Dawson v. Hartwick
| Decision Date | 29 May 1967 |
| Docket Number | 9857,Nos. 9856,s. 9856 |
| Citation | 91 Idaho 561,428 P.2d 480 |
| Parties | George H. DAWSON, Claimant-Respondent, v. Don HARTWICK dba Log Tavern, and Guaranty National Insurance Company, Defendants-Appellants. George H. DAWSON, Claimant-Respondent, v. Anthony E. BRITT dba Royal Lounge and Transamerica Insurance Company, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Coughlan & Imhoff, Boise, for appellants Don Hartwick dba Log Tavern and Guaranty National Ins. Co.
Moffatt, Thomas, Barrett & Blanton, Boise, for appellants Anthony E. Britt dba Royal Lounge and Transamerica Ins. Co.
Rayborn, Rayborn & Rayborn, Twin Falls, for respondent.
The cases of George H. Dawson v. Don Hartwick dba Log Tavern, and Guaranty National Insurance Company; and George H. Dawson v. Anthony E. Britt dba the Royal Lounge, and Transamerica Insurance Company, have been consolidated for appeal. The matter comes before the court for a determination of the liability of employers-appellants the Log Tavern and the Royal Lounge, and their respective compensation sureties, for payment of an award apportioned by the Industrial Accident Board against them in favor of claimant-respondent George H. Dawson. The case involves low back injuries sustained by respondent in successive employments with the appellants-employers which, the Board found, resulted from compensable accidents within the scope of respondent's employment, entitling respondent to workmen's compensation benefits for the injuries received.
Both sets of appellants contest the allowance of the award; and the principal issues raised by the assignments of error of the respective appellants may be summarized in the manner of the following questions:
(1) Did respondent suffer on September 9, 1963 an injury resulting from a compensable accident, as that term is understood in the Workmen's Compensation Law, while in the employ of appellant Log Tavern?
(2) Was the resultant disability of respondent in part caused by an already existing back impairment, making appellant Log Tavern or its compensation surety liable for only such additional disability as was caused by the injury of September 9th?
(3) On March 30, 1965, did respondent, while in the employ of appellant Royal Lounge, sustain injuries resulting from a compensable accident, thus entitling him to workmen's compensation benefits?
(4) Was the Board correct in its apportionment of part of the resulting disability occasioned by the injury of March 30th between appellants Log Tavern and Royal Lounge?
Respondent, a resident of Kimberly, Idaho, first injured his back in either 1948 or 1949 in an automobile accident. The resultant injury caused him to miss work for some time, but a record of the medical diagnosis of the attending physician was not available at the hearing before the Board. However, surgery was not required, and respondent apparently received effective conservative treatment of his back injury. Thus, following recovery, respondent was able to return to his former employment, which entailed strenuous physical labor, without impairment as a result of that injury.
While employed by a moving company in 1954, respondent strained his back moving a piano. This caused respondent to miss about ten days of work. Until the injury sustained on September 9, 1963, respondent experienced no further difficulty with his back. This is evidenced by the fact that in the interim respondent was able to work regularly in several different occupations, some of which involved hard physical labor.
On September 9, 1963, respondent was employed as a bartender at the Log Tavern in Twin Falls, Idaho. That evening, about one hour before the end of his shift, respondent, while stooping down to lift a case of empty bottles with the intention of moving it, felt a sudden and severe pain in his lower back and was hardly able to straighten up. He had to sit down and finally left before his shift was finished, without doing any further work. The next day respondent reported for work and told his employer of the incident the previous evening. He continued working for two to three weeks but had great difficulty in doing so. He suffered persistent pain with attendant numbness localized generally in the right leg and hip.
On account of this difficulty, respondent consulted a physician on October 7, 1963, and on this date he made a formal claim upon his employer for compensation. The doctor prescribed conservative treatment for the apparent back injury; and when that proved unsuccessful, respondent obtained permission to visit Dr. Deward J. Kiefer, a neuro-surgeon of Boise. Dr. Kiefer made a preliminary diagnosis of lumbosacral disc protrusion on the right and hospitalized respondent for myelography and probable laminectomy. The result of the myelogram was positive and supported the preliminary diagnosis and Dr. Kiefer scheduled respondent for surgery.
