Howard v. Washington Water Power Co.

• Decision Date: 21 December 1943
• Docket Number: 7145
• Citation: 65 Idaho 339,144 P.2d 210
• Court: Idaho Supreme Court
• Parties: WILLIAM R. HOWARD, Appellant, v. THE WASHINGTON WATER POWER COMPANY, Employer, and THE AETNA CASUALTY & SURETY COMPANY, Surety, Respondents

144 P.2d 210

65 Idaho 339

WILLIAM R. HOWARD, Appellant, v. THE WASHINGTON WATER POWER COMPANY, Employer, and THE AETNA CASUALTY & SURETY COMPANY, Surety, Respondents

No. 7145

Supreme Court of Idaho

December 21, 1943

1. Workmen's compensation

The burden is on a party claiming a change of condition to prove the change and that such change was due to a prior compensable accident. (I.C.A., sec. 43-1407.)

2. Workmen's compensation

Where claimant had been awarded total temporary disability compensation for electrical burns, to entitle claimant to additional compensation on ground of a subsequent change in condition, burden was upon claimant to prove by a preponderance of the evidence that the shock caused his alleged changed condition. (I.C.A., sec. 43-1407.)

3. Workmen's compensation

Where witnesses testify by deposition and do not appear before the Industrial Accident Board and testify and thus give the board an opportunity to hear and see them, Supreme Court must examine the evidence and determine its value.

4. Workmen's compensation

Where claimant had been awarded total temporary disability compensation for electrical burns, evidence did not entitle claimant to additional compensation on ground that his subsequent changed condition was the result of the electrical shock. (I.C.A., sec. 43-1407.)

Appeal from the Industrial Accident Board.

Application by claimant for additional compensation on the ground of a change in his condition after injury by accident. Application denied by order of the Industrial Accident Board, from which order claimant appeals. Affirmed.

Board affirmed, with costs to respondents.

Therrett Towles and Frank Griffin for appellant.

Agreement made by surety for employer to pay appellant compensation for his injuries, approved by board, had the same effect as an award. (I.C.A., secs. 43-1806; 43-1402; 43-1407; Rodius v Coeur d'Alene Mill Co., 46 Ida. 692, 271 P. 1.)

Traumatic neurosis and paroxysmal tachycardia occurring after agreement and award of board amounted to such "change in condition" as to warrant modification of compensation agreement. (I.C.A., sec. 43-1407; Jenkins v. Boise Payette Lumber Co., 49 Ida. 24, 287 P. 202; Skelly v Sunshine Mining Co., 62 Ida. 192, 109 P.2d 622.)

Right to compensation is not affected by fact that earnings of injured employee are as much as, or more than, before injury. (Note in 17 A.L.R., p. 205; Woodcock v. Dodge Bros. (Mich.) 181 N.W. 976; Foley v. Detroit United R. Co. (Mich.) 157 N.W. 45.)

Harry M. Morey and W. B. McFarland for respondents.

The claimant did not bear the burden of proving that there was a change in condition since the date of the so-called "award" or since the date of the final settlement receipt. (Fackenthall v. Eggers Pole Co., 62 Ida. 46; 108 P.2d 300; Boshers v. Payne, 58 Ida. 109, 70 P.2d 391; Mell v. Larson, 54 Ida. 754, 36 P.2d 250.)

To justify a modification of an award on the ground of change in condition the evidence must be clear and convincing that there was in fact an actual and substantial change in condition. (Peet v. City Bakery Co., (Mich.) 213 N.W. 692.)

HOLDEN, C.J. Budge, Givens and Dunlap, JJ., concur.

OPINION

HOLDEN, C.J.

September 18, 1939, claimant, William R. Howard, was employed by the Washington Water Power Company as a common laborer near Cottonwood, Idaho, on a line crew rebuilding a transmission line carrying an alternating current of 22,000 kw. On that day the crew was setting a pole with the aid of a truck, equipped with a twenty-five foot boom and stiff legs, which at the time were resting on the ground. When the pole was being lowered into a hole six or seven feet deep a ground wire attached to it came in contact with the current which was transmitted to the ground through the truck. Claimant was releasing a pair of blocks at the bottom of the pole with his right hand in contact with the steel boom of the truck when part of the current passed through his body, grounding through his feet. He was rendered unconscious and immediately resuscitated by artificial respiration administered by the foreman. As a result of the accident claimant suffered second and third degree burns on his right and left feet and on the palm of his right hand and second degree burns below the right elbow.

