In re Koprowski

• Decision Date: 06 June 1935
• Docket Number: 1903
• Citation: 46 P.2d 61,48 Wyo. 334
• Parties: IN RE KOPROWSKI; KOPROWSKI v. MEGEATH COAL CO
• Court: Wyoming Supreme Court

46 P.2d 61

48 Wyo. 334

IN RE KOPROWSKI; KOPROWSKI v. MEGEATH COAL CO

No. 1903

Supreme Court of Wyoming

June 6, 1935

APPEAL from the District Court, Sweetwater County; V. J. TIDBALL Judge.

Proceeding under the Workmen's Compensation Law by Albert Koprowski claimant, against The Megeath Coal Company, employer. From an award for claimant, the employer appeals.

Affirmed.

For the employer and appellant, there was a brief by T. S Taliaferro, Jr. and A. L. Taliaferro, of Rock Springs, and oral argument by T. S. Taliaferro, Jr.

The evidence fails to show that the workman was ever injured in the employment of The Megeath Coal Company. The court erred in basing the award upon the sum fixed by statute for permanent total disability. The court erred in its award for temporary total disability from June 20, 1932, to October 1, 1933. In the case of In re McConnell, 18 P.2d 629, this court discussed the period of healing following the accident. The Sessions Laws of 1933, page 158, contain a provision that temporary total disability shall be limited to the time when the "healing process" has taken place. It would be useful if this court would specifically define the meaning of the phrase "healing period" and the statutory phrase of "healing process." Where an injured workman who has been examined, X-rayed, treated and discharged, thereafter places himself in the hands of numerous physicians who disagree as to his condition upon the facts that should be perfectly obvious, the case becomes involved in such a maze of confusion, that it is impossible to protect the Industrial Accident Fund. The statute, Section 124-120 (a), R. S. 1931, after setting out a schedule of permanent partial disability conditions, provides that for any other injury known to surgery to be permanent partial disability, the workman shall receive a sum in amount proportional to the extent of such permanent partial disability, based as near as may be on said schedule. This leads to further confusion, for the reason that in permanent total disability cases, children come into the equation, and if a workman is to receive 75 per cent of permanent total disability, why should not his children be entitled to 75 per cent of the schedule of awards, fixed by the statute in Section 124-120 (b), R. S. 1931. The only suggestion upon which an award of permanent partial disability can be based is a mere excerpt or obiter, emanating from the Denver surgeons, whose belief it is that the workman was permanently disabled to the extent of 25 per cent, all of which is accounted for by other physicians, who found diseased conditions, but no disability traceable to the alleged accident. The trial court erred in predicating its finding of disability upon a diseased condition rather than a condition caused by the accident.

For the claimant and respondent, there was a brief by Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Glen G. Stanton, of Rock Springs, and Wm. C. Snow, of Cheyenne.

This case seems to have been the subject of several successive hearings. The injured workman was examined and treated at Rock Springs, later at Salt Lake, and again at Fitzsimons Hospital near Denver. Numerous physicians and surgeons participated in these examinations and X-ray pictures were taken from time to time. There seems to have been a disagreement among physicians as to what was shown by the X-ray pictures. The first award of May 11, 1933, is a jurisdictional finding from which no appeal has been taken to the effect that the injured workman had been totally disabled from the time of the accident to June 20, 1932, and fixing compensation for temporary total disability up to that time. The contention in appellant's brief that the workman was never injured in the employment of the coal company is not subject to consideration on this appeal. Midwest Refining v. George, 41 Wyo. 55; Pedlow v. Swartz Electric Company, (Ind.) 120 N.E. 603. There was evidence that the workman was suffering from a mild compression fracture, and that with treatment there would be a large amount of recovery. The workman is entitled to compensation whether his injury was a compression fracture or was an aggravation of a prior arthritic condition. Frandila v. Dept., (Wash.) 243 P. 5; Babich v. Mining Company, (Minn.) 202 N.W. 704; Hendrickson v. Commission, (Calif.) 8 P.2d 833. As to the second specification of error, that the court erred in estimating the amount of partial permanent disability, the objection is based upon a portion of Section 124-120, R. S. 1931. Counsel for employer has not shown that the method of computation adopted in this case is wrong, but in any event, if it should not be strictly as provided by statute, the employer was in no way prejudiced and there is nothing to show that the amount of the award is any different if it were computed as the employer contends it should be.

