Blackburn v. Olson

• Decision Date: 01 July 1949
• Docket Number: 7482
• Citation: 69 Idaho 428,207 P.2d 1160
• Parties: BLACKBURN v. OLSON et al
• Court: Idaho Supreme Court

207 P.2d 1160

69 Idaho 428

BLACKBURN v. OLSON et al

No. 7482

Supreme Court of Idaho

July 1, 1949

Appeal from Industrial Accident Board.

Award affirmed.

Paul C Keeton, Lewiston, Walter M. Oros, Boise, for appellants.

Where the findings of the Industrial Accident Board are not supported by competent and substantial evidence, they are not conclusive on appeal to the Supreme Court, and may be set aside. In re Hillhouse's Estate, 46 Idaho 730 271 P. 459; Ybaibarriaga v. Farmer, et al., 39 Idaho 361, 228 P. 227; Jenkins v. Boise Payette Lumber Co., 49 Idaho 24, 287 P. 202; Beaver v Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 606, 97 A.L.R. 1399; Fields v. Buffalo-Idaho Mining Co., 55 Idaho 212, 40 P.2d 114, 115.

J Henry Felton, Lewiston, for L. R. Olson.

Ralph S. Nelson and Spencer Nelson, Coeur d'Alene, for Idaho Compensation Co.

Defendant Olson did not file an Election with the Industrial Accident Board that the provisions of the act would apply and, therefore, did not come within the Act. Kindall v. McBirney, 52 Idaho 65, 11 P.2d 370; Ocean Accident & Guarantee Co. v. Industrial Commission of Utah, 69 Utah 473, 256 P. 405, 409. Sec. 43-904 I. C. A.

E. B. Smith, Boise, for Western Hosp. Ass'n and National Surety Co.

Porter, Justice. Givens and Taylor, JJ., and Sutphen and McCarty, District Judges, concur.

OPINION

Porter, Justice.

In 1945 the claimant and appellant, hereinafter referred to as claimant, was living with his wife and three minor children near Cavendish in Clearwater County. In May of that year, he became employed by defendant and appellant, L. R. Olson, hereinafter referred to as employer. Claimant's work consisted of operating a bulldozer in clearing stumps and brush from cut-over land owned by his employer.

The claimant had a background of employment mostly in lumbering and logging, and in the operation of heavy machinery in connection therewith. The employer had been engaged in logging operations until September 1943. At the time of the accident he was engaged in buying up cut-over land and in clearing the stumps and brush therefrom for the purpose of resale. Until a resale could be effected he would lease the land or cause it to be farmed on his own account. The land upon which the claimant was working had never been in crops. The claimant was not engaged to put out crops or to raise and care for crops.

On September 19, 1945, the claimant caught the corner of the bulldozer blade on a stump and killed the motor. The motor had to be started by use of the foot. In attempting to start the motor, the pin sheared off and the claimant was thrown on his back across the blade of the bulldozer. He suffered severe pain and quit work.

The second day after the accident, he talked with his employer about his back and was advised that the employer had no hospital contract. Thereafter he was treated by several physicians of his own selection. He received $ 100.00 from his employer to help pay for medical services. Sometime later, the claimant received word from his employer that the employer had found out he had insurance in the Idaho Compensation Company, defendant and appellant herein. The employer directed claimant to meet him at the office of one Ted Walrath, the representative of the surety. On December 28, 1945, the claimant and employer met at the office of Walrath who prepared notice of injury and claim for compensation in due form which was signed and served by the claimant; and to which, on the same day, the employer added his report. The formal claim was filed with the Industrial Accident Board on January 25, 1946.

In February, 1946, by request, the claimant met with Mr. Cathcart, a representative of the Idaho Compensation Company, and with his employer. A memorandum of agreement and summary was entered into and an employer's supplemental report made out. These papers were filed with the board February 13, 1946, and approved February 15, 1946. Under such agreement, the claimant was paid compensation for temporary total disability, from September 19, 1945, to February 7, 1946, in the sum of $ 380.00.

On January 2, 1948, claimant filed application for modification and petition for hearing on the ground of change of condition; and on February 27, 1948, filed his second amended petition. The defendant employer and his surety filed answer setting up that at the time of the accident, claimant was employed in an agricultural pursuit and that prior to the accident the employer had not elected in writing filed with the board, to have the provisions of the act apply; and that the entering into the compensation agreement was through inadvertence and mistake. On its own motion, the board on March 10, 1948, entered an order making the Western Hospital Association as hospital contractor and its surety, National Surety Corporation, defendants.

