Barry v. Peterson Motor Co.

• Decision Date: 03 April 1935
• Docket Number: 6133
• Citation: 55 Idaho 702,46 P.2d 77
• Parties: ALEX BARRY, Respondent, v. PETERSON MOTOR COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

46 P.2d 77

55 Idaho 702

ALEX BARRY, Respondent, v. PETERSON MOTOR COMPANY, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 6133

Supreme Court of Idaho

April 3, 1935

WORKMEN'S COMPENSATION LAW - PERMANENT PARTIAL DISABILITY - SCHEDULED INJURIES - SPECIFIC INDEMNITY - "AND ALL OTHER CASES IN THIS CLASS"-CHANGE OF CONDITION-HEARING, LIMITATION OF.

1. Where statute fixed percentage of disability for injury to specified members or organs of body, and all other cases in this "class" without specifically mentioning percentage for kidney injury, such injury held not within "class" of injuries mentioned, and percentage of disability therefor should have been ascertained under statute covering partial disability (I. C. A., secs. 43-1112, 43-1113).

2. Kidney injury, not mentioned in statutory schedule fixing disability rating for injury to named members or organs of body, was not compensable under statute by comparison to schedule set forth in statute (I. C. A., sec. 43-1113).

3. Where claimant suffered injury to kidney and spine and was awarded compensation for 148 1/2 weeks, the disability being based on comparison of injury to amputation of leg at hip award held properly increased to 150 weeks upon subsequent finding that claimant suffered a permanent partial disability (I. C. A., secs. 43-1112, 43-1113).

4. In absence of fraud, an award of compensation which was not appealed from became final, and hearing on changed condition was limited to modification of award solely on that ground and other errors could not be considered (I. C. A., sec 43-1408).

5. In proceeding for additional compensation because of changed condition, reviewing court could not disturb previous award because of wrong classification or incorrect amount, since future award was limited to maximum and minimum provided by statute (I. C. A., sec. 43-1112).

6. In proceeding for additional compensation because of changed condition, claimant held entitled to compensation for 150 instead of 148 1/2 weeks at $16 instead of $13.75 per week for injury to kidney and spine causing permanent partial disability (I. C. A., secs. 43-1112, 43-1113).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action for additional compensation under the Workmen's Compensation Act because of alleged change of condition. Judgment for claimant modified and affirmed.

Judgment affirmed. No costs awarded.

Leslie J. Aker, for Appellants.

The court had no jurisdiction to make any award on account of alleged disability for recurrence of prolapsed kidney under the specific indemnity statute. (Secs. 43-1110, 43-1112, 43-1113, I. C. A.; Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781, 785; Dosen v. East Butte Copper Co., 78 Mont. 579, 254 P. 880, 887; Addison v. W. E. Wood Co., 207 Mich. 319, 174 N.W. 149.)

The court had no jurisdiction to hear or determine any application for review after commutations or partial lump sum payments upon the award under the statute; the original award was final and conclusive. (Secs. 43-1407, 43-1408, 43-1121, I. C. A.; Haugse v. Sommers Bros., 43 Idaho 450, 458, 254 P. 212, 51 A. L. R. 1438; Reagan v. Baxter Foundry & Machine Works, 53 Idaho 722, 27 P.2d 62.)

W. H. Langroise and Sam S. Griffin, for Respondent.

The Idaho Workmen's Compensation Act provides compensation or specific indemnity for four classes of disability: (1) Permanent total, (2) temporary total, (3) temporary partial, and (4) permanent partial. (Secs. 43-1110 to 43-1113, I. C. A.; Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781, 785.)

Classes (1), (2) and (3) are dependent upon disability for work while class (4) is compensable for its partial quantity under section 43-1112, and is entitled to additional specific indemnity for its permanent quality under section 43-1113 without regard for its effect upon work. (Haugse v. Sommers Bros., 43 Idaho 450, 254 P. 212, 51 A. L. R. 1438; Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769.)

The provision of section 43-1113 for "all other cases of this class" is as much a scheduled and named disability as "For the loss of one arm," was intended to cover "other" disabilities having permanent quality and to award specific indemnity therefor of a certain number of weeks, determined by comparing the disability produced by such "other" injury with the disability produced by named injuries and awarding a number of weeks' indemnity proportionate to the number awarded by the statute for the injury with which it was compared. (Secs. 43-1113 to 43-1115.)

