Boshers v. Payne

• Decision Date: 17 July 1937
• Docket Number: 6429
• Citation: 70 P.2d 391,58 Idaho 109
• Court: Idaho Supreme Court
• Parties: MARK BOSHERS, Employee, Respondent, v. C. M. PAYNE and W. J. DOUST, Doing Business as PAYNE & DOUST, and AETNA CASUALTY & SURETY COMPANY, Surety, Appellants

70 P.2d 391

58 Idaho 109

MARK BOSHERS, Employee, Respondent, v. C. M. PAYNE and W. J. DOUST, Doing Business as PAYNE & DOUST, and AETNA CASUALTY & SURETY COMPANY, Surety, Appellants

No. 6429

Supreme Court of Idaho

July 17, 1937

WORKMEN'S COMPENSATION LAW - MODIFICATION OF INDUSTRIAL ACCIDENT BOARD AWARD.

1. The burden of proof is on party moving for change or modification of Industrial Accident Board's award of compensation to injured employee.

2. Testimony of orthopedic surgeon and neurology professor held insufficient to justify order modifying Industrial Accident Board's award of compensation to injured employee for permanent total disability on ground of substantial improvement in his condition.

APPEAL from the District Court of the Eighth Judicial District, for Boundary County. Hon. Everett E. Hunt, Judge.

Application by employers to modify or terminate award to employee. Industrial Accident Board denied petition and dismissed the same, from which an appeal was taken to the district court. District court affirmed action of board, from which appeal was taken to this court. Order and judgment of district court affirmed.

Affirmed with costs to respondent.

Weldon Schimke, for Appellants.

The law provides for and requires a modification of award when there has been a change in conditions. (I. C. A., sec. 43-1407; Jenkins v. Boise Payette Lbr. Co., 49 Idaho 24, 287 P. 202; Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769.)

The law in effect at the time of the injury and of the 1927 agreement and award did not limit the time within which a modification for change in condition could be made. (I. C. S., sec. 6269; Kelley v. Prouty, supra.

O. C Wilson, for Respondent.

The law provides for, but does not require a modification of award where there has been a change of condition. The law provides there may be a modification but the same is not compulsory. (I. C. A., sec. 43-1407 (I. C. S., sec. 6269); Jenkins v Boise Payette Lbr. Co., 49 Idaho 24, 287 P. 202; Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769.)

AILSHIE J. Morgan, C. J., and Holden, Budge and Givens, JJ., concur.

OPINION

AILSHIE, J.

--Appellants, Payne & Doust, were general contractors engaged in doing construction work in Boundary county in this state. Respondent (a single man, 41 years of age) had been working for appellants as a powder man in their rock quarry. September 2, 1924, while standing on the bank of the quarry, respondent was struck on the head with "a flying missile presumably thrown from a cable used to handle a heavy Bagley scraper, rendered unconscious and knocked into the rock pit." The rock scraper was dragged over and across his body; he was taken up with a load of rocks and dragged over to a rock crusher. As a result of the accident he suffered disabilities to his right leg as follows: Crepitus in the knee joint (equivalent to 75 per cent loss above knee); stretching of the internal lateral ligaments and all ligaments of knee joint relaxed; flail-like motion of leg when walking. His left leg was disabled as follows: Improper alignment of tibia; badly displaced union of fibula; limitation of motion of ankle, interference of blood circulation in leg, ankle and foot; weakness and stiffness of leg muscles, equivalent to 75 per cent loss between knee and ankle. The disability in his legs precluded him from carrying burdens of even moderate weight. His right external ear was cut off and one-third of hearing lost.

Respondent received medical and surgical attendance and treatment in a hospital until February 26, 1925, and further medical attention in Spokane until September 1, 1925. Ten medical examinations were given him from September 2, 1924, to August 18, 1926. August 16, 1927, the Industrial Accident Board approved an agreement entered into between the workman and the contractors, whereby it was agreed between the parties, and approved and ordered by the board, that Bosher should receive compensation for the full period of 400 weeks, at $ 12 per week, and thereafter $ 6 per week during the remainder of his life. This order became final.

