Fackenthall v. Eggers Pole & Supply Co.

• Decision Date: 09 December 1940
• Docket Number: 6814
• Citation: 62 Idaho 46,108 P.2d 300
• Parties: HARP FACKENTHALL, Appellant, v. EGGERS POLE & SUPPLY COMPANY, a Corporation (Sometimes Called EGGERS POLE COMPANY), Employer, and NORTHWEST INDEMNITY EXCHANGE, Surety, Respondents
• Court: Idaho Supreme Court

108 P.2d 300

62 Idaho 46

HARP FACKENTHALL, Appellant, v. EGGERS POLE & SUPPLY COMPANY, a Corporation (Sometimes Called EGGERS POLE COMPANY), Employer, and NORTHWEST INDEMNITY EXCHANGE, Surety, Respondents

No. 6814

Supreme Court of Idaho

December 9, 1940

WORKMEN'S COMPENSATION-MODIFICATION OF AWARD-CHANGE OF CONDITION - BURDEN OF PROOF-EXPERT TESTIMONY-OPINION EVIDENCE.

1. The burden of proof rests on party who seeks an order by Industrial Accident Board declaring a change in conditions arising from an injury sustained by claimant, and where there is no change in condition board cannot rehear case on its merits and determine under the evidence that claimant was totally disabled and had been since his injury and make an award increasing his weekly compensation. (I. C A., sec. 43-1407.)

2. Supreme Court would not disturb findings of Industrial Accident Board in proceedings for modification of compensation award on ground of change in claimant's physical conditions, where witnesses had personally appeared and testified before board and evidence was of such nature as might lead different minds to different conclusions. (I. C A., sec. 43-1407.)

3. The rule that positive expert testimony will prevail over negative expert testimony does not imply that negative expert testimony may not be considered by triers of facts, but that in weighing testimony as between those who testify to a positive and those who testify to a negative, testimony of the one who testifies to positive should have greater weight than the one who testifies to negative.

4. Ordinarily, more weight should be given to testimony of one who testifies from first hand knowledge than to testimony of one who testifies on a hypothetical state of facts.

5. Evidence before Industrial Accident Board on claimant's application for modification of compensation award on ground of alleged change in claimant's physical conditions was not sufficient to require board to find that a "change in conditions" had occurred within meaning of Compensation Act, and hence denial of application was proper. (I. C. A., sec. 43-1407.)

6. Burden of proof was on claimant in claimant's proceeding for modification of compensation award on ground of alleged change in claimant's physical conditions. (I. C. A., sec. 43-1407.)

APPEAL from the Industrial Accident Board.

By agreement between parties, claimant was awarded and paid approximately $ 273.63. Application by claimant, for modification of agreement, denied and action dismissed, from which order claimant appeals. Affirmed.

Order affirmed. No Costs awarded.

E. B. Smith, Samuel F. Swayne and Hawley & Worthwine, for Appellant.

The rule to the effect that the appellate court should not disturb the findings of the Industrial Accident Board is based on the theory that in the trial of a case depending wholly on questions of fact, the board, having witnesses before it, hearing their testimony, observing their manner of testifying, and able to observe their appearance and deportment while under examination, is better acquainted to judge the weight to be given their testimony than is the appellate court; but where expert testimony is, as in the case under consideration, matter of opinion, and there is no conflict in the evidentiary facts upon which such opinion is based, such rule does not apply. (Bane v. Gwinn, 7 Idaho 439, at 446, 447, 63 P. 634; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605; Hillman v. Utah Power & Light Co., 56 Idaho 67, 51 P.2d 703; 22 C. J., sec. 823, at 733; 42 L. R. A. Digest 753 et seq.)

The testimony of a medical expert has no probative value unless based upon all the material facts proven. A doctor's opinion in respect to a hypothetical question has no weight if the question does not contain all the material facts, or if it contains hearsay, or if based upon other incompetent evidence. (Evans v. Cavanagh, 58 Idaho 324, 73 P.2d 83; Cochran v. Gritman, 34 Idaho 654, 203 P. 289; Osborn v. Carey, 24 Idaho 158, 132 P. 967; Barnett v. Atchison, T. & S. F. Ry. Co., 99 Cal.App. 310, 278 P. 443.)

Where a compensation agreement was entered into or an award made upon the theory that the employee's injury was temporary, and it later transpires that the injury is permanent, there is a sufficient showing of change in condition to warrant reopening the case. (Hustead v. H. E. Brown Timber Co., 52 Idaho 590, 17 P.2d 927.)