Similar statutes of other states have been interpreted to indemnify under "other cases" disabilities of permanent quality resulting from injuries not "losses" nor named specifically in the statute. (Sec. 6, chap. 61, S. L. Okla. 1923; Burpo Gin Co. v. Chaney, 159 Okla. 25, 14 P.2d 216; Farmers' Co-op. Assn. v. Beagley, 158 Okla. 53, 12 P.2d 544; Dailey, Crawford & Pevetoe v. Rand, 155 Okla. 229, 8 P.2d 738; Allen Water Co. v. Davis, 150 Okla. 13, 300 P. 793; Van Orman v. Robinson, 150 Okla. 156, 300 P. 412.)

GIVENS, C. J. Budge, Morgan and Holden, JJ., and Sutton, D. J., concur. SUTTON, D. J., Dissenting. Ailshie, J., not participating in original hearing, did not participate on rehearing.

OPINION

GIVENS, C. J.

September 11, 1931, respondent, while employed by appellant Peterson Motor Company, as an automobile salesman, suffered an accident, resulting in a prolapsed kidney (disputed but so found by the board) and three broken vertebrae between the hips, for which he received $ 16 a week for 29 weeks of total temporary disability, and after an operation to correct the above injuries, was pronounced surgically healed April 1, 1932, and a compensation agreement entered into April 2d, approved by the Industrial Accident Board, for $ 13.75 a week for 148 1/2 weeks of partial disability, due to a loss of function and injury to the spine, arrived at by comparison and similarity to 82 1/2 per cent of the amputation of one leg at the hip joint. On this basis, he was paid the full 148 1/2 weeks. Thereafter, November 10, 1932, respondent filed an application for changed condition review alleging a recurrence of the prolapsed kidney and complications, and that the rate of compensation at $ 13.75 should have been $ 16 a week, because his average rate of pay prior to the accident justified the higher indemnity under I. C. A., sec. 43-1110. Contrary to appellants' contention there was no commutation of payment under I. C. A., secs. 43-1407 and 43-1121, barring the relief asked for, merely periodical payment under I. C. A., sec. 43-1120.

Appellants' next point is that a comparison of the injury to the spine and the prolapsed kidney could not be made with any specific indemnity under I. C. A., sec. 43-1113, to sustain the percentage basis of the first award now making a total as of the loss of one leg at the hip.

Respondent concedes that any injury to the kidney is not mentioned in I. C. A., sec. 43-1113, but justifies the board's percentage comparison on the phrase, "and all other cases in this class." The correct interpretation of this section depends upon the meaning of the term "class." If the word "class" be considered to mean partial disability, then sec. 43-1112 becomes meaningless because under such interpretation all partial injuries could come under sec. 43-1113. Quoting from Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P.2d 228, at page 229:

"Fundamentally almost any scheduled injury under our Workmen's Compensation Law produces some -- perhaps slight although it may be substantial--unnatural result upon normal bodily functions. If it were to be held that all such results constituted general partial disability under the statute, there would be little or no purpose in having scheduled injuries." See Porter v. Sinclair Prairie Oil Co., 169 Okla. 449, 37 P.2d 626. Yet the legislature intended to make provision for certain specific injuries and indemnities not considered to come under sec. 43-1112, and sec. 43-1112 deals only with partial disability which may be either permanent or temporary. Section 43-1111 deals wholly with total disability which may be permanent or temporary. If the word "class," however, be considered to refer to the various members or organs of the body mentioned in sec. 43-1113, then effect may be given both secs. 43-1112 and 43-1113. It is unnecessary for us to consider the scope of sec. 43-1113 further. The accident or injury here not being connected with any of the portions of the body members or organs mentioned in sec. 43-1113 does not fall within that class of injuries but perforce comes under sec. 43-1112. (Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781; Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769.) The authorities below fully sustain this construction of the statute that is that to be compensable under sec. 43-1113 the injury or accident must be to one of the members or organs therein mentioned, but while some of the authorities hold there must be a loss or severance, we do not so hold nor express any opinion thereon because that point is not here, merely holding herein that a kidney or back injury, because not referred to in sec. 43-1113, is not compensable thereunder or by comparison thereto. (Dosen v. East Butte Copper Min. Co., 78 Mont. 579, 254 P. 880, at 887; Addison v. Wood Co., 207 Mich. 319, 174 N.W. 149; Northwestern Fuel Co. v. Industrial Com., 161 Wis. 450, 152 N.W. 856, Ann. Cas. 1918A 533; Shinnick v. Clover Farms Co., 169 A.D. 236, 154 N.Y.S. 423; Merchant's Case, 118 Me. 96, 106 A. 117; Burbage v. Lee, 87 N.J.L. 36, 93 A. 859; Clark v. Kennebec Journal Co., 120 Me. 133, 113 A. 51; Panico v. Sperry Engineering Co., 113 Conn. 707, 156...