospital, Eastmont Manor, the Americana Nursing Home, Bethesda Hospital, Lincoln General Hospital, or Milder Manor Nursing Home except for 171 days when he was cared for at his home.

On January 26, 1972, Dr. John D. Baldwin, a psychiatrist who had been assisting with the treatment of the plaintiff, wrote to the plaintiff’s wife and attorney concerning the future care and treatment of the plaintiff. Dr. Baldwin stated that although the plaintiff’s condition had now stabilized, it was probable that he would require institutional care for the rest of his life in a long-term psychiatric facility with adequate nursing personnel and medical management. Dr. Baldwin emphasized that the plaintiff’s condition might deteriorate as he became aged and that he would need continual medical management and medications.

On February 18, 1972, the defendant insurance carrier wrote to the plaintiff’s lawyer stating that further medical payments for the plaintiff would be terminated after March 3, 1972. Apparently, March 3, 1972, was an arbitrary date selected by the insurance carrier and the termination was actually based upon Dr. Baldwin’s letter of January 26, 1972.

When the plaintiff was first hospitalized following the accident, one of the injuries for which he was treated was blood in his urine. The treatment for this condition necessitated the insertion of a catheter which was left in place for several weeks. Thereafter, the plaintiff had a series of urinary difficulties including incontinence, infections of the urinary tract, strictures, and retention. Various procedures were performed including cystoscopy and trans-urethral resection.

In the course of treatment it was discovered that the plaintiff had a small bladder tumor and enlargement of the prostate. The tumor was not related to the accident in any way. The enlargement of the prostate was not related to the accident except that it combined with his injuries to complicate his urinary problems and the procedures undertaken to correct that condition were done in an effort to relieve the incontinency and infections which were related to the brain injury sustained in the accident.

Since the accident the plaintiff has been treated by Dr. Donald Purvis, a specialist in internal medicine; Dr. Bruce McMullen, a specialist in internal medicine; Dr. John Baldwin, a psychiatrist; Dr. Louis Gilbert, a urologist; Dr. Guy Matson, a physician; Dr. David J. Gogela, a specialist in neurosurgery; Dr. Carlos Mota, a surgeon and urologist; Dr. Julia Hopkins, a specialist in internal medicine; Dr. Douglass Decker, a neurologist; and Dr. George Hachiya, a psychiatrist. All these physicians were called as witnesses by the plaintiff and testified in his behalf. Their testimony established that the injury to the plaintiff’s brain produced a general debilitating effect and resulted in his bowel and urinary difficulties.

The testimony of the treating physicians established that the urinary infections were directly related to the brain injury. The only evidence to the contrary was the testimony of Dr. Harold Ladwig, a neurologist, who had not examined or treated the plaintiff and whose testimony was based entirely upon an examination of records.

The evidence is nearly conclusive that the urinary tract infections were the result of the brain injury and the treatments utilized in attempting to control the urinary problems which the plaintiff had as a result of his injury. The finding of the compensation court that there was no causal connection between the urinary tract infections and the injury was clearly wrong and is reversed.

In addition to his urinary and bowel problems the plaintiff sustained a cerebral vascular accident on April 25, 1975, resulting in hemiplegia. The plaintiff has had several severe respiratory infections. Although the plaintiff’s brain injury may have been a contributing cause to these difficulties, the evidence is such that we can not say that the compensation court was clearly wrong in finding to the contrary.

There was a reasonable controversy between the parties in this case and the plaintiff was not entitled to the statutory penalties for waiting time. § 48-125, R. R. S. 1943; Marshall v. Columbus Steel Supply, 187 Neb. 102, 187 N. W. 2d 607. Since it does not appear that the award to the plaintiff was increased in this court, no allowance is made for the services of the plaintiff’s attorneys in this court.

The judgment of the compensation court is affirmed in part, and in part reversed, and the cause remanded for further proceedings in accordance with this opinion.

Affirmed in part, and in part reversed AND REMANDED FOR FURTHER PROCEEDINGS.