Kiger v. Idaho Corp.

• Decision Date: 26 March 1963
• Docket Number: No. 9180,9180
• Citation: 380 P.2d 208,85 Idaho 424
• Parties: Aleene KIGER, Claimant-Appellant, v. The IDAHO CORPORATION, Employer, and the Employers Fire Insurance Company, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 208

380 P.2d 208

85 Idaho 424

Aleene KIGER, Claimant-Appellant, v. The IDAHO CORPORATION, Employer, and the Employers Fire Insurance Company, Surety, Defendants-Respondents.

No. 9180.

Supreme Court of Idaho.

March 26, 1963.

Spencer W. Nelson, Coeur d'Alene, for appellant.

Elam, Burke & Jeppesen, Boise, for respondents.

McQUADE, Justice.

On Friday, September 16, 1960, the claimant, Aleene Kiger, received a personal injury which was caused by an accident arising out of and in the course of her employment with the defendant, The Idaho Corporation. Claimant, while carrying flats of eggs, stepped off a platform, slipped on a broken egg and fell onto the concrete floor. On September 24, 1960, claimant consulted James W. Hawkins, a physician, for treatment of her injuries. Pursuant to an examination of the claimant, Dr. Hawkins testified he found evidence of contusions and black and blue spots on claimant's right hip and right arm. Dr. Hawkins determined claimant had severely strained her right lower back and right sacroiliac. X-rays revealed no evidence of fracture. The doctor's treatment of the injuries consisted of ultra sound, diathermy, ACTH injections, salicylates and injections locally at the spastic areas involved.

Claimant revisited Dr. Hawkins for treatment of those injuries on September 27, 28 and 29, and again on October 8, 1960.

Claimant, after the industrial accident, continued to work for her employer for three weeks, with occasional absences from work due to the accidental injuries.

On October 10, 1960, while on her way to visit Dr. Hawkins for treatment, claimant was involved in an automobile accident. Due to the traffic accident, claimant suffered severe neck and shoulder injuries. As of December 19, 1960, she was still complaining of that condition and continued to receive treatment to the area injured in the industrial accident.

On October 2, 1961, claimant filed a petition for a hearing before the Industrial Accident Board seeking compensation and medical expenses resulting from injuries received from both accidents. A hearing was held at Coeur d'Alene, Idaho, on October 12, 1961. Dr. Hawkins testified that claimant was disabled from the low back injury; that she had a very unstable sacroiliac joint which was being stabilized with braces; that she sustained a further injury to her neck and shoulder; that at the time of the hearing Dr. Hawkins had the claimant under treatment for the low back injury. At the hearing, Dr. Hawkins testified that in his opinion claimant was permanently disabled to an extent equal to between 15 and 18% of the loss of a leg at the hip plus the same percentage of the loss of an arm at the shoulder. Dr. Hawkins further testified that charges for treatment of the claimant subsequent to the second injury were for treatment of both injuries and that he could not separate the charges.

Claimant testified that on the day of the automobile accident she was on her way to see Dr. Hawkins for treatment of injuries suffered in the industrial accident; that she did not work for the defendant on the day of the accident; and that as a result of the automobile accident her condition became worse.

Pursuant to stipulation of counsel for the parties to this action, a deposition of Dr. Alexander Barclay was taken for use by the Board in its determination of this claim. Dr. Barclay stated that his examination of claimant disclosed no apparent disability; that the pain claimant complained of was caused, in his opinion, by the second accident; that claimant had indicated to him during the examination that she was 'virtually healed' from the first accident at the time she had the second accident; that injuries of the type complained of by claimant are not permanently disabling; and that he felt that Dr. Hawkins' estimate of the permanent disability was 'high.'

The Industrial Accident Board found that the first accident was compensable under the Workmen's Compensation Law but that the second accident did not arise out of and in the course of claimant's employment with the defendant employer and therefore was not compensable notwithstanding the fact that claimant was enroute to see her doctor for treatment of injuries suffered in the industrial accident. The Board concluded that the second accident was more severe than the first accident and was the cause of the upper back disabilities and increased claimant's low back disability. The Board determined that claimant's partial permanent disability relating to the low back injuries resulted from both accidents; was equivalent to 16 2/3% of the loss of a leg at the hip; and that claimant was entitled only to that portion of the above disability attributable to the first accident. The Board computed the partial permanent disability resulting from the first accident to be the equivalent of 8 1/3% of the loss of a leg at the hip and awarded claimant compensation of $30.00 per week for 15 weeks, an aggregate of $450.00. The Board disallowed claimant's request for medical and kindred expenses subsequent to October 10, 1960, on the grounds that such expenses were necessitated by the automobile accident and not the industrial accident.

Claimant appeals from the order of the Industrial Accident Board contending, in essence, that the Board erred in determining claimant was not entitled to compensation for injuries suffered in the automobile accident on October 10, 1960, and erred in refusing to make an award for expenses and disability resulting from the automobile accident.

A claimant in a workmen's compensation proceeding has the burden of proving the compensable disablement. Flasche v. Bunker Hill Company, 83 Idaho 420, 363 P.2d 1024; Darvell v. Wardner Industrial Union, 78 Idaho 309, 302 P.2d