In re Iles

• Decision Date: 04 March 1941
• Docket Number: 2190
• Citation: 110 P.2d 826,56 Wyo. 443
• Parties: IN RE ILES; v. ILES BIG HORN COUNTY
• Court: Wyoming Supreme Court

110 P.2d 826

56 Wyo. 443

IN RE ILES;

BIG HORN COUNTY v. ILES

No. 2190

Supreme Court of Wyoming

March 4, 1941

ERROR to the District Court, Big Horn County; JAMES H. BURGESS Judge.

Proceedings under the Workmen's Compensation Law in the matter of the claim of Walter F. Iles, employee, opposed by the Big Horn County, Wyoming, employer. The employee within two years after a final award had been entered filed a petition for modification of the award theretofore made. To review a judgment in favor of employee, the employer brings error.

Affirmed.

For the plaintiff in error, the cause was submitted on the brief of Thomas M. Hyde of Basin.

Three general assignments are relied upon for a reversal of the judgment below, viz: Excessive damages given under the influence of passion and prejudice; insufficient evidence and error of the trial court in refusing to appoint a physician to examine claimant. There is no evidence in the record showing permanent total disability of claimant. His amended application does not show permanent total disability. The testimony of the claimant shows that he has been able to do some work. There was no evidence that claimant had suffered additional incapacity since the original award was made on June 30, 1938. The physicians who testified admitted that they relied upon what the claimant had told them about his condition. The original award found claimant had suffered permanent partial disability of about thirty per cent. The burden of proof was on the claimant to show an increase of incapacity since the first award of partial permanent disability. The award was res adjudicata. 15 R. C. L. 949. The trial court erred in refusing to appoint Dr. Parisi to examine the patient. Defendant had no medical report on the claimant for nine months. Such an examination was necessary in this case for the purpose of an orderly, systematic administration of justice. Wiggen v. State, 28 Wyo 488.

For the defendant in error, there was a brief by Milward L. Simpson of Cody, and an oral argument by Valentine R. Grundman of Cody.

Plaintiff in error failed to sustain its first and second assignments of error, that the verdict of the jury was the result of passion and unsupported by sufficient evidence. This court will not disturb the judgment of the trial court, even if found to be based on conflicting evidence. Kinney v Barnhisel, 53 Wyo. 58; Ketchum v. Davis, 3 Wyo. 164; 2 R. C. L. 193. The evidence in favor of defendant in error must be accepted as true, with such inferences as may be drawn therefrom. Collins v. Anderson, 37 Wyo. 275. It was shown conclusively by the evidence that the training of claimant was for manual labor, and that his injuries had rendered him incapable of performing manual labor. The case comes within the rule announced in the case of Kittleson v. Hibler, 37 Wyo. 332. Carter Oil Company v. Gibson, 34 Wyo. 53; Sakamoto v. Kemmerer Coal Company, 36 Wyo. 325; Section 124-120 (b) R. S. 1931. The Act is to be interpreted in the light of its purpose and its beneficient design. Young v. Duncan (Mass.) 106 N.E. 1; In re Petrie, 215 N.Y. 335, 109 N.E. 549. The request of plaintiff in error for the examination of claimant by a physician was made in the middle of the trial. It was refused for the reason that the court did not wish to delay the trial for such examination. It is true that Sec. 124-113, R. S. authorizes the appointment of a physician for such purpose, but it is within the discretion of the trial court. The court stated to counsel that it should have made the application before the trial.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Walter F. Iles, about 43 years of age, hereinafter called the workman, was injured on August 16, 1937, while in the employ of Big Horn County, this state, by being struck in the small of the back by a heavy road bulldozer of a caterpillar, weighing from 3000 to 3500 pounds, which dropped some 16 inches while the employee was in a stooped position. He had what Dr. Parisi describes as a comminuted fracture of the inferior ramus of the left pubic bone, a comminuted fracture being one in which more than one piece of the bone is broken. This ramus, as explained by Dr. Gorder, is a part of the pelvic bone in front of the body and extends downward from what is called the symphysis--the joint in front. The bladder lies immediately behind the ramus. The workman was unconscious for part of several days. He was taken to the hospital, and X-ray pictures were taken at different times, during a period of about a month. He was taken to a hospital where he remained about a month. He remained under the care of Dr. Parisi until October, 1937, and thereafter was under the care of Dr. Gorder. The latter recommended that he go to Billings and be examined by Dr. Allard of that place. That physician made a report to the court on April 15, 1938, stating among other things that the movements of the spine in all directions are fairly free and normal through the first half of the arc of motion, after which the employee resists these movements both actively and passively. He continued: "X-ray pictures of the sacro-lumber and pelvic areas demonstrate an overgrowth on the right pubic ramus which tends to reach over the symphysis of the pubic bones and which is accompanied by what appears to be a slight separation of that joint, with an elevation of the right pubic articular segment. There is an irregularity of the left ischium which may have been caused by a well healed fracture in that area. Diagnosis: Contusion and sprain in the sacro-iliac area, left, with a possible injury or separation of the symphysis pubis, the symphysis pubis being seemingly quite well healed at this time." Supplementing this report on May 27, 1938, he stated: "In cases of this kind there are two expectancies: one, that the subject will gradually improve even to a possible cessation of symptoms, in which case there is always a possibility of recurrence in some unguarded movement or action; the other, a continuance of the symptoms without sufficient abatement to permit return to hard work. In this instance I would expect gradual improvement, the limitation being undeterminable. Therefore, I feel that the average disability rating in these cases should pertain in this case; that is, a 30 per cent permanent partial disability."

