Graves v. American Smelting & Refining Co.

• Decision Date: 20 July 1964
• Docket Number: No. 9431,9431
• Citation: 394 P.2d 290,87 Idaho 451
• Court: Idaho Supreme Court
• Parties: Richard F. GRAVES, Employee, Claimant and Appellant, v. AMERICAN SMELTING & REFINING COMPANY, Self-Insured Employer, Defendant and Respondent.

Page 290

394 P.2d 290

87 Idaho 451

Richard F. GRAVES, Employee, Claimant and Appellant, v. AMERICAN SMELTING & REFINING COMPANY, Self-Insured Employer, Defendant and Respondent.

No. 9431.

Supreme Court of Idaho.

July 20, 1964.

McClenahan & Greenfield and Gideon H. Oppenheimer, Boise, for appellant.

H. J. Hull & Sons, Wallace, for respondent.

McFADDEN, Justice.

Claimant, Richard F. Graves, appeals from an award of the Industrial Accident Board, of permanent partial disability of 6% as compared to the loss of one arm at the shoulder, he contending that he is entitled to a larger award.

On September 12, 1963, claimant petitioned the Industrial Accident Board for hearing on his claim for permanent disability. He was injured while working for the American Smelting and Refining Company, a self-insurer, referred to herein as the employer. All allegations of the claimant's petition are admitted by the employer, except that claimant suffered any permanent partial disability.

On May 29, 1961, while employed by defendant, the claimant was injured in an accident that arose out of and in the course of his employment at the Page Mine. Claimant had been working with a partner on opening an old raise, in the mine, when rock started to slough. His partner was hit with some of the falling material, and claimant pulled his partner back to where they were protected by lagging. The machine they had been using was still on, and claimant went out from under the protection of the lagging, to turn it off when he also was struck by falling material.

Claimant's first examination by Dr. Robert W. Cordwell, on the day of the accident, indicated he has suffered multiple abrasions and contusions of his head, back, left shoulder and left arm. Two teeth were broken out of his upper denture. A probable cracked rib was also diagnosed, which diagnosis was confirmed by a subsequent examination a few days later. The Doctor's final report indicates claimant did not return for further treatment after June 16, 1961.

Written claim was submitted by claimant, and the defendant made payments for total temporary disability for the period of four weeks, and also paid all medical expenses.

Hearing was had on claimant's petition, before the Board. The only witness to testify was the claimant himself. Claimant submitted a written medical report of Dr. Knight, a physician and surgeon, who had examined him a month prior to the hearing. The Employer submitted a written report by Dr. Cordwell, who a few days before the hearing, had again re-examined the claimant and a report of Dr. Gallivan a radiologist.

Claimant testified that since the accident his injured shoulder has progressively gotten worse; it started paining him in the fall of 1961, so that he could no longer work as a miner, for he couldn't handle heavy machinery; that his shoulder aches at night; that since the accident, he has been employed as a painter; that he is able to work until noon on some days, other days until one or two o'clock, and able to work eight hours a day only because of his fortitude.

The Board considered the testimony and the statements of the Doctors, and entered an award in favor of claimant. The award approved payments previously made by the employer and further ordered payment of specific indemnity of 14.4 weeks at the rate of $30.00 per week beginning June 27, 1961, in the amount of $432.00. This award is based on the Board's finding that claimant's partial permanent disability attributable to and residual of the accident is equivalent to 6% as compared to loss of an arm at the shoulder.

Claimant appeals from the findings of the board and from the award. He challenges by his assignments of error certain specific findings of the board, asserting that the findings do not, as a matter of law support any of the rulings of law or the award, also asserting the board erred in admission of certain of the employer's exhibits, and finally contends the board erred in failing to fix permanent partial disability in accordance with the report of Dr. Knight.

Claimant properly contends that this court is not bound by the findings of the board, because the ultimate questions before the board were presented in documentary form, i. e., the written statements of the doctors, and that this court may review such statements and make its own evaluation of the facts therefrom. In re Markham's Inc., 79 Idaho 307, 316 P.2d 553, in reversing a finding by the board, this Court stated:

'The board is fundamentally a fact finding body. Its application of the law is incidental to its administrative function. (citing cases). It applies the law to the facts as found by it, not to facts found by some other officer or agency.

'In this situation there are two rules which govern our disposition of the cause. First: Insofar as the facts before the board were evidenced by written documents--the case for the agency consisted entirely of its written record--this court is not bound by the findings or conclusions of the board thereon, but will make its own determination from the written record. (citing cases). Second: Where, as here, the evidence is undisputed and without conflict, it becomes a question of law for this court to determine whether such evidence will support the conclusions reached by the board.'

Claimant particularly complains of the board's finding to the effect that his...