T. S. Taliaferro, Jr. and A. L. Taliaferro in reply.

The position of counsel for respondent, that the workman was totally disabled from the time of the accident to June 20, 1932, and the authorities cited in support thereof are not germane to the question. Section 6, Chapter 129, Session Laws, 1933. The award of May 11, 1933, was not a judicial finding in the sense of a final judgment, since the court reserved the right to award further compensation for temporary total disability. The position of the employer is that there is not substantial evidence submitted to the court after May 11, 1933, which warrants any additional award either for temporary total disability or permanent partial disability. To determine this fact, the Supreme Court is required to consider all of the evidence in the record. The Pedlow case is not a decision of the Supreme Court of the State of Indiana, but is a decision of the appellate court, which seems to be the court to which an appeal is taken from the Industrial Board of Indiana. This case differs from Midwest Refining Company v. George cited by respondent, in that the court in this case retained jurisdiction. The appellant denies that there is any substantial evidence showing that respondent was injured while engaged in extra-hazardous employment in the employ of the appellant. The term "substantial evidence" does not seem to have been defined by this court. Yellowstone Sheep Company v. Diamond Company, 43 Wyo. 15; National Bank v. Richardson, 44 Wyo. 306; Delfelder v. Poston, 42 Wyo. 176. We contend that the term means evidence having the quality of substance. The overwhelming proof in this case was that the respondent suffered from a lame back long prior to the alleged accident. The mild compression fracture found in the pictures by Doctors Lauzer and Sanders was apparently so mild that none of the other twenty physicians called into the case were able to find a trace of it in the pictures. We submit that permanent partial disability must be based upon statutory schedules. We also request that the phrase "healing period" be given a definition by this court that may be followed in the future.

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

OPINION

RINER, Justice.

The district court of Sweetwater County, through an order form signed by the judge May 29, 1934, and filed June 1, 1934, made an award under the State Workmen's Compensation Law for temporary total disability and also for permanent partial disability, in favor of Albert Koprowski, in the matter of his claim for compensation for injuries alleged to have been sustained while an employee of The Megeath Coal Company while working in its coal mine in the county aforesaid. For the sake of brevity and convenience Koprowski will be hereinafter usually mentioned as the "claimant" and The Megeath Coal Company as the "employer." The latter, dissatisfied with the award, has brought the record made in the matter to this court by direct appeal, assigning as error: (1) That the evidence fails to show that the workman suffered any disability as a result of any accident or injury occurring while engaged in the duties of his employment; and (2) that the award on account of permanent partial disability is based upon a percentage of the sum allowed by law for permanent total disability, contrary to the provisions of Section 124-120, paragraph (a), W. R. S. 1931.

These are the material facts: On February 3, 1931, the claimant, a miner, was working in a room of the employer's coal mine getting out coal, and to use his own language given on the witness stand:

"I had been moving a big chunk of rock out of my way. It rolled over between the car, a big pile of rock, and one scraped my leg, and so I protect myself by having to move that rock on the side, and then about three o'clock in the afternoon, when I was lifting the rock, I feel a big pain in my back, sir, and I fall down to my knees, and then I feel pain in my back pretty bad, and I couldn't move around without much pain in my back, sir."

The next day he went to a physician and surgeon in Rock Springs, Wyoming, employed by the Labor Union, of which claimant was a member. He remained under his care until he was discharged on February 16, 1931. The next day claimant went to an osteopathic physician and surgeon and received treatment from him. In the following month of March he came under the care of Doctors Lauzer and Sanders, physicians and surgeons of Rock Springs, who examined him, took certain X-ray pictures of his back and prescribed medical and surgical care for him for the most part until the matter was finally disposed of by the award in question. In the interim he seems to have gone to the Fitzsimons General Hospital at Denver, Colorado, and remained there for treatment and care...