Jenkins v. Boise Payette Lumber Co.

• Decision Date: 06 March 1930
• Docket Number: 5495
• Citation: 49 Idaho 24,287 P. 202
• Court: Idaho Supreme Court
• Parties: DELL JENKINS, Appellant and Cross-Respondent, v. BOISE PAYETTE LUMBER COMPANY, Employer, and WORKMEN'S COMPENSATION EXCHANGE, Surety, Respondents and Cross-Appellants

287 P. 202

49 Idaho 24

DELL JENKINS, Appellant and Cross-Respondent, v. BOISE PAYETTE LUMBER COMPANY, Employer, and WORKMEN'S COMPENSATION EXCHANGE, Surety, Respondents and Cross-Appellants

No. 5495

Supreme Court of Idaho

March 6, 1930

WORKMEN'S COMPENSATION ACT-REOPENING OF AWARD-APPLICATION, TIME FOR MAKING-CHANGE OF CONDITION-ADDITIONAL COMPENSATION-FINDING OF INDUSTRIAL ACCIDENT BOARD-EVIDENCE-SUFFICIENCY.

1. In workmen's compensation case, where claimant sought to recover for changed mental condition and board found there was no change of condition, judgment of district court, on contrary finding, fixing limited compensation and closing case, was unauthorized in view of Laws of 1921, chap. 217.

2. In workmen's compensation case, where final payment of award was received about August 8th and claimant on October 19th filed petition under C. S., sec. 6269, to reopen award on ground that he was then suffering from a traumatic psychosis commission had not lost jurisdiction, and right to apply for re-adjustment had not then expired.

3. Although findings of Workmen's Compensation Board are conclusive upon courts if supported by competent evidence question of law arises for judicial determination when findings are not supported by evidence.

4. In workmen's compensation case, evidence held to show that claimant was suffering from traumatic psychosis developing after award for loss of a leg, testimony to that effect being uncontradicted.

ON PETITION FOR REHEARING.

5. In workmen's compensation case, where claimant, after final payment of award, had petitioned to reopen case because of changed mental condition due to progressing traumatic psychosis after injury to leg, and district court, on appeal from Industrial Accident Board's finding that no changed condition existed, came to opposite conclusion, it was unnecessary to remand cause to board for further proceedings where full hearing had already been had before board, not only on claimant's right to reopen case, but also on his right to further compensation if changed condition did exist and judgment was accordingly directed for compensation for proper period with interest thereon in conformity with C. S., sec. 6272A, as added by Laws 1921, chap. 217, sec. 15.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon Clinton H. Hartson, Judge.

Proceeding under the Workmen's Compensation Act to recover compensation because of changed condition. Opposed by employer and surety. Judgment for defendants. Reversed and remanded.

Reversed and remanded. Costs awarded to appellant.

W. H. Davison and E. B. Smith, for Appellant and Cross-respondent.

The "change in conditions" contemplated by C. S., sec. 6269, is not limited to physical changes, but embraces any change, including changes in mental condition. (C. S., secs. 6269, 6324; Amerada Petroleum Corp. v. Williams, 134 Okla. 177, 272 P. 828.)

The Industrial Accident Board has jurisdiction to hear and determine an application for additional compensation on the ground of a change in conditions filed at a time after the original award has been paid; the only limitations being that such application must be filed not oftener than once in six months, and it must be filed prior to the expiration of the maximum period during which compensation may be paid under the Workmen's Compensation Law, such maximum period being 400 weeks in the case at bar. (C. S., sec. 6269; Johnson v. Iverson, 175 Minn. 319, 221 N.W. 65, 222 N.W. 508; State ex rel. Tinglestad v. Nye, 136 Minn. 50, 161 N.W. 224; Old Dominion Land Co. v. Messick, 149 Va. 330, 141 S.E. 132; Lakso v. Munro Iron Min. Co., 243 Mich. 261, 220 N.W. 728; Colorado Fuel & Iron Co. v. Industrial Com., 85 Colo. 237, 275 P. 910; Industrial Com. v. State Ins. Compensation Fund, 71 Colo. 106, 203 P. 215; Independence Indemnity Co. v. White, (Tex. Civ. App.) 10 S.W.2d 263; Louisville Milling Co. v. Turner, 209 Ky. 515, 273 S.W. 83; Johnson v. J. P. Taylor Co., 211 Ky. 821, 278 S.W. 169; United States Casualty Co. v. Smith, 162 Ga. 130, 133 S.E. 351 (affirming judgment, 129 S.E. 880).)

