Close v. General Construction Co.

• Decision Date: 22 October 1940
• Docket Number: 6764
• Citation: 61 Idaho 689,106 P.2d 1007
• Parties: C. G. CLOSE, Respondent, v. GENERAL CONSTRUCTION COMPANY and STATE INSURANCE FUND, Appellants
• Court: Idaho Supreme Court

106 P.2d 1007

61 Idaho 689

C. G. CLOSE, Respondent, v. GENERAL CONSTRUCTION COMPANY and STATE INSURANCE FUND, Appellants

No. 6764

Supreme Court of Idaho

October 22, 1940

WORKMEN'S COMPENSATION-SPECIFIC INDEMNITY-SUBSEQUENT AWARD.

1.The compensation law provides a special remedy not known to the common law, and the act itself deprives the workman of his common-law right and provides indemnities specified in lieu thereof.(I. C. A., sec. 43-901 et seq.)

2.The legislature, in enacting Workmen's Compensation Law intended to grant indemnity for each specific injury enumerated therein and comparable indemnities for other cases not enumerated, and each indemnity was intended to be independent from every other indemnity, and it was not intended that credits should be made for lesser indemnities where a larger one is subsequently awarded.(I. C. A., secs 43-901 et seq., 43-1113.)

3.The legislature, in fixing schedule of indemnities for loss of a member of body under Workmen's Compensation Law, intended to take into consideration in some measure the pain and suffering and physical and financial loss which workman sustains by reason of one of these injuries, along with loss of earning power.(I. C. A., secs. 43-901 et seq., 43-1113.)

4.Employer and insurance carrier were not entitled to have a credit of specific indemnity awarded highway construction employee for partial loss of leg against a subsequent award for total loss of leg, upon a change in employee's condition necessitating amputation of leg about four inches below the knee.(I. C. A., secs. 43-907 et seq., 43-1113.)

APPEAL from the Industrial Accident Board.

Proceeding for compensation under the Workmen's Compensation Law.From order of board, granting compensation to plaintiff for permanent partial disability, defendants have appealed.Affirmed.

Award affirmed.Costs to respondents.

Clarence L. Hillman, for Appellants.

Respondent having sustained a compensable injury by accident arising out of and in the course of his employment resulting in the loss of his right leg between the knee and the ankle, he is entitled under the provisions of section 1, chapter 164 of the Session Laws of 1939, as then in force, to 99 per cent of 140 weeks at $ 13.10 per week, but, since he has been awarded and paid compensation on the basis of 99 per cent of 62 1/2 weeks at $ 13.10 per week, the amount so awarded and paid should be deducted from the amount he is entitled to receive for the loss of said portion of his right leg; and the same rule applies with respect to payment of money to the state treasurer to be deposited in the Industrial Special Indemnity Fund. (1929 Laws, chap. 164, sec. 1(relative to specific indemnities for certain injuries);1917 Laws, chap. 81, secs 49,56and57;I. C. A. , secs. 43-1407,43-1408,43-1409;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;Reagan v. Baxter Foundry & Machine Works et al.,53 Idaho 722, 27 P.2d 62;Barry v. Peterson Motor Co.,55 Idaho 702, 46 P.2d 77.)

E. B Smith and Carroll F. Zapp, for Respondent.

In determining specific indemnities, disability for work occasioned by the loss of the various members of the body enumerated in I. C. A., sec. 43-1113, is not to be taken into consideration.The statute provides specific indemnities for permanent injuries, occasioned by loss of members, "in addition to all other compensation".(I. C. A., secs. 43-1113(prior to 1937amendment);Leach v. Grangeville Highway Dist.,55 Idaho 307, 41 P.2d 618;Kelley v. Prouty,54 Idaho 225, 30 P.2d 769;Haugse v. Sommers Bros. Mfg. Co.,43 Idaho 450, 254 P. 212, 51 A. L. R. 1438.)

AILSHIE, C. J. Budge, Givens, and Holden, JJ., concur.Morgan, J., did not sit at the hearing nor participate in the opinion.

OPINION

AILSHIE, C. J.

--Respondent, a married man, was employed by the General Construction Company, appellant, in highway construction work in Nez Perce county.April 11, 1931, during the regular course of his employment, a falling tree struck respondent causing a compound fracture of his right leg.Appellant was notified of the accident and injury and, April 29, 1931, claim for compensation was filed with the Industrial Accident Board.From the date of the accident to November 12, 1931, a period of 30 weeks and 6 days, respondent was totally disabled, during which time he was provided with medical and hospital attendance, and was paid compensation at the rate of $ 13.10 per week, totalling $ 406.10.

January 15, 1932, the parties entered into a compensation agreement, approved by the accident board, whereby appellants paid respondent compensation "for his estimated permanent partial disability for work, suffered comparable to 60% of the loss of one leg at the ankle joint, being 99% of 62 1/2 weeks at $ 13.10 per week, totalling $ 810.56."Summary and award, based on the agreement, was approved by the board January 21, 1932.

January 21, 1939, a change occurred in respondent's condition, due to the impairment of circulation in the right foot and leg below the knee.On account of the change in condition, it became necessary, March 10, 1939, to amputate respondent's right leg about four inches below the knee.June 12, 1939, respondent was surgically healed, with a permanent partial disability resulting from the loss of the leg by amputation.It was necessary to secure additional medical, hospital, nursing and other expenses in the sum of $ 461.13, together with the sum of $ 269.80 (compensation for total temporary disability for work from January 21 to June 11, 1939) which liability appellants have agreed to assume.

August 24, 1939, counsel for the respective parties entered into a stipulation, agreeing to the above facts as stated, but being unable to agree as to the amount of compensation to which respondent is entitled on account of the amputation of his leg,--claimant insisting that he is entitled to compensation as provided in section 43-1113, I. C. A., for 99 per cent of 140 weeks at $ 13.10 per week, without deducting the amount previously paid under the terms of the former agreement, namely, 99 per cent of 62 1/2 weeks at $ 13.10 per week; and appellants insisting that the latter amount should be deducted from 99 per cent of 140 weeks at $ 13.10 per week.Upon the stipulated facts, the matter was submitted to the board for decision.September 15, 1939, the board entered the following award:

"WHEREFORE, IT IS ORDERED, AND THIS DOES ORDER, That the claimant, C. G. Close, be, and he hereby is, awarded against the defendants, General Construction Company, employer, and State Insurance Fund, surety, and each of them, compensation for his permanent partial disability at the rate of $ 13.10 a week for a period of 99% of 140 weeks, and for compensation at the rate of $ 13.10 a week from the 21st day of January, 1939, to the 11th day of June, 1939, and for the further sum of $ 461.13.

"IT IS FURTHER ORDERED, AND THIS DOES ORDER, That the defendants, General Construction Company, employer, and State Insurance Fund, surety, and each of them, immediately pay to the State Treasurer to be deposited in the Industrial Special Indemnity Fund the sum of $ 36.68."From the above order, in so far as the same allows respondent compensation "in excess of 99% of 77.5 weeks at $ 13.10 per week; and the sum of $ 36.68 to the State Treasurer" for deposit in the special indemnity fund "in excess of $ 20.30,"defendants have appealed.

The...