On October 26, 1963 Dr. Kiefer performed a lumbar laminectomy, and a large disc protrusion at the first sacral nerve root, central in location, but mainly to the right, was discovered. The doctor in routine fashion removed the disc, which was mushy and grossly degenerated. Respondent was discharged from the hospital on November 4, 1963. The following April 16, 1964, the respondent was pronounced surgically healed with residual partial permanent disability of 10% as compared to the loss of a leg at the hip.
Appellant Log Tavern and its compensation surety, Guaranty National Insurance Company, contested the claim which respondent had filed against them growing out of the incident of September 9, 1963. However, on June 22, 1964, the parties were able to reach a compensation agreement, subsequently approved by the Board on June 29th. The compensation agreement was a compromise settlement based upon doubtful liability as is evidenced by the following language from the premise of that agreement:
'Claimant's right to compensation under the Workmen's Compensation Law is a disputed matter, both medically and factually, defendants contending that Claimant's disability and medical treatment are the result of pre-existing conditions and accidents not in anywise related to any employment with the defendant employer herein, and it being recognized by the parties that in the event of litigation the outcome would be uncertain and would entail extensive delay and expense and in view of the above, it is stipulated by the parties that it is to their best interest to settle the cause.'
Notwithstanding the foregoing language, which is usually a predicate to a lump sum settlement pursuant to I.C. § 72-321, Session Laws 1951, ch. 123, the agreement expressly recognizes respondent's retention of his right to modification under I.C. § 72-607, as amended Session Laws 1957, ch. 40. Following the injury of September 9th, respondent's total allowance is summarized as follows:
Total temporary compensation: $1,420.74
(Oct. 10, 1963 to April 16, 1964--paid on a voluntary
basis pursuant to I.C. § 72-319)
Medical and kindred expenses 929.91
Specific indemnity for partial permanent 540.00
disability
---------
$2,890.65
The compensation agreement specifically provided that the payments were voluntarily made without admission of liability; consequently, all defenses available to appellant Log Tavern and its compensation surety, Guaranty National, were saved in the event of a subsequent petition for modification.
The specific preservation of defenses incorporated in the compensation agreement in this case distinguishes it from the holdings in such cases as Limprecht v. Bybee, 76 Idaho 293, 281 P.2d 1047; Nitkey v. Bunder Hill & Sullivan Mining & Concentrating Co., 73 Idaho 294, 251 P.2d 216; Blackburn v. Olson, 69 Idaho 428, 207 P.2d 1160; Zapantis 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, which have ruled that a compensation agreement approved by the Board has the same effect as an award of the Board; and, therefore, the compensation agreement, where no appeal is taken, becomes final and conclusive and is res adjudicata on all questions which might have been raised as well as to all questions which were raised when the compensation agreement was approved by the Board. Thus, in the case of Blackburn v. Olson, supra, the court held that no appeal having been taken, the compensation agreement was res adjudicata on the question whether the claimant was or was not engaged in covered employment. See also Evans v. Continental Life and Accident Company, 88 Idaho 254, 398 P.2d 646; Skelly v. Sunshine Mining Co., 62 Idaho 192, 109 P.2d 622; Reagan v. Baxter Foundry Etc. Wks., 53 Idaho 722, 27 P.2d 62.
Sometime in the summer of 1964, probably in June, respondent, who had been working part time tending bar following recovery from the injury sustained in September, 1963, became steadily employed as a manager at the Royal Lounge in Twin Falls. As manager, respondent was responsible for the premises, made out the payroll, and did the banking in addition to taking his regular shift as bartender. While respondent tired more easily after being on his feet all day than prior to the 1963 disc injury, he did not have any pain and was able to work regularly at his new job.
On March 30, 1965, respondent again injured his back. The plumbing connected with an ice machine at the tavern became clogged, and respondent contacted a plumber to have the condition corrected. To clear the plumbing, the plumber opened a pipe in the basement and caught the clogged sewage in a square galvanized tub, which respondent helped carry up the stairs to the floor above and empty into the alley. Two such trips were made; the first tub, three quarters full, weighed over one hundred pounds. The...
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