Kelley v. Prouty, 5970
| Decision Date | 07 March 1934 |
| Docket Number | 5970 |
| Citation | 54 Idaho 225,30 P.2d 769 |
| Parties | C. B. KELLEY, Employee, Respondent, v. CARL PROUTY, Employer, and STATE INSURANCE FUND, Surety, Appellants |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.
Proceeding under Workmen's Compensation Law. Appeal from judgment affirming order of Industrial Accident Board denying relief as prayed for in defendants' petition to reopen and review award. Reversed.
See also, 52 Idaho 743, 19 P.2d 1061.
Paris Martin, for Appellants.
No award of compensation can be made for an injury resulting in a loss of vision, which may be corrected or supplied by the use of glasses. (McNamara v. McHarg, Barton Co., 200 A.D. 188, 192 N.Y.S. 743; Ladd v. Foster Bros. Mfg. Co. 205 A.D. 794, 200 N.Y.S. 258.)
Where condition may be improved up to nearly normal with glasses no award can be made for permanent total loss of vision. ( McNamara v. McHarg, Barton Co., supra; Moray v Industrial Com., 58 Utah 404, 199 P. 1023.)
E. B. Smith, for Respondent.
The Industrial Accident Board had no jurisdiction to entertain this proceeding, in that respondent sustained the injury for which he was awarded compensation more than four years prior to the filing of the application herein (I. C. A., sec. 43-1407, as amended, 1931 Sess. Laws, p. 438; Mulvey v. City of Boston, 197 Mass. 178, 83 N.E. 402, 14 Ann. Cas. 349.)
Under the Workmen's Compensation Law of Idaho, where a workman is blind in one eye, and, as a result of an injury sustained by accident arising out of and in the course of his employment, he loses all or practically all the sight of his other eye, he is deemed to be totally and permanently disabled and is entitled to compensation for such total permanent disability. (McNeil v. Panhandle Lbr. Co., 34 Idaho 773, 203 P. 1068; McDonald v. State Treasurer, 52 Idaho 535, 16 P.2d 988; Kriegbaum v. Buffalo Wire Wks., 224 N.Y. 621, 121 N.E. 875.)
Morgan, J., disqualified.
On November 17, 1921, the Industrial Accident Board approved an agreement entered into by the State Insurance Fund, the insurance carrier, and the injured employee, C. B. Kelley, dated November 12, 1921, designated a "recommendation," in words and figures, as follows:
Pursuant to such agreement, so approved, payments were made to the injured employee, C. B. Kelley, until June, 1928, totalling $ 4,580. On September 24, 1931, the appellants filed a petition to reopen and review the award on the ground of a change in condition of respondent, from one of total disability to partial disability or no disability. On hearing before the board an order was entered denying relief as prayed for in the petition, which order was affirmed by judgment of the district court. This appeal is prosecuted from the judgment of the district court affirming the order of the board.
On February 19, 1921, respondent, while employed as a hod-carrier by appellant, Carl Prouty, received a head injury by striking his head against a beam during the construction of a building. This head injury so affected the vision of respondent's left eye that without glasses he had only 8/200 visual acuity, or 1/25th normal vision. From birth respondent had been afflicted with convergent squint of the right eye, so that he had a total loss of useful vision of the right eye.
The State Insurance Fund ceased making payments to respondent on June 26, 1928, and on or about July 15, 1928, it requested respondent to submit to an examination by Doctor Cowles, an eye specialist. On July 18, 1928, the doctor did make a partial examination, however, respondent would not submit to dilation of the pupils of the eyes so a thorough examination could be made and, as a consequence, Doctor Cowles was unable to make a positive report as to the percentage of vision respondent had with his left eye. Not until October 9, 1931, after the petition to reopen and review was filed, was another examination made. At that time, upon a very thorough examination by Doctor Cowles, representing appellants, and Doctor Merrill, representing respondent, both doctors being eye specialists, it was found that respondent, without glasses, had visual acuity in his left eye of from 10/200 to 20/200 or about 10 per cent normal vision; that with the aid or use of glasses the vision was between 20/30 and 20/20 or about 95 per cent normal vision.
The record further discloses that respondent, since May, 1931, has been steadily employed as a janitor in a large department store in Boise, Idaho, at a wage of $ 100 per month. Prior, commencing some time in February, 1925, until May, 1931, he was employed in various capacities as a laborer, similar to the work he was performing prior to his injury, receiving as wages from $ 3.50 to $ 4 per eight hour day. From the time of his injury until February, 1925, respondent did not perform any labor. Since he has commenced working, after his injury, he has been able to carry on his employment as well as before the injury, but has been required to wear glasses.
Respondent takes the position that the board did not have jurisdiction, in that the petition filed and relied on by appellants did not state sufficient facts showing any change in the condition of respondent, so as to authorize the board to review the agreement or award theretofore made, under sec. 6269, I. C. S., 1919, which was later amended and is now sec. 43-1407, I. C. A., citing Van Blaricom v. Export Lbr. Co., 52 Idaho 459, 16 P.2d 990. While we could not recommend the petition as a model to be followed, with reference to the allegations of fact on which jurisdiction is based, we believe that the allegations of fact are sufficiently set forth, as to a change of condition, to apprise the respondent of the claim that respondent's condition had changed from that of total disability to only partial or no disability at all, and is sufficient to give the board jurisdiction. In the case relied upon by respondent the court says that it is to be borne in mind that the Workmen's Compensation Law is to be liberally construed to further its object and purposes, and the proceedings thereunder are not to be governed by strict procedure. (In re Bones, 48 Idaho 85, 280 P. 223; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Ramsay v. Sullivan Min. Co., 51 Idaho 366, 6 P.2d 856.)
Next, respondent contends that the board did not have jurisdiction to entertain this proceeding in that the respondent sustained the injury, for which he was awarded compensation, more than four years prior to the filing of the application herein. At the time of the accident C. S., sec. 6269, which was then in force and effect, read 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, and on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, subject to the maximum and minimum provided in this chapter, and shall state its conclusions of fact and rulings of law, and immediately send to the parties a copy of the award, but this section shall not apply to a commutation of payments under section 6240."
In 1931, said section was amended and is now found as sec. 43-1407, I. C. A., limiting the time for the filing of an application to show a change of condition, by any party, to within four years of the date of the accident causing the injury. The question arises, was the provision limiting the time to file an application by reason of change in condition, within four years, retroactive? There is no express provision in the 1931 amendment, now sec. 43-1407, I. C. A., making the law retroactive. This court has repeatedly held that no statute should be construed to be retroactive unless such intention on the part of the legislature is clearly expressed. (Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81; Bellevue State Bank v. Lilya, 35 Idaho 270, 205 P. 893; Nampa & Meridian Irr. Dist. v. Barker, 38 Idaho 529, 223 P. 529; Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A. L. R. 200.)
Under the statute, before the amendment, the substantive...
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Kelley v. Prouty
... 30 P.2d 769 54 Idaho 225 KELLEY v. PROUTY et al. No. 5970. Supreme Court of Idaho. March 7, 1934 ... Appeal ... from District Court, Ada County; Charles F. Koelsch, Judge ... Proceeding ... under the Workmen's Compensation Law by C. B. Kelley, ... claimant for injuries, opposed by Carl Prouty, employer, and ... the State ... ...