February 3, 1936, the Industrial Accident Board received a petition from appellants for a new award, on the ground that there had been a change and improvement in condition from that of permanent and total disability as originally determined. In accordance with stipulation of the parties, depositions were taken of Drs. Delehanty and Barnard (practicing physicians of Colorado, who examined respondent in 1934 and 1935), of a Mrs. Williams (landlady of a Denver hotel where respondent roomed) and of respondent himself. The petition was heard on depositions, and on May 9, 1936, the board entered its order dismissing the petition for modification of award, from which order appeal was taken to the district court. The matter was heard in the district court on stipulation and briefs of counsel, and judgment was there entered sustaining the decision of the board and dismissing the appeal, from which judgment this appeal has been taken.

The assignments of error are all to the effect that the board and the trial court erred in not finding and holding that respondent's condition has materially improved and that the award should be modified and payment discontinued.

Sec. 43-1407, I. C. A., as it read before amendment in 1931 (C. S., sec. 6269) provides as follows:

"On the application of any party on the ground of a change in conditions, the board may at any time, but not oftener than once in six months, review any agreement or award, and on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, subject to the maximum and minimum provided in this chapter, and shall state its conclusions of fact and rulings of law, and immediately send to the parties a copy of the award, but this section shall not apply to a commutation of payments under section 6240."

It is contended by appellant, and conceded by respondent, that, under the authority of Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769, the above-quoted statute applies to this case and that the application for a modification of the previous award might be made at any time. It will be noted that the authority of the board to end, diminish, or increase an award rests on the "ground of a change in conditions." The statute does not undertake to define or prescribe the nature, character, extent or duration of the "change in conditions" necessary to either justify or require a modification or change of the award.

In Rodius v. Coeur d'Alene Mill Co., 46 Idaho 692, 695; 271 P. 1, this court held that it is necessary to both plead and prove "change in condition" in order to obtain a modification of a final award. Other courts have considered the questions as the burden of proof, weight of evidence and the time and character of changes that enter into decisions in this class of hearings. In Davon Oil Co. v. State Ind. Commission, 177 Okla. 612, 61 P.2d 579, 581, the Oklahoma court said:

"On the application to discontinue payment of compensation, the burden was upon the petitioner to establish by competent evidence a state of facts which would justify such action by the commission The competent medical evidence before the commission with reference to whether the temporary total disability of the respondent had terminated was in conflict. The commission chose to give greater credence to the testimony of the witnesses appearing for the respondent. This they were privileged to do

"The commission by its order found that the petitioner had failed to sustain the burden resting upon it. We think that the commission was correct in so holding, and that the order made finds ample support in the competent evidence adduced before the commission. This being true, it is our duty to sustain such order."

In Johnson v. Pearson, 264 Mich. 319, 249 N.W. 865, the Supreme Court of Michigan considered the question as to the burden of proof and nature of evidence submitted on an application to discontinue compensation and said:

"The case presents difficulties, as the testimony is conflicting and rather barren of any but subjective proofs of the continuation of appellee's incapacity. On a petition to stop compensation, however, the burden of proof is upon the petitioner." (Citing authorities.)

The compensation act of Georgia apparently contained substantially the same provision as sec. 43-1407, I. C. A., with regard to modification of awards and in considering this question, in the case of Fralish v. Royalty Indemnity Co., 53 Ga.App. 557, 186 S.E. 567, 571, the court said:

"It is only where the future developing facts and circumstances show a change in condition with reference to the claimant by reason of his previous injury, such as would show an increase or decrease in the extent of his disability and consequently change the amount of his weekly compensation payments, that a former award, finding the claimant a certain per cent. disabled and therefore entitled to receive compensation payments in accordance therewith, may be changed by the department upon application for a review thereof. American etc. Ins. Co. v. Hampton, 33 Ga.App. 476, 127 S.E. 155. Where there is no change in condition, the department cannot rehear the case on its merits and determine under the evidence that the claimant was totally disabled and had been since his injury, and make an award increasing his weekly compensation payments from a 50 per cent. disability basis to a 100 per cent. disability basis, or vice versa. Gravitt v. Georgia Casualty Co., 158 Ga. 613, 614, 123 S.E. 897. It has been held in other jurisdictions that in such a case evidence that the claimant's physical condition has always been worse than found by the former award is not a...