Arneson v. Robinson

• Decision Date: 26 July 1938
• Docket Number: 6504
• Parties: VICTOR E. ARNESON, Respondent, v. F. D. ROBINSON and NORTHWEST INDEMNITY EXCHANGE, Appellants
• Court: Idaho Supreme Court

82 P.2d 249

59 Idaho 223

VICTOR E. ARNESON, Respondent, v. F. D. ROBINSON and NORTHWEST INDEMNITY EXCHANGE, Appellants

No. 6504

Supreme Court of Idaho

July 26, 1938

WORKMEN'S COMPENSATION-NOTICE OF INJURY-NO PREJUDICE ON ACCOUNT OF DELAY-EVIDENCE-FAILURE TO GIVE MEDICAL CARE-PREVIOUS DISEASE-HOSPITAL CONTRACT-STATUTORY CONSTRUCTION.

1. Where employer's contract physician examined injured workman but refused to treat him or examine him further on ground that injury was result of previous disease rather than of accident, employer was not prejudiced by workman's failure to give further notice of accident and could not complain thereof. (I. C. A., secs. 43-1202, 43-1205.)

2. In compensation proceeding for injury to knee, testimony of attending physician and other evidence held to authorize finding that injury was result of accident occurring during work rather than of prior osteomyelitis, notwithstanding contrary expert testimony. (I. C. A., sec. 43-901 et seq.)

3. Positive and affirmative testimony in support of Industrial Accident Board's ruling that injury is compensable is entitled to more weight than negative testimony to the contrary.

4. In compensation proceeding, error in admitting physician's hearsay testimony concerning opinions of other physicians was not reversible where other evidence warranted the board's findings.

5. In workmen's compensation proceeding, wherein defense that injury was result of previous osteomyelitis was fully covered by employer's medical witnesses, newly discovered evidence, which was merely cumulative, that workman had consulted another physician who had diagnosed complaint as osteomyelitis, did not require the granting of a rehearing.

6. The rights to compensation of a workman who has waived benefits of statute granting direct reimbursement are to be measured under statute governing hospital contracts. (I. C. A., secs 43-1107, 43-1108.)

7. Under statute entitling injured workman to reimbursement for medical assistance not given by the employer, no sick benefits are given; whereas, under statute governing hospital contracts, sick benefits but not reimbursement are given. (I C. A., secs. 43-1107, 43-1108.)

8. The Industrial Accident Board had jurisdiction to award reimbursement for medical expenses to workman who had waived statute granting direct reimbursement, but had been denied treatment to which he was entitled under hospital contract as against contention that independent action for breach of contract was the exclusive remedy. (I. C. A., secs. 43-1107, 43-1109.)

9. Whether employer's liability under compensation law should be determined by Industrial Accident Board or by independent court action is primarily a question of legislative intent, as expressed directly or by necessary implication. (I. C. A., secs. 43-1107, 43-1109.)

10. The Workmen's Compensation Act, which was originally passed as an entirety, must be construed as a whole. (I. C. A., sec 43-901 et seq.)

11. Questions arising under hospital contracts between employer and workman are questions under the Workmen's Compensation Act, which grants the right to make such contracts, and hence are within jurisdiction of Industrial Accident Board. (I. C. A., secs. 43-902, 43-1006, 43-1103, 43-1107, 43-1109, 43-1413.)

APPEAL from the Industrial Accident Board.

Proceeding under Workmen's Compensation Law. From an order of the Industrial Accident Board awarding claimant compensation and expenses of medical treatment and hospitalization appellants appeal. Affirmed.

Affirmed. Petition for rehearing denied.

Spencer Nelson and Ralph S. Nelson, for Appellants.

"Notice of Injury"--No proceedings for compensation can be maintained unless a notice of the accident shall have been given to the employer as soon as practicable but not later than sixty days after the happening thereof. A delayed report of the accident can only be excused when it is proven that the employer was not prejudiced by such delay in the giving of notice. (Secs. 43-1202, 43-1205, I. C. A.; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270; Bodah v. Coeur d' Alene Mill Co., 44 Idaho 680, 258 P. 1079; Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758; Coline Oil Corp. v. Vaughn, 157 Okla. 101, 11 P.2d 121; Norman Steam Laundry v. State Industrial Com., 160 Okla. 107, 16 P.2d 92.)