On June 30, 1938, the court made its final award in the case, allowing the employee the sum of $ 1666.66, being for thirty three and one third per cent permanent partial disability. It does not appear that any testimony was introduced in the matter, and it seems that the award was made pursuant to the report of Dr. Allard, which, it may be noted, did not determine the amount of disability, but was conjectural as to what the future might show.

On March 16, 1940, within two years after the final award above mentioned was made, the workman filed a petition for modification of the order theretofore made, alleging that in truth and in fact he was, at the time the order was made, totally disabled, which condition will continue to exist, and further, that he has suffered an increase of incapacity, due solely to the injury received in August, 1937. The county filed an answer denying these allegations. A jury, composed of citizens of the county, was empaneled to try the issues. On March 16, 1940, a verdict was returned that the workman's incapacity has increased 66 2/3 per cent. A judgment was entered in accordance with the verdict finding the employee totally incapacitated, and making an allowance accordingly. From this judgment the county has appealed.

On June 23, 1939, many months prior to the trial of this case, Dr Allard had re-examined the workman, and after reciting various symptoms of which the latter complained, the doctor reported that X-ray pictures "do not present any disturbance in bone or joint alignment, with the exception of an overgrowth on the right pubic ramus. This bony outcropping reaches over the symphysis on the right pubic bones. The right side of the pubic articulation is somewhat higher than the left, and the joint seems to be separated more than normal. Conclusions: The symptoms from which Mr. Iles is suffering evidently followed an injury on August 16, 1937. At that time the pelvis was disturbed by the force which caused the injury and likely is responsible for the abnormalities found in the pubic region and strain in the left sacro-iliac joint. In spite of the fact that one would ordinarily expect a minor disability from an injury of this type, as interpreted from X-ray findings, the subject symptomatically, according to his history, is unable to do hard work of any kind. He is therefore symptomatically a 60% disability from the standpoint of hard work, and anatomically a 30% disability." The workman testified that since the award in 1938, the pain in his back has become worse, and that he could not now control the left leg at all times and at times he has no feeling at all in it; that the pain in his back starts in at the top of the left hip, drifts through and crosses into the right hip; that the pains at times are unbearable; that he has lately had considerable bladder trouble; that he cannot lie on his back for more than 30 minutes without pain; that his pains since the award in 1938 are worse and of longer duration; that he has not been able to procure employment since his accident; that he cannot do any hard work at all; and that he cannot get around without the help of a cane. The employee's wife testified to his pains; that he can do no work involving any strain whatever, and must constantly use a cane. Dr. Gorder testified that the workman can never, in his judgment, do any hard work again; that it is possible that his...