Egus v. Triumph Min. Co.

• Decision Date: 16 May 1951
• Docket Number: No. 7668,7668
• Citation: 232 P.2d 136,71 Idaho 354
• Parties: EGUS v. TRIUMPH MIN. CO. et al.
• Court: Idaho Supreme Court

Page 136

232 P.2d 136

71 Idaho 354

EGUS v. TRIUMPH MIN. CO. et al.

No. 7668.

Supreme Court of Idaho.

May 16, 1951.

Rehearing Denied June 18, 1951.

Frank L. Benson, Henry F. Reed, Boise, for appellant.

E. B. Smith, Boise, for respondents.

PORTER, Justice.

Felix Egus, claimant and appellant herein, sustained a leg injury January 6, 1944, in Blaine County, while in the employ of respondent, Triumph Mining Company. Claimant duly filed with the Industrial Accident Board his notice of injury and claim for compensation on January 10, 1944, and his petition for hearing on March 9, 1946. Respondents filed their answer on September 10, 1946. A hearing before the Industrial Accident Board was held on the 25th and 27th of September, 1946, and resulted in an award to claimant made and entered October 12, 1946.

On January 5, 1948, claimant filed an application for modification of the award made on October 12, 1946. It will be noted that this application was filed one day prior to the expiration of the four-year period for filing such an application for modification as provided by Section 72-607, I.C. By such application claimant alleged, among other things:

'I. Claimant alleges that since such award was made his physical condition has changed, in that he now suffers a much greater degree of pain in his back and legs and that he cannot move or use his legs and back to the extent that he could at the time at the said award was made.

'II. Claimant is advised and therefore alleges on information and belief that his condition will become progressively worse and that his disablility will increase in the future.

'Claimant does not ask for an immediate hearing on this application but files the same in order that he may not be barred from the compensation to which he will be entitled for the increase in the disability resulting from his permanent injury and also for compensation to which he will be entitled in the event he becomes totally disabled for work.'

On May 11, 1948, respondents filed a petition for hearing on such application, and made demand upon claimant to report for physical examination at the office of local physicians. On July 30, 1948, respondents filed answer to the application for modification.

Apparently, on August 13, 1948, Mr. Frank L. Benson attorney for claimant, received a letter from Leo H. Houtz, member of the Industrial Accident Board, stating that the board was ready to hear the case during the week beginning August 30. Mr. Benson, in reply, wrote a letter to Mr. Houtz suggesting that he was presently not in touch with his client and stating further, 'However, irrespective of whether or not he can be found I should like to protest the setting of his case at this time. When the case was first heard the evidence showed that he was afflicted with arthritis and that his condition was gradually becoming worse. It is my opinion that it will only be a matter of time until he becomes totally disabled; and I cannot see how it can in any way be fair to require that the hearing be held at this time when his disability is not as great as it will ultimately become.'

For reasons not disclosed by the transcript, no further action was taken in the matter until January 24, 1950, when the case was finally set for hearing by the Industrial Accident Board for February 3, 1950, at 10 o'clock A. M., at the offices of the board in Boise, Ada County. Due notice of the time and place of hearing was given to Mr. Benson as attorney for claimant. It thus appears that the time fixed for the hearing was more than six years after the accident and more than two years after the application for modification was filed.

At the time fixed for the hearing, counsel for respondents appeared but neither claimant nor his counsel appeared. After waiting one hour, upon motion of counsel for respondents, the board entered its order dismissing claimant's application for modification of award. During the course of his motion, respondents' counsel introduced in evidence a letter from Fred A. Pittenger and M. B. Shaw, physicians and surgeons, dated May 19, 1948, wherein they stated the results of their examination of claimant on that date and that claimant 'is still surgically healed as stated, and there apparently has been no change in his condition.' On April 28, 1950, claimant filed a petition to set aside the order of dismissal. On May 9, 1950, claimant filed notice of appeal from the order of dismissal.

By his first assignment of error, appellant alleges that: 'The Industrial Accident Board erred in setting this matter for hearing for the reason that the 'Aplication for Modification' shows that appelant's disability is gradually increasing and it would be unfair to require that compensation be based on his disability as of the time the 'Application for Modification' was filed.' Section 72-607, I.C., reads as follows: 'On application made by any party within four years of the date of the accident causing the injury, 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 act, and shall state its conclusions of fact and rulings of law, and immediately send to the parties a copy of the...