On June 15, 1948, a hearing was held. The Western Hospital Association and its surety orally denied any liability. Claimant, in support of his petition, offered evidence that after the award on February 15, 1946, his condition became worse. That he consulted local physicians, and upon their advice, went to the Portland Clinic, where on September 25, 1947, he submitted to an operation involving a herniated intervertebral disc and spinal fusion.

The Industrial Accident Board discharged the Hospital Association from liability and made an award to the claimant. From this award, both the claimant and the employer and his surety have appealed.

For convenience we will first consider the appeal of the employer and his surety. The principal assignment of error made is that the board erred in failing to find that the claimant at the time of the accident was engaged in an agricultural pursuit, and that the employer had filed no election to have the provisions of the compensation act apply. Section 72-105, I.C., provides in part as follows:

"None of the provisions of this act shall apply to:

"1. Agricultural pursuits.

* * * *

"Unless prior to the accident for which the claim is made, the employer had elected in writing filed with the board, that the provisions of the act shall apply."

It is not urged that the employer filed the election provided for in the above Section 72-105, I.C. It is also true that the board held that it was unnecessary for it to find as to whether or not the claimant was engaged in an agricultural pursuit at the time of the accident.

The claimant counters the contention that a finding should have been made by the board as to whether or not the claimant was engaged in an agricultural pursuit, with the argument that the compensation agreement approved by the board became, in effect, an award and is res adjudicata on the question of the injury being compensable. The board adopted this view.

Section 72-608, I.C., reads in part as follows:

"An award of the board in the absence of fraud, shall be final and conclusive between the parties, except as provided in section 72-607, unless within 30 days after a copy has been sent to the parties, either party appeals to the Supreme Court."

Section 72-607, I.C., provides that on application made by any party within four years of the date of the accident on the ground of a change of condition, the board may review an award and on such review, may make an award ending, diminishing or increasing the compensation previously awarded.

The compensation agreement approved by the board had the same effect as an award of the board. Zupantis v. Central Idaho Min. & Mill. Co., 61 Idaho 660, 106 P.2d 113; Rodius v. Coeur d'Alene Mill. Co., 46 Idaho 692, 271 P. 1.

It has been consistently held by this court that under the provisions of Section 72-608, I.C., an award in the absence of fraud, becomes final and conclusive if no appeal is taken, Zupantis v. Central Idaho Min. & Mill. Co., supra; Dept. of Finance v. Union Pac. R. R. Co., 61 Idaho 484, 104 P.2d 1110; Reagan v. Baxter Foundry etc. Works, 53 Idaho 722, 27 P.2d 62; Barry v. Peterson Motor Co., 55 Idaho 702, 46 P.2d 77; Rodius v. Coeur d'Alene Mill. Co., supra; Boshers v. Payne, 58 Idaho 109, 70 P.2d 391.

The doctrine of res adjudicata applies to all questions which might have been raised as well as to all questions which were raised. Zupantis v. Central Idaho Min. & Mill. Co., supra.

In Dept. of Finance v. Union Pac. R. R. Co., supra, an award was challenged on the ground that the Industrial Accident Board was without power or jurisdiction to make the award, for the alleged reason that it was made to a member of the employer's family, dwelling in his house, and that no election had been filed with the board to have the provisions of the act apply. Such employment, like agricultural pursuits, is exempted under Section 72-105, I.C. The evidence showed a compensation agreement signed by the claimant, the employer and the surety, and approved by the Industrial Accident Board. The court held that such an agreement for compensation constituted a decision and award of the board, and that the award was valid.

In Rodius v. Coeur d'Alene Mill. Co., supra, an award was made to a "stepchild" upon an agreement between the surety, the employer and the mother of the child. A petition was filed to reopen the case upon the ground that the child was not the child of the decedent, but was illegitimate. Section 72-305, I.C., classifies "acknowledged" illegitimate children as entitled to compensation. The court held that the original award was final and conclusive.

The appellants, employer and surety, rely upon Kindall v McBirney, 52 Idaho 65, 11 P.2d 370. An examination of such case discloses that it was conceded that claimant was injured while employed in an agricultural pursuit; and it was found that the employer had not filed the election...