Jones v. Boise Produce & Commission Co., Ltd.

• Decision Date: 04 February 1947
• Docket Number: 7293
• Citation: 67 Idaho 287,177 P.2d 157
• Court: Idaho Supreme Court
• Parties: JONES v. BOISE PRODUCE & COMMISSION CO., Limited, et al

177 P.2d 157

67 Idaho 287

JONES v. BOISE PRODUCE & COMMISSION CO., Limited, et al

No. 7293

Supreme Court of Idaho

February 4, 1947

Appeal from Industrial Accident Board.

Modified and as modified affirmed.

Walter M. Oros and Frank L. Benson, both of Boise, for appellant.

No contract, rule, regulation or devise whatsoever shall operate to relieve the employer in whole or in part from any liability granted by the Workmen's Compensation Law other than is specifically excepted by Section 43-1006 and Section 43-1008. I.C.A. § 43-1005; Hustead v. H. E. Brown Timber Co., 52 Idaho 590, 17 P.2d 927; Hanson v Independent School Dist. 11-J, Elmore and Owyhee Counties, 57 Idaho 297, 65 P.2d 733.

It is the duty of the Industrial Accident Board to make findings on all of the material issues. Smith v. Mercy Hospital, 60 Idaho 674, 95 P.2d 580; Clayton v. Hercules Mining Co., 63 Idaho 301, 119 P.2d 890.

E. B Smith, of Boise, for respondents.

An award of the Industrial Accident Board, in the absence of fraud, shall be final and conclusive between the parties subject to modification on change in condition (I.C.A. § 43-1407), unless either party appeals to the Supreme Court. I.C.A. § 43-1408; Rodius v. Coeur d'Alene Mill Co., 46 Idaho 692, 696, 271 P. 1; Reagan v. Baxter Foundry & Machine Works, 53 Idaho 722, 724, 27 P.2d 62; Barry v. Peterson Motor Co., 55 Idaho 702, 708, 46 P.2d 77; Zapantis v. Central Idaho Min. & Mill. Co., 61 Idaho 660, 667, 106 P.2d 113; Zapantis v. Central Idaho Min. & Mill. Co., 64 Idaho 498, 136 P.2d 154.

Givens, Justice. Budge, C. J., Holden and Miller, JJ., and Sutphen, District Judge, concur.

OPINION

Givens, Justice.

December 24, 1926, appellant, employed by the Boise Produce and Commission Company, Ltd., compensably fractured the tibia and internal malleolus of his right ankle.

The employer furnished medical and hospital care and paid compensation until May 1, 1927. The matter was not brought to the attention of the Industrial Accident Board until May 18, 1944, when his leg having caused him further trouble, appellant sought compensation and medical expenses additional to those previously paid prior to May 1, 1927. These were refused by respondents, whereupon appellant filed a petition for relief with the Board. Hearing was had on August 25, 1944, and the Board made the following award September 14, 1944:

"Wherefore it is ordered, and this does order, that the claimant Ralph C. Jones, be and hereby is awarded against the defendant Aetna Casualty and Surety Company, surety, the sum of $ 98.30 for compensation and for medical services and hospital attendance had.

"And it is hereby further ordered and this does order, that the defendant Aetna Casualty and Surety Company, surety within 30 days from the date hereof tender the claimant, at its expense, the services of a physician and surgeon to be mutually agreed upon between said defendant and claimant, and if they can not agree, then by one chosen by the Industrial Accident Board, for removal of the pin now in the bones of his ankle and the fragments of bones now therein; that if said surety fails or refuses, within the said period of time to make such tender, the claimant may at the cost and expense of the surety have such service by a physician and surgeon of his own choosing; further, that if, and after, such operation is had and the claimant is surgically healed therefrom, the amount of his permanent partial disability in his ankle remaining, if any, be then determined by the Industrial Accident Board; further, if said surety fails to make such tender or if claimant fails to have such surgery, the claimant's permanent partial disability by reason of said accident, be and hereby is fixed at 33 1/3% of the loss of the foot as of December 25, 1943, and in such event the claimant is hereby awarded additional compensation in the sum of $ 659.89 for his permanent partial disability, and the defendant surety is ordered to forthwith pay into the state treasury, to be deposited in the Industrial Special Indemnity Fund, the sum of $ 13.33.

"It is further ordered and this does order, that if said operation is had that during the period of disability resulting therefrom, the defendant surety shall pay compensation to claimant at the rate of $ 16.00 a week.

