Bowman v. Twin Falls Const. Co., Inc.

• Decision Date: 21 June 1978
• Docket Number: No. 12177,12177
• Parties: Delos L. BOWMAN, Claimant-Appellant, v. TWIN FALLS CONSTRUCTION COMPANY, INC., Employer, and General Insurance Company of America, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 770

581 P.2d 770

99 Idaho 312

Delos L. BOWMAN, Claimant-Appellant, v. TWIN FALLS CONSTRUCTION COMPANY, INC., Employer, and General Insurance Company of America, Surety, Defendants-Respondents.

No. 12177.

Supreme Court of Idaho.

June 21, 1978.

S. A. Kolman, Jerome and Wendell, for claimant-appellant.

Peter J. Boyd and Phillip M. Barber of Elam, Burke, Jeppesen, Evans & Boyd, Boise, for surety, defendants-respondents.

BISTLINE, Justice.

Delos L. Bowman, found to be permanently and totally disabled, appeals from the Commission's denial of any benefits. Bowman was a heavy equipment operator, primarily engaged in road construction, from 1936 to 1974, the last 18 years with Twin Falls Construction Company, which employer and General Insurance Company, its surety, are defendants. On August 12, 1974, at the age of 62, he was forced to stop working because of extreme shortness of breath. He was diagnosed as having moderate to severe pulmonary emphysema with secondary congestive heart failure. That he is permanently and totally disabled is not in dispute; the Commission so found. The Commission also found, however, that Bowman's occupation was not a major contributing factor to his pulmonary disease, and that the disease was not contracted or incurred during his employment and was not due to the nature of his occupation as being characteristic of and peculiar to his work as a blade operator, cat skinner and operator of a rock crusher. The Commission, in denying Bowman's claim, concluded as a matter of law that:

The Claimant's total and permanent disability may not be apportioned among contributing causes (Section 72-406, Idaho Code).

The Commission did not further elucidate as to the factors which brought it to that conclusion.

I.

The employer and surety urge that the conclusion followed from the reluctance of the doctors to place a numerical value on the various causes contributing to Bowman's disease, leaving the Commission with no competent medical evidence on which to base an apportionment. Quoting from respondents' brief:

This section (I.C. § 72-406) has been cited by the Supreme Court with approval in Scott v. Aslett Constr. Co., 92 Idaho 834, 452 P.2d 61. The Court held it was for the Commission to determine if there was competent and substantial evidence on which it could make an apportionment between a pre-existing condition which resulted in disability and the disability from injury or disease for which claimant seeks compensation. In the instant case the Commission felt there was not substantial and competent medical evidence which would permit them to apportion. This finding, though there is conflicting evidence, i. e., Dr. Cutler, should be binding and not overturned on appeal. (Emphasis added.)

Respondent's reliance upon Scott v. Aslett, supra, is misplaced. For one thing, Scott v. Aslett can not stand as an authoritative interpretation of I.C. § 72-406 because the present version of that statute did not become effective until January 1, 1972 more than three years after Scott v. Aslett was decided. Secondly, Scott itself is far removed from the facts of this case and, moreover, involved a situation where the Commission did apportion 40% to the claimant's pre-existing condition of osteoarthritis and granted 60% recovery for injuries sustained in a fall from a caterpillar tractor. Finally, respondent misses the holding in Scott. That case deferred in turn to the earlier case of Wilson v. Gardner Associated, Inc., 91 Idaho 496, 426 P.2d 567 (1967), where, according to the Scott Court, we had made our most "exhaustive review of Idaho's legislative history and case law" on the question of apportionment and had concluded as follows:

The further rule which emerges particularly from the Wilson v. Gardner case is that, "By I.C. § 72-323 the board is authorized and required to apportion the degree and duration of disability between the injury resulting from the accident and that resulting from any preexisting injury or infirmity." (Emphasis added.)

Scott v. Aslett Constr. Co., 92 Idaho at 841, 452 P.2d at 68. See also Zipse v. Schmidt Bros., 66 Idaho 30, 154 P.2d 171 (1944).

The statute governing apportionment between a pre-existing condition and an accident which was in effect at the time of the Scott and Wilson cases, was ch. 155, § 1, 1941 Idaho Sess. Laws 310 (as noted above, this was later codified as I.C. § 72-323):

If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity the employer shall be liable only for the additional disability resulting from such accident.

In language even more squarely on point for the present case, another statute in effect at that time also provided for apportionment between a pre-existing infirmity and an aggravating occupational disease :

(W)here an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated, or in any wise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death. (Emphasis added.)

Ch. 161, § 2, 1939 Idaho Sess. Laws 286 (later codified as I.C. § 72-1208). Under either of those earlier statutes, therefore, the Commission had the obligation to apportion the injury or occupational disease among its contributing causative factors and to award benefits, regardless of how small the resulting percentages might be. See, for example, the second Dean case, Dean v. Dravo Corp., 97 Idaho 158, 540 P.2d 1337 (1975), in which the Commission apportioned 2/3 of 5% of a permanent partial disability to work-related causes and awarded benefits accordingly. We are cited to and can find no precedent for the procedure followed by the Commission in this case where it held that a worker's disability is "the result of many factors, including . . . working conditions," but then denied benefits because the "working conditions" were only a "slight" rather than a "major" aggravating cause.

It seems more likely, therefore, that the Commission's conclusion that claimant's "disability may not be apportioned among contributing causes" and its enigmatic reference to I.C. § 72-406 is a reference not to the difficulty or impossibility of making an apportionment, but rather to what the Commission considers to be a lack of statutory authority for making an apportionment under the facts of this case, where it is undisputed that claimant's disability is not "less than total," and is permanent as well. The controlling statute, I.C. § 72-406, was enacted as part of the comprehensive revision in 1971 but has not been authoritatively construed by this Court prior to today. In relevant part, it reads as follows:

Deductions for preexisting injuries and infirmities. (1) In cases of permanent disability less than total, if the degree or duration of disability resulting from an industrial injury or occupational disease is increased or prolonged because of a preexisting physical impairment, the employer shall be liable only for the additional disability from the industrial injury or occupational disease.

This is the key language: "In cases of permanent disability less than total." Here the Commission found claimant totally and permanently disabled. The Commission was therefore correct in concluding that the 1971 statute differed from those it replaced by not providing for apportionment among causative factors in a total and permanent disability case. It does not follow from this conclusion, however, that the Commission was required to deny benefits entirely. On the contrary, having found that Bowman's "working conditions" contributed, even slightly, to a disability which is total and permanent, such permanent and total disability is fully compensable. The entire compensation, however, is not chargeable to the employer and his surety. I.C. § 72-332, which was enacted in 1971 at the same time that I.C. § 72-406 was enacted and apparently in conjunction therewith, provides in part:

If an employee who has a permanent physical impairment from any cause or origin, incurs a subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the preexisting impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the preexisting impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his compensation benefits out of the special industrial indemnity fund.

There is much to recommend the present statutory policy, which is but a return to the law of Idaho as of earlier days:

"Where injury results partly from accident and partly from pre-existing disease, it is compensable if the accident hastened or accelerated the ultimate result, and it is immaterial that the claimant would, even if the accident had not occurred, have become totally disabled by the disease."

Hamlin v. University of Idaho, 61 Idaho 570, 576, 104 P.2d 625, 627 (1940). The reason why a total and permanent disability is fully compensable, even though resulting partly from a pre-existing condition, was well expressed by the Supreme Court of Michigan in a most thoroughly considered case:

Nothing is better settled in compensation law than that the act takes the workmen as they arrive at the plant gate. Some are weak and...