Psychosis or neurosis has been held to be compensable by the courts of both England and the United States where it is shown to be due to an injury which arose out of and in the course of employment. In some instances, although the provisions of statutes identical and similar to C. S., sec. 6324, have been urged to the effect that the ailment is not an injury but a disease and that personal injury by accident arising out of and in the course of employment "shall not include a disease except as it shall result from the injury," the courts have uniformly held such statutes to be inapplicable and that they do not defeat the right to compensation. (Rialto Lead & Zinc Co. v. State Industrial Com., 112 Okla. 101, 44 A. L. R. 494, 240 P. 96; In re Hunnewell, 220 Mass. 351, 107 N.E. 934; Kingan & Co. v. Ossam, 75 Ind.App. 548, 121 N.E. 289; Ashland Limestone Co. v. Wright, 219 Ky. 691, 294 S.W. 159; Bramble v. Shields, 146 Md. 494, 127 A. 44; Employee's Credit Co. v. Industrial Accident Com., 177 Cal. 46, 169 P. 1001; Sessler v. Peter, 89 N.J.L. 722, 98 A. 834.)

There was no conflict in the evidence adduced before the Industrial Accident Board as to appellant's increased disability growing out of the mental ailment which resulted from his injury; therefore, the question as to whether he is entitled to compensation and the amount thereof is one of law. (Johnston v. A. C. White Lumber Co., 37 Idaho 617, 217 P. 979; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227.)

Fraser & Carter and Ralph S. Nelson, for Respondents and Cross-appellants.

On an appeal in a compensation case the findings of fact made by the Industrial Accident Board, based on substantial and competent evidence, are conclusive on the district and supreme court, and the district and the supreme court are not authorized to weigh the evidence on which the findings of fact are based. (Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Reader v. Milwaukee Lumber Co., 47 Idaho 380, 275 P. 1114; Butler v. Anaconda Copper Co., 46 Idaho 326, 268 P. 6; Singlaub v. Industrial Com., 87 Cal.App. 324, 262 P. 411; Coombs v. Industrial Acc. Com., 76 Cal.App. 565, 245 P. 445; United States Casualty Co. v. Matthews, 35 Ga.App. 526, 133 S.E. 875.)

The petition to reopen Jenkins' case before the Industrial Accident Board was filed too late to give either the Industrial Accident Board or the district court jurisdiction to authorize the Jenkins' case to be reopened. (C. S., sec. 6270; Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171; Parker v. Industrial Com. of Utah, 66 Utah 256, 241 P. 362; United States Casualty Co. v. Smith, 162 Ga. 130, 133 S.E. 851; In re Hunnewell, 220 Mass. 351, 107 N.E. 934; Huddleston v. Commonwealth Mining Corp., 139 Okla. 79, 281 P. 269; Louisville Milling Co. v. Turner, 209 Ky. 515, 273 S.W. 83.)

GIVENS, C. J. Budge, Lee, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, C. J.

On March 28, 1927, the Industrial Accident Board awarded to claimant compensation for permanent partial physical disability, equivalent to the loss of one leg at the knee, to cover a period of seventy-five weeks. The final payment of the award for this permanent partial physical disability was received by appellant about August 8, 1928. Thereafter on October 19, 1928, appellant filed his petition, under C. S., sec. 6269, to reopen the award on the ground that he was then suffering from a traumatic psychosis caused by the injury received while in the employ of respondents, Boise Payette Lumber Company. The Industrial Accident Board found that there was no changed condition. The district court of appeal found that there was a changed condition, but concluded that if the case were definitely closed the appellant would recover, and upon that ground granted compensation for $ 666.67, covering a period of forty-one weeks and four days from August 13, 1928, to May 31, 1929, and ordered that upon the conclusion of such payments the case be permanently closed. In view of chap. 217, Sess. Laws 1921, controlling herein, we do not see why this amount was thus fixed. Both appellant and respondent have appealed from this award made by the district court and no argument has been presented sustaining it.

The claimant-appellant contends that the board erred in not finding that there was a changed mental condition and allowing additional compensation on that theory, and that the district court erred in refusing adequate compensation after having found that there was a changed mental condition.

The respondents and cross-appellants urge that since the petition to reopen was filed after the final payment had been made under the first award the commission had lost jurisdiction to further consider the matter, and second, that the findings of the commission upon the facts are conclusive upon this court. The portion of the statute, C. S., sec. 6269, pertinent as to the time within which the petition was filed, is as follows: "On the application of any party on the ground of a change in conditions, the board may at any time, but not oftener than once in six months, review any agreement or award," etc.

Respondents and cross-appellants contend that this statute means any time during which payments under the first award are still being made but that if such payments have ceased the matter is absolutely closed. The only case cited in support of this position is Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171. The reasoning in this case does not appeal to us nor do we believe it has been followed, but that, on the contrary, it has been criticised and expressly not followed. In the first place...