Ellison v. Bunker Hill Co., 11567

• Decision Date: 15 November 1974
• Docket Number: No. 11567,11567
• Citation: 528 P.2d 199,96 Idaho 317
• Parties: Ralph ELLISON, Sr., Claimant-Appellant, v. The BUNKER HILL COMPANY (Selflnsured), Defendant-Respondent.
• Court: Idaho Supreme Court

Page 199

528 P.2d 199

96 Idaho 317

Ralph ELLISON, Sr., Claimant-Appellant, v. The BUNKER HILL COMPANY (Selflnsured), Defendant-Respondent.

No. 11567.

Supreme Court of Idaho.

Nov. 15, 1974.

Frank H. Powell, Coeur D'Alene, for claimant-appellant.

James P. Keane, of Brown, Peacock, Keane & Boyd, Kellogg, for defendant-respondent.

DONALDSON, Justice.

This appeal places in issue the sufficiency of the findings of fact and conclusions of law entered by the Industrial Commission of the State of Idaho in the application of Ralph Ellison, the appellant. For the reasons stated in this opinion, the Order of the Industrial Commission is reversed and remanded.

The appellant worked underground at Bunker Hill continuously from 1955 to 1969. In 1969 he began working at the smelter. His employment immediately prior to 1955 consisted of fourteen years as a salesman. He was continuously exposed to hardrock dust while working underground. His only other exposure to such dust was for three days, occurring thirty-one years before. The appellant claims that as of August 15, 1971, he has been totally disabled as a result of silicosis caused by his employment at Bunker Hill.

Upon appellant's application for workmen's compensation, the Industrial Commission held the necessary hearing. The Commission entered findings of fact ¹ and a conclusion of law ² leading to the Order that the application for compensation be dismissed. From that Order this appeal is taken.

'Dr. John Brockley, a radiologist, also testified on behalf of the defendants. His testimony was similar to that presented by Dr. Powell in his interpretation of the series of x-rays. In Dr. Brockley's opinion the x-rays disclosed no change in the calcification present in the claimant's lungs from 1955 to 1972. The x-rays, however, disclosed considerable increase in the evidence of emphysema. Dr. Brockley did not interpret the x-rays as showing any evidence of eggshell calcification, the presence of which indicates silicosis, although Dr. Whitehouse had indicated that he say some evidence of this in the x-ray he had examined in 1971. In Dr. Brockley's opinion the claimant was not suffering from silicosis.'

On such appeal this Court is empowered to review only questions of law. Nenoff v. Culligan Soft Water, 95 Idaho 834, 521 P.2d 658 (1974); Madron v Green Giant Co., 94 Idaho 747, 497 P.2d 1048 (1972). However, as we stated in Nenoff, such review is impossible when the Industrial Commission fails in its function as factfinder. Here, as in Nenoff, the Commission's findings of fact are merely 'a recitation of the allegations, contentions, and testimony of the parties.' 95 Idaho 834, 836, 521 P.2d 658, 660. This failure to resolve the factual conflicts in the evidence prevents this Court from fulfilling its constitutional obligation of evaluating the conclusions of law entered by the Commission and to review the basis of the Commission's decision.

Therefore the Order is reversed, and the matter remanded to the Commission for additional proceedings and either party may petition the Commission to reopen the case and th submit additional evidence. Costs to appellant.

SHEPARD, C. J., and McQUADE, McFADDEN and BAKES, JJ., concur.

1 'FINDINGS OF FACT

'I

'The claimant, who was born February 29, 1912, began his employment with the defendant, Bunker Hill Company, in fall of 1955 as an underground miner. His principal previous occupation had been as a salesman in Missouri for approximately 14 years. He had not previously been employed in the mining industry except for a period of approximately three days prior to working for the Bunker Hill Company. The claimant was employed continuously by the Bunker hill Company until August 1971, except for brief breaks in his employment of not to exceed two months duration, and one break of eight months during which a strike closed the mining operation. The claimant worked as an underground hard rock miner in various jobs, including miner's helper and driller, until some time in the year 1969.

'II

$'The claimant began to experience symptoms of shortness of breath in the period from 1965 to 1968. During the period be worked underground, he was exposed to hard rock dust. In 1969 the claimant was transferred and worked in the smelter until August 1971. He was exposed to smoke and dust in the smelter and his symptoms of shortness of breath increased during this time. He stopped his employment in August 1971 and sought medical advice. At the time of the hearing the claimant complained of shortness of breath and much difficulty in breathing. He was unable to engage in any type of physical activity and was unable to walk for any distance greater than two blocks.

'III

'The claimant's application for hearing requests that he be awarded...