The industrial board has no authority over civil causes of action for the breach of a contract. That part of this action for medical and hospital bills was for breach of contract. Section 43-1107, I. C. A., was waived and section 43-1108 provides for a hospital contract and an action brought to recover money under sec. 43-1108, I. C. A., does not come within the jurisdiction of the Industrial Accident Board. In the case of waiver of section 43-1107, I. C. A., the law should be construed as though sec. 43-1107, I. C. A., were not in the act. Therefore, an action to recover for medical or hospital bills must be in the form of a civil action against the contracting doctor or hospital. The contracting doctor was not a party to this case. (Western Hospital Assn. v. Industrial Accident Board, 51 Idaho 334, 6 P.2d 845; Sample v. Murray Hospital, 103 Mont. 195, 62 P.2d 241; Schneider, vol. 1, p. 96; Associated Employers' Reciprocal v. State Industrial Com., 87 Okla. 16, 208 P. 798.)

Allen H. Asher, for Respondent.

A proceeding for compensation may be maintained when based on a delayed notice and a showing that the employer, his agent or representative had knowledge of the accident.

A. The manner of giving notice and imparting knowledge.

B. A showing of lack of prejudice is not essential.

C. The contents and general nature of the knowledge imparted.

(Secs. 43-1202 to 43-1205, I. C. A.; Cooper v. Independent Transfer & Storage Co., 52 Idaho 747, 19 P.2d 1057; Page v. State Ins. Fund, 53 Idaho 177, 22 P.2d 681; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Bodah v. Coeur d' Alene Mill Co., 44 Idaho 680, 258 P. 1079; Stoddard v. Mason's Blue Link Stores, Inc., 55 Idaho 609, 45 P.2d 597; Crowley v. Idaho Industrial Training School, 53 Idaho 606, 26 P.2d 180; Feuling v. Farmers' Co-operative Ditch Co., 54 Idaho 326, 31 P.2d 683; Smith v. McHan Hardware Co., 56 Idaho 43, 48 P.2d 1102.)

Recovery of hospital and medical bills from the employer and surety is ancillary to and a part of a claim for compensation by an injured workman who has honestly and in good faith tried to secure hospital and medical services from his employer's physician and has been refused such services. The Industrial Accident Board has jurisdiction and authority to make an award for expenses incurred by an injured workman for medical and hospital services whether or not a "hospital contract" is in force between the employer and a physician. (Secs. 43-1107 and 43-1108, 43-1413, I. C. A.; Johnston v. A. C. White Lumber Co., 37 Idaho 617, 217 P. 979; Western Hospital Assn. v. Industrial Accident Board, 51 Idaho 334, 6 P.2d 845; Sample v. Murray Hospital, 103 Mont. 195, 62 P.2d 241.)

GIVENS, J. Holden, C. J., and Morgan and Budge, JJ., concur. Ailshie, J., did not participate.

OPINION

GIVENS, J.

Respondent was employed as a hooker in connection with skidding logs for appellant Robinson whose insurance carrier is the other appellant. September 3, 1936, a skidded log caught and suddenly released a small tree which, springing back, struck respondent just below the knee, causing instant severe pain, but not compelling him to discontinue work until 10 days thereafter.

Respondent is corroborated as to the happening of the accident by George Varner, running the jammer, who testified he was sitting on the jammer about 75 feet from respondent:

"A. He (respondent) went out in the woods and was pulling the cable and hooked on to a log and we was pulling it in with the jammer and this limb caught and hit him on the knee.

"Mr. NELSON: On the knee or below the knee?

"A. In the region of the knee.

"Q. What did Arneson do immediately after he was hit?

"A. Sat down and held on to his leg.

"Q. Then what did he do?

"A. Then he got up and followed the log in to the decking.

"Q. Up to where you were?

"A. Yes.

"Q. When he was coming up did he show any ill effects from the injury?

"A. He was limping.

"Q. This was noticeable, was it?

"A. Yes."

Respondent did not notify the foreman nor anyone in authority until September 13th, after he had been refused admittance to the hospital operated by appellant's contract physician, when he encountered Arden Davis, timekeeper for appellant company whom he did not tell of the accident, but merely of being refused medical care and attention, and no other notice was given, except a statement to the contract physician, until notice of application for compensation which was more than 60 days after the accident.

Appellants contend lack of timely notice under sec. 43-1202, I. C. A., bars compensation. In passing upon this point it is necessary to consider briefly the main point of the case. Appellants take the position the injury and disability which respondent suffered after being struck by the tree was an old chronic osteomyelitis from which respondent had recurrently suffered and had been operated on, in no way connected with the snapping tree. Respondent on the other hand claims the injury was caused by being struck by the tree, and had no connection with the osteomyelitis.

Respondent saw Dr. Page, appellant's contract physician, September 11th, and told him of the accident and asked for medical assistance, which Dr. Page refused because he had previously treated respondent for osteomyelitis and considered his injury arose from that and not from any accident which entitled him to any medical attention under the contract. The pertinent...