Following the accident claimant was taken to a hospital in Cottonwood, Idaho, where he was under the treatment of a physician until September 21, 1939, when he was transferred to a hospital in Spokane, Washington, under the care of another doctor, employer's physician. He was hospitalized for approximately five weeks, remained at home for about two weeks and returned to work November 8, 1939. He was totally, temporarily disabled from the time of the accident until he resumed work November 8, 1939. Shortly after returning to work, to-wit, November 16, 1939, a summary and award was approved by the board. After his return to work, November 8, 1939, claimant continued to work for the Washington Water Power Company until January 28, 1941, at which time his wages had been raised from $ 20.00 per week to $ 120.00 per month. Claimant then worked for Max J. Kuney at a higher grade of work, namely as a ground man at $ 1.12 1/2 an hour. He continued to work for Kuney for approximately a year. When he quit he was foreman receiving $ 1.50 an hour. Claimant went to work March 23, 1942 for the "Army Engineers" at $ 2,300.00 per year, with overtime in addition. His work with the Army Engineers terminated about May 10, 1943. At the time of the hearing claimant was employed by Du Pont as an inspector at $ 65.00 per week. February 17, 1943, claimant filed a petition for additional compensation for alleged partial disability for work from the date of the accident to the date of the filing of the petition, due to alleged wrecked nervous system. March 6, 1943, claimant filed an amended petition. In his amended petition claimant alleges his "entire nervous system was so wrecked and shattered from said accident that after the date of the above mentioned award and after claimant resumed work his physical condition changed and as a result of said accident claimant suffers and has suffered from dizziness and fainting spells and from tremors and quivering of the right hand and foot which disturbs his sleep and causes insomnia. That claimant's heart has become affected and weakened from said accident and he is unable to withstand any excitement or exertion whatever, nor is he able to perform any strenuous or heavy work, and that as time goes on said conditions are becoming more frequent and more pronounced and claimant's ability to work is being directly and materially affected."

June 21, 1943, a hearing was had. August 11, 1943, findings of fact and rulings of law were made and filed. On the same day the following order was made and entered thereon:

"WHEREFORE, IT IS HEREBY ORDERED, that the claimant take nothing by this proceeding."

The appeal to this court is from the order.

Claimant relies for recovery of additional compensation on a change in his condition (Sec. 43-1407, I.C.A.) following the accident. He pleads in substance that his "heart has become affected and weakened from said accident and he is unable to withstand any excitement or exertion whatever"; that "as a result of said accident claimant suffers and has suffered from dizziness and fainting spells," and that his entire nervous system was so wrecked and shattered as to change his physical condition.

The burden is on the party claiming "a change of condition" to prove the change, and that such change was due to and resulted from the prior compensable accident. (Sec. 43-1407, I.C.A.; Boshers v. Payne, 58 Ida. 109, 114, 70 P.2d 391; Fackenthall v. Eggers Pole & Supply Co., 62 Ida. 46, 51, 108 P.2d 300.)

Hence, the pivotal question presented for determination is: Did claimant prove a change in his condition by a preponderance of the evidence?

Claimant testified in substance: that after going back to work following the accident, he had three fainting spells; that his fainting spells lasted about five minutes; that one of these he had while wrestling with a fellow employee; that he suffered tremors and quivering of the right hand and foot, which disturbed his sleep and caused insomnia; that his heart had become affected and weakened; that he was unable to stand any excitement or exertion; that he was not able to stand heavy work; that "Q. Now, Mr. Howard, when you went down there to work, when you returned to work for the Washington Water Power Company, what was your physical condition? A. Well, as I noticed, it was all right. Q. Didn't you notice any nervousness, or any tremors when you went back to work for the Washington Water Power Company? A. I might have been, but I wasn't thinking of that at the time. Q. I am not asking you what you were thinking. I am asking what you noticed--if you didn't have some tremors and heart condition when you went back to work for the Washington Water Power Company? A. No. Q. Sir? A. Not noticeably. Q. But to some extent? A. I would say yes."

F. R Howard, claimant's father, testified: that prior to the accident appellant was a strong, healthy boy, in excellent...