"And it is further ordered, that the Board retain jurisdiction of the matter until its further order therein."

October 12, 1944, and thus within the thirty-day limit in the above order, respondent tendered the required medical and surgical services as shown by the noted exhibit. ^[1] Such services were not accepted, but were refused by appellant.

Appellant and respondents, employer and surety, appealed and cross-appealed from the order, October 14, 1944.

Upon payment to appellant by respondent and receipt by appellant from respondent of:

"Claimant's total temporary disability,

per award

$ 13.30

"Claimant's partial disability, per

award

659.89

"Hospitalization, per award

30.00

"Medical, per award

55.00

"Additional medical as demanded

by attending physician

46.50

"Claimant's appeal fee

15.00

Total

$ 819.69"

the appeals were severally dismissed, pursuant to the following stipulation, April 12, 1945:

"It is hereby stipulated by and between the parties to the above entitled cause by and through their respective attorneys of record that in consideration of all matters and differences heretofore pending between the parties hereto having been fully settled, that the appeal now pending in said court and cause by the appellant and cross-respondent may be dismissed; likewise, that the cross-appeal pending in said cause taken by the respondent and cross-appellants may also be dismissed.

"It is further stipulated upon entry of order of dismissal herein that the cause may be remitted forthwith to the Industrial Accident Board, for any further proceedings consistent with the workmen's compensation law."

Evidently the pin or nail had been inserted in appellant's ankle December 21, 1943, by Dr. Burton; thus, prior to the first hearing.

April 13, 1945, appellant was operated on by Dr. Pittenger, a surgeon of his own choosing. Appellant thereafter consulted Dr. Koelsch, asserted to be respondent's physician, and at his own, i.e. appellant's instance on September 19, 1945, had Dr. Koelsch operate on him. The Board's order contemplated the removal of the pin, but Dr. Koelsch did not remove it, testifying it (the pin or nail) had become so firmly imbedded in and completely covered by bone that he 'didn't feel it (the pin or nail) was producing any of appellant's tenderness' and that he found bone formation in spite of the X-ray's indication of only fibrous union.

Thereupon, July 6, 1945, appellant demanded compensation and medical reimbursement from respondents and upon their refusal to comply therewith, filed a petition July 13, 1945, with the Board for ensuing medical expenses, compensation, and attorney's fees.

After a hearing on January 8, 1946, the Board reviewing the above detailed history of the litigation, determined:

"That claimant now has a permanent partial disability equivalent to and comparable with 20% of the loss of one foot by amputation at the ankle."

Respondents contend the first award was complete res judicata of all claims for compensation in connection with the accident or any present aftermath, and that the disability as found being reduced from 33 1/3% to 20%, appellant has in effect been overpaid in the amount of $ 259.89.

Appellant contends the first award is not res judicata, and that in spite of the fact he had dismissed his appeal, which questioned the order of the Board, and had accepted the full award of 33 1/3% loss of the foot at the ankle; did not avail himself of the medical and surgical services as ordered by the Board and tendered by Surety, but secured only surgical attention of his own choosing, argues that -- evidently under the reserve clause of its order and the stipulation -- the Board should have increased the specific indemnity award. Also, since he was in a cast for seven weeks following the operation by Dr. Pittenger on April 13, 1945, and was not able to work after the second operation on September 19, 1945, and until the date of the hearing, as efficiently as he had been able to work previously, the Board should have awarded him as for total disability for the above periods of time, together with his medical expenses connected with the two operations and hospital bills amounting to $ 140.45.

The Board evidently considered that the award of September 14, 1944, was not, as such, res judicata because the Board retained jurisdiction and that the stipulation of the parties considered and therefore concluded only "* * * all matters and differences heretofore pending * * *." (Emphasis ours.)

The stipulation would seem to indicate, first, that all matters in connection with appellant's disability and compensation therefor, including medical services up to the date of the stipulation on April 12, 1945, were thereby settled by the payment to appellant and his acceptance of $ 819.69 then paid by respondent.

Future conditions or proceedings alone were thus reserved, obviously including subsequent change of condition if such arises.

Appellant's application for the hearing which resulted in the order appealed from herein, after giving in some detail the history of the proceedings up to the date of the petition, July 13, 1945, recites thus:

"That on the 23rd day of April, 1945, claimant was operated on and said pin was removed from his right ankle; that as a result of said operation claimant has incurred medical and hospital expense and additional total disability.

"That at the time of the accident the claimant was a married man...