The "change in conditions" contemplated by I. C. A., section 43-1407, embraces any change in condition. (I. C. A., sec. 43-1407; Amerada Petroleum Corp. v. Williams, 134 Okla. 177, 272 P. 828; Jenkins v. Boise Payette Lbr. Co., 49 Idaho 24, 287 P. 202; Hustead v. H. E. Brown Timber Co., 52 Idaho 590, 17 P.2d 927; Boshers v. Payne, 58 Idaho 109, at 112, 70 P.2d 391.)

Ralph S. Nelson and Spencer Nelson, for Respondents.

The compensation agreement entered into in this case on January 4, 1936, is final unless it has been proven by the claimant that he has suffered a "change of condition" due to the injury of July 29, 1935. (Zapantis v. Central Mining & Milling Co., 61 Idaho 660, 106 P.2d 113; Rodius v. Coeur d' Alene Mill Co., 46 Idaho 692, 271 P. 1; Boshers v. Payne et al., 58 Idaho 109, 70 P.2d 391; Reagan v. Baxter Foundry & Machine Works, 53 Idaho 722, 27 P.2d 62; Barry v. Peterson Motor Co., 55 Idaho 702, 46 P.2d 77; Van Blaricom v. Export Lumber Co., 52 Idaho 459, 16 P.2d 990.)

The burden of proof was upon the claimant to prove (a) that there was a change in claimant's physical condition subsequent to the signing of the compensation agreement, January 4, 1936, and, (b) that such change of physical condition can be reasonably traced to the injuries received July 29, 1935. ( Boshers v. Payne et al., supra.)

The testimony of physician who has treated a workman for months and examined him on several occasions is entitled to great weight. (Hawkins v. Bonner County et al., 46 Idaho 739, 271 P. 327; Delich v. Lafferty Shingle Mill Co., 49 Idaho 552, 290 P. 204.)

The testimony of Dr. Robertson, part of which was that the man had a broken coccyx, which obviously was a mistake upon the part of the doctor, and all of which evidence is uncertain, indefinite and speculative, is not sufficient to demand that the board reopen an award made by the board years prior to such testimony. (Larson v. Ohio Match Co. et al., 49 Idaho 511, 289 P. 992; Boshers v. Payne et al., supra.)

AILSHIE, C. J. Budge, Givens and Holden, JJ., concur. Morgan, J., did not sit at the hearing or participate in the opinion.

OPINION

AILSHIE, C. J.

July 29, 1935, appellant received an injury to his back while in the employ of respondent Eggers Pole & Supply Co. Subsequently an agreement was reached between appellant and the employer and respondent Northwest Indemnity Exchange, hereinafter referred to as surety, which agreement was approved by the board January 14, 1936; and by the terms of which appellant was paid the sum of $ 273.63 for "temporary disability for work" for the period from July 30 to December 24, 1935. Appellant went back to work in May, 1936, and worked during the remainder of the year 1936. Some time in the fall of 1936, while at his home, he injured himself by stepping on a plank; the bark came off and he fell and bumped his elbow. He went to Dr. Hopkins who examined and X-rayed him. He thereafter improved so that he again went to work and pursued different occupations until some time in the fall of 1938. He also did considerable work in the late winter and early spring of 1939. July 25, 1939, he filed his application with the board for modification of the award, on the ground of a change in conditions. (I. C. A., sec. 43-1407.) The essential grounds on which the petition is predicated are stated in the petition as follows:

"That this condition [original injury] has continued to get worse ever since and there has developed therefrom as claimant is advised by Doctors whom he has consulted a condition or ailment which did not exist at the time of the injury or at the date of the agreement with the surety. That claimant is unable to state the technical name for this condition but as he is advised and understands from his physician that it is a bone and nerve disorder caused by irritation set up by a detached coccyx (piece of tail bone); That claimant is unable financially to consult specialist or to have the necessary x-rays taken to technically diagnose the condition of this claimant except that it has been called Arthritis by his Doctor."

A hearing was had on this petition March 19, 1940, and the board thereafter made exhaustive findings, the essential portion of which is stated as follows:

"That the degeneration of the spinal cord of which claimant is suffering is a disease and is not the result of the claimant's injury sustained by him in July, 1935, and has not been contributed to by the injury of July 29, 1935; that claimant is now totally disabled for work as a result of said degeneration of the spinal cord and that his disability is not the result of the injury by accident sustained by him on the 29th day of July, 1935, as above stated; that while claimant is now totally disabled for work as a result of the degeneration of the spinal cord, there has been no change in conditions due to his injury by accident sustained by him on said July 29, 1935."

and thereupon the board denied and dismissed the application.

It would be useless to attempt to recite the testimony in this case. The...