Hix v. Potlatch Forests, Inc., 9463

• Decision Date: 04 December 1964
• Docket Number: No. 9463,9463
• Citation: 397 P.2d 237,88 Idaho 155
• Parties: Gary Lee HIX, Employee, Claimant-Appellant, v. POTLATCH FORESTS, INC., Employer, and Workmen's Compensation Exchange, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 237

397 P.2d 237

88 Idaho 155

Gary Lee HIX, Employee, Claimant-Appellant, v. POTLATCH FORESTS, INC., Employer, and Workmen's Compensation Exchange, Surety, Defendants-Respondents.

No. 9463.

Supreme Court of Idaho.

Dec. 4, 1964.

Paul C. Keeton, Lewiston, for appellant.

Blake, Givens & Feeney, Lewiston, for respondents.

SMITH, Justice.

Appellant is herein referred to as the claimant, and the Industrial Accident Board as the Board.

This appeal presents the questions whether the Board's determination of the degree of claimant's partial permanent disability (residual of a personal injury caused by a compensation-covered accident) of 76.5% of 'the whole man', and its evaluation thereof in a like percentage of 400 weeks' compensation, is incorrect as a matter of law.

The issue has to do with the applicability of one or the other of two sections of the workmen's compensation law. The first, I.C. § 72-310(a), providing for total disability compensation (in amounts as of the time claimant sustained injury), in part reads:

'Total disability compensation.--Where the injury causes total disability for work, the employer during such disability shall pay the injured employee weekly compensation in accordance with the following schedule, subject to deductions, if any, on account of waiting period, partial disability, and limited wages, as set forth in sections 72-310(b), 72-310(c) and 72-310(d):

'(1) Workmen without Dependents.--To an injured employee without dependents, weekly compensation equal to 55% of his average weekly wages, but not more than $28.00 nor less than $12.00 per week for a period not exceeding 400 weeks, and thereafter a weekly compensation of $12.00 per week.

'* * *.'

The second, I.C. § 72-313, providing for specific indemnity for certain permanent injuries, in part reads:

'Specific indemnities for certain injuries.--(a) Specific Indemnity for Permanent Injury. An employee, who suffers a permanent injury less than total, shall, in addition to compensation, if any, for temporary total and temporary partial disability, be entitled to specific indemnity for such permanent injury equal to 60% of his average weekly wages, but not more than $30 nor less than $15 per week for the periods of time stated against the following scheduled injuries respectively:

'Specific Indemnity Schedule

[Then follows the schedule of bodily members and evaluation of each in weeks of compensation to be paid for loss of each member.]

'(b) Computation of Specific Indemnity for Non-scheduled Injuries. In all other cases of permanent injury, less than total, not included in the above schedule, the compensation shall bear such relation to the periods stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule. * * *'

The Board based its finding, as regards the extent of claimant's partial permanent disability, upon the opinions of three physicians, i. e., Dr. R. C. Colburn, 60% of a whole man; Dr. Richard B. Gardner, 65% to 70% of a whole man, and Dr. Jerome K. Burton, 90% of a whole man. The Board selected 76.5% of 'the whole man' as the fair average of those ratings, and evaluated it on the basis of 76.5% of 400 weeks, or 306 weeks, compensation at $30 a week.

The Board in its findings also mentioned the rating by Dr. R. C. Colburn of claimant's residual partial permanent disability in terms of loss and comparative loss of bodily members, i. e., 10% loss of the left foot at the ankle; 15% loss of the right foot at the ankle, and partial paraplegia comparable to 100% loss of an arm at the shoulder, I.C. § 72-313.

Claimant being dissatisfied with the award, particularly with the Board's evaluation of its rating, perfected this appeal.

Claimant by his specifications of error raises the issue whether the Board can adopt 'an arbitrary plan or basis for the computation of benefits provided for injured workmen'; and urges that the Board should have awarded him 'a percentage of total permanent disability,' citing I.C. § 72-310, based upon his life expectancy; and that the Board's award 'is not based upon the mandates of the law.'

Initially, at the time of the hearing, claimant conceded that the extent of his partial permanent disability was the main issue for determination by the Board.

Claimant now contends that the Board erred in failing to evaluate its rating of 76.5% of 'the whole man' into a like percentage rating of total permanent disability based upon I.C. § 72-310(a). Claimant asserts that if he had suffered total permanent disability for work, considering his life expectancy of approximately 43 years, he would have become entitled to compensation at $28 a week for the initial 400 week period, and at $12 a week during the remaining period of 1836 weeks as the balance of the period of his life expectancy, and thus he asserts his entitlement to 76.5% thereof, i. e., $25,422.48 payable during the period of his life expectancy.

