Bower v. Smith

• Decision Date: 14 October 1941
• Docket Number: 6872
• Citation: 63 Idaho 128,118 P.2d 737
• Parties: FRED BOWER, Appellant, v. W. J. Smith & E. H. SMITH, doing business as TRIANGLE CONSTRUCTION COMPANY, and STATE INSURANCE FUND, Respondents
• Court: Idaho Supreme Court

118 P.2d 737

63 Idaho 128

FRED BOWER, Appellant, v. W. J. Smith & E. H. SMITH, doing business as TRIANGLE CONSTRUCTION COMPANY, and STATE INSURANCE FUND, Respondents

No. 6872

Supreme Court of Idaho

October 14, 1941

Rehearing denied November 24, 1941.

WORKMEN'S COMPENSATION-AWARD-APPLICATION TO REOPEN-FRAUD-SPECIFIC INDEMNITIES-LOSS OF KIDNEY-FINDINGS NOT DISTURBED ON APPEAL.

1. Whether the loss of a kidney is equivalent to the loss of an arm at the shoulder so as to entitle claimant to compensation in the amount provided for such loss of an arm depends upon the evidence submitted in the particular case, since statute does not specifically provide therefor. (I. C. A. sec 43-1113.)

2. Where compensation claimant did not appeal from decision of Industrial Accident Board, awarding compensation at specified weekly rate for designated period and an additional sum for medical and hospital expenses, such decision and award were "res judicata" as to amount of compensation to which claimant was entitled at time of award as well as to all connected questions which could or should have been raised in such proceedings. (I. C. A. sec. 43-1402.)

3. The failure of Industrial Accident Board to award compensation for loss of a kidney equivalent to that allowed for the loss of an arm at the shoulder, did not, in and of itself constitute "fraud in law" so as to entitle claimant, after time for appeal therefrom had expired, to reopen the matter on an application for a review of the award, since whether claimant would be entitled to compensation equivalent to that allowed for loss of an arm at the shoulder necessarily depended upon the evidence. (I. C A. sec. 43-1113.)

4. Where Industrial Accident Board has jurisdiction of subject matter and of parties, board has jurisdiction to commit error, the rule applicable to nisi prius courts being also applicable to awards of Industrial Accident Board.

5. Where claim for compensation for loss of a kidney had been litigated and an award had been made by Industrial Accident Board, and the time for an appeal therefrom had expired claimant could not reopen the matter on an application for a review of the award upon the ground the award constituted a fraud "in law" in that claimant had not been awarded compensation equivalent to that allowed for the loss of an arm at the shoulder. (I. C. A. secs. 43-1113, 43-1402.)

6. Industrial Accident Board's finding that compensation claimant's condition was substantially the same as it had been more than a year earlier on the date of entry of award of compensation for loss of a kidney, which had to be removed as a result of injury, was supported by claimant's own testimony with respect to physical condition, as well as the testimony of physicians, and hence would not be disturbed by Supreme Court on appeal from board's order denying additional compensation. (I. C. A. secs. 43-1408, 43-1409, 43-1413, as amended by Sess. Laws, 1937, c. 175.)

7. Findings of the Industrial Accident Board, when supported by substantial competent evidence will not be disturbed on appeal. (I. C. A. secs. 43-1408, 43-1409, 43-1413, as amended by Sess. Laws, 1937, c. 175.)

Rehearing denied November 24, 1941.

APPEAL from the Industrial Accident Board.

Proceeding under the Workmen's Compensation Act by Fred Bower, claimant, opposed by Triangle Construction Company, employer, and State Insurance Fund, surety. From an order denying compensation, claimant appeals. Affirmed.

Order affirmed. Costs awarded to respondents.

Dale Clemons and Walter L. Budge, for Appellant.

An award of the Industrial Accident Board becomes final and conclusive only in the absence of fraud. (I. C. A. 43-1408, as amended. Skelly v. Sunshine Mining Co., 62 Idaho 192, 109 P2 622.)

The Industrial Accident Board cannot make an award contrary to the provisions of the Workmen's Compensation Law. (I. C. A. 43-1402; Hanson v. Independent School Dist. No. 11-J, 57 Idaho 297.)

The loss of a kidney is a permanent injury and has a resulting permanent disability. (Accidental Injuries by Henry H. Kessler, pp. 417-419; Olsen v. Union Pacific Railroad Co. (Idaho) 112 P.2d 1005.)

In determining specific indemnities under Section 43-1113 I. C. A., the loss of earning power and capacity for work is not to be considered. (Kelly v. Prouty, 54 Idaho 226; Olsen v. Union Pacific Railroad Co. (Idaho) 112 P.2d 1005.)

When an award has been made on the theory that the injury was temporary, and it is in fact permanent, there is a sufficient showing of change of condition to warrant reopening of the case. (Hustead v. Brown, 52 Idaho 590; 17 P.2d 927; White Oak Refining Co., v. Whitehead, (Okla.) 22 P.2d 910.)

Clarence L. Hillman, for Respondents.

Under the doctrine of "res judicata" the appellant could not litigate matters that were or could have been disposed of at a previous hearing; and the prior award was "res judicata" of all issues that were susceptible of adjudication at the previous hearing upon which an award was made. (Gibbany v. Walker, (Mo. App.), 121 S.W.2d 317, 321; McKenzie v. Hinkle, (Ky.), 112 S.W.2d 1019, 1021; Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 208 P. 241; South Boise Water Co. v. McDonald, 50 Idaho 409, 296 P. 591.)

Where, as in this case, the board has duly entered an award, in the absence of fraud, it is final and conclusive between the parties, unless an appeal is duly taken therefrom, except that it may be reviewed on the ground of a change in conditions occurring subsequent to the making thereof. (1917 Laws, c. 81, secs. 49, 56 and 57; Const., sec. 9, art. 5; I. C. A. secs. 43-1407, 43-1408, 43-1409 (as amended 1937 Laws, c. 175, pp. 288, 289; Rodius, et al., v. Coeur d'Alene Mill Co., et al., 46 Idaho 692, 271 P. 1.)

Since, in this case, there was no fraud in procuring the former award, and no appeal was taken therefrom in the time provided for by statute, it would have been reversable error for the board to have set the same aside and made an order and award in favor of appellant and against respondents. (In re Black, 58 Idaho 803, 80 P.2d 24; 1917 Laws, c. 81, secs. 49, 56 and 57; Const., sec. 9, art. 5; I. C. A. secs. 43-1407, 43-1408, 43-1409 (as amended 1937 laws, c. 175, pp. 288, 289); Rodius, et al., v. Coeur d'Alene Mill Co., et al., 46 Idaho 692, 271 P. 1; Van Blaricom v. Export Lumber Co., et al., 52 Idaho 459, 16 P.2d 990.)

HOLDEN, J. GIVENS, P.J., AILSHIE, J., BUCKNER, D.J., and MORGAN, J., concurring. BUDGE, C.J., did not sit at the hearing or participate in the decision.

OPINION

HOLDEN, J.

May 15 1937, and for several years prior thereto Fred Bower was employed by the Triangle Construction Company as superintendent of construction. On that date while inspecting a caterpillar tractor he fell backwards from the upper deck landing on his left side on the shoulder of the road. Thereafter and on or about July 10, 1937, appellant, while in charge of construction operations for this company, crawled under a truck to inspect a portion thereof and while crawling out raised suddenly before clearing it and struck his back in the region of the left kidney on some protruding part of the truck. He lost weight and vitality from May 15, 1937, to November 10, 1937, at which time he weighed approximately 145 pounds. On the latter date he entered St. Luke's hospital. December 13, 1937, his left kidney was removed and his condition diagnosed as a systic adeno carcinoma of the left kidney. It appears the left kidney had a malignant carcinoma at the time these accidents occurred and that this condition was accelerated and aggravated by the injuries so sustained. March 17, 1938, appellant filed a petition claiming compensation for such injuries, no agreement therefor having been reached as provided by Section 43-1402, I. C. A. Upon the hearing of the petition witnesses were sworn and examined and documentary evidence introduced and the cause submitted to the board for decision. February 15, 1939, the board awarded appellant compensation at the rate of $ 13.10 per week from November 10, 1937, to March 31, 1938, inclusive, and the additional sum of $ 842.33 for medical, hospital, drugs, anesthetic and nursing expenses, from which award appellant did not appeal. Sometime thereafter, to-wit, April 4, 1940, claimant filed an application for a review of the award made February 15, 1939. In such application appellant based his right to compensation upon the ground that "the award insofar as it fails to grant claimant compensation for his permanent injury, to-wit: the loss of the left kidney, is in law a fraud upon the claimant in that it deprived him of the benefits and compensation to which he is entitled to have and receive from the defendants for his permanent injury as provided by the Workmen's Compensation Law." July 22, 1940, respondent filed an "amended application on review" wherein he alleged "that subsequent to February 15, 1939, claimant's condition on account of said accidental injury sustained by him has become worse and that claimant is entitled to an award increasing the compensation heretofore awarded him on the grounds that claimant's condition has changed for the worse." A hearing was had September 18, 1940. September 19, 1940, the board made the finding of fact "that the claimant's condition is now substantially the same as it was on the 15th day of February, 1939, and that there has been no change in his condition since that date," and the conclusion of law "that the claimant Fred Bower is not entitled to a modification of the award made herein on February 15, 1939; that an order should be made, given, filed and entered herein accordingly," on which the board entered the following order: "Wherefore, it is ordered and this does order that the claimant Fred Bower take...