412 N.W.2d 469 (Neb. 1987), 86-814, Parker v. Saint Elizabeth Community Health Center

• Case Date: September 18, 1987
• Court: Nebraska

412 N.W.2d 469 (Neb. 1987) 226 Neb. 526 Jack PARKER, Appellee and Cross-Appellee, v. SAINT ELIZABETH COMMUNITY HEALTH CENTER, Appellee and Cross-Appellant, State of Nebraska, Second Injury Fund, Appellant and Cross-Appellee. No. 86-814. Supreme Court of Nebraska. September 18, 1987 [Copyrighted Material Omitted]        Syllabus by the Court        1. Workers' Compensation: Second Injury Fund. If an employer, knowing that an employee has a preexisting condition, agrees nevertheless to employ the individual, and the employee subsequently suffers a second injury which, but for the preexisting condition, would have produced a lesser degree of injury and disability and, therefore, a smaller payment by the employer, then the employer is only required to pay for that portion of the total injury which would have occurred without the preexisting condition. The balance is to be paid out of the Second Injury Fund.        2. Workers' Compensation: Second Injury Fund. The Second Injury Fund concept was created so that employers would be encouraged to hire the handicapped and would be secure in the knowledge that if there is a work-related accident, the employer and its insurance carrier would be liable only for those injuries that would have resulted had there been no preexisting disability.        3. Workers' Compensation: Appeal and Error. The findings of fact of the compensation court have the same force and effect as a jury verdict in a civil case and will not be set aside where they are supported by credible evidence and are [226 Neb. 527] not clearly wrong.        4. Judgments: Appeal and Error. A proper judgment will not be reversed because the trial court gave an erroneous reason for its rendition.        5. Workers' Compensation. 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 or her previous occupation or in any other established field of employment for which he or she is fitted. Whether or not the plaintiff is totally and permanently disabled, and is entitled to receive the maximum allowable benefits, is a question of fact.        6. Workers' Compensation. A worker should not be denied compensation benefits for what is currently total permanent disability simply because his or her employability and earning capacity might become enhanced by rehabilitation and the permanent disability possibly reduced at some time in the future.        Robert M. Spire, Atty. Gen., Martel J. Bundy, and Janie C. Castaneda, Lincoln, for appellant.        Scott A. Burcham of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee Parker.        Anne E. Winner of Bruckner, O'Gara, Keating, Sievers & Hendry, P.C., Lincoln, for appellee Saint Elizabeth Community Health Center.        BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.        HASTINGS, Justice.        This is an appeal from the Workers' Compensation Court by the State of Nebraska, Second Injury Fund (Fund). The principal legal question involved is whether, in cases of enhanced disability due to an earlier injury or disability, the Fund is obligated to pay benefits for other than permanent disability and an attorney fee where applicable. A subsidiary factual issue raised by Saint Elizabeth Community Health Center (Health Center) on cross-appeal is whether responsibility for the present degree of Jack Parker's permanent partial disability should be apportioned between the Fund and the Health Center. We affirm.        Parker had polio as a child. As a result, Parker wore a brace on his right leg, and, in order to walk, he had to put his weight [226 Neb. 528] on his left leg and swing his right leg forward. On his Health Center employment application Parker indicated that he had had polio, wore a brace, and had back injury or low back pain. Parker testified that the way he had to walk caused slight discomfort in his back.        According to the stipulation of the parties, on July 15, 1982, Parker experienced a compensable injury by falling off a ladder while employed as an x-ray technician by the Health Center. He felt immediate pain in his left knee and in his back. Parker was hospitalized overnight and did not return to work until August 29, 1982. He continued to have trouble with his left knee and had increased back pain. Parker testified that because of the injury he favored his left knee, which changed his gait and put more strain on his back.        Parker was admitted to the hospital for arthroscopic surgery on September 29, 1983, and returned to work on November 1. He was terminated from the Health Center in September of 1985 for producing poor quality x-ray films. He had been put on probation for poor quality work in 1982 before the accident occurred. Parker testified that after the accident he tended not to retake poor quality films because walking was painful and he did not want to push the x-ray machine back to the patient's location.        After being terminated from the Health Center, Parker sold home water treatment systems. His pain became worse, and he resigned at the end of April 1986 and has not worked since that time.        On rehearing, the three-judge panel found that as a result of the injury, Parker incurred medical and hospital expenses and was temporarily totally disabled from July 15 through August 28, 1982, from September 29 through October 31, 1983, and from May 1 through July 24, 1986, which was the date of the rehearing, and that he would remain...