Claimant does not specifically assert that the Board erred in failing to rate his permanent partial disability in terms of the specific indemnity schedule and in relation to periods stated in the schedule, I.C. § 72-313; rather, he asserts that the Board erred in failing to evaluate its determination of the rated partial permanent disability of 76.5% of 'the whole man' in terms of a like percentage of total disability, I.C. § 72-310(a), on a permanent basis, I.C. § 72-311.

Failure of this Court to consider the question whether the Board erred in its rating of partial permanent disability compared to loss of 'the whole man' would result, first, in lending approval to a rating of partial permanent disability not authorized by the workmen's compensation law, nor particularly by I.C. § 72-313, although non-scheduled partial permanent injuries are required to be rated under the comparative injury clause thereof, and its mandate requires ratings thereunder of all nonscheduled partial permanent injuries; and second, in this Court assuming that the Board's rating of partial permanent disability is correct, but that since the Board's evaluation thereof is incorrect, the evaluation should be corrected consonant with claimant's theory.

An award of specific indemnity, however, is grounded upon (1) a rating of partial permanent disability, and (2) the monetary value of the rating. Both stem from the covered injury and can not be separated. If one aspect falls by reason of being incorrect, then the other must fall.

What claimant asserts is, that the Board's rating of 76.5% loss of 'the whole man' is correct; but that its evaluation of that rating, in terms of a specific indemnity of 76.5% of 400 weeks--'the whole man'--is objectionable. He objects to any evaluation of specific indemnity under I.C. § 72-313, based upon any determination of loss or comparative loss of bodily members. He desires the total disability statute, I.C. § 72-310, to be applied on a permanent basis, with a percentage thereof to be taken, based upon claimant's life expectancy. Thus claimant is attacking the Board's evaluation of specific indemnity, asserting that it should be based upon a percentage of total permanent disability. Claimant's specifications of error and the issues which he thus brings before this Court require a review of the Board's award as to its correctness, both as to the rating of partial permanent disability, and the evaluation of the rating.

The evidence in the present cause is undisputed. Dispute arises as to application of the law to the undisputed facts.

'On appeal from an order of the industrial accident board the court shall be limited to a review of questions of law.' Idaho Const., Art. 5, § 9, 1935 amendment. The application of the law to the undisputed facts in a workman's compensation proceeding raises a question of law. Johnston v. A. C. White Lumber Co., 37 Idaho 617, 217 P. 979 (1923); Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227 (1924). 'In a compensation case, the evidence, if undisputed may be reviewed as a matter of law to determine its sufficiency to sustain the findings of the Industrial Accident Board. If the Board's findings are clearly unsupported as a matter of law, it is within the province of this Court to set them aside and the decision based thereon.' Laird v. State Highway Department, 80 Idaho 12, 323 P.2d 1079 (1958).

The right of an injured employee to receive compensation benefits is statutory, governed entirely by legislative enactment, i. e., the workmen's compensation law. I.C. § 72-102; Arnold v. Claude Lacey & Son, 73 Idaho 1, 245 P.2d 398 (1952); McCall v. Potlatch Forests, 69 Idaho 410, 208 P.2d 799 (1949); Close v. General Construction Co., 61 Idaho 689, 106 P.2d 1007 (1940).

This Court has considered the meaning and application of I.C. § 72-313, which evaluates the various bodily members where actual loss is occasioned, such as an arm, leg, eye, etc. In other cases of permanent injury not included in the schedule compensation shall bear such relation to the amount stated in the schedule as the disabilities bear to those produced by the injuries stated in the schedule. This latter provision of I.C. § 72-313, requiring nonscheduled permanent injuries to be evaluated by comparison to the listed permanent injuries, was effected in 1937 by an amendment, Idaho Sess.Laws 1937, ch. 241. Prior to that amendment, non-scheduled permanent injuries, unless they could be included in the listed classes of permanent injuries, could not be evaluated in terms of comparative loss of bodily members, and no compensation could be allowed therefor. See Barry v. Peterson Motor Co., 55 Idaho 702, 46 P.2d 77 (1935),--again indicative that recovery under the workmen's compensation law must be by virtue of legislative flat, and not otherwise.

In determining specific indemnities payable for permanent injuries listed and referred to in I.C. § 72-313, disability for work, loss of earning power, or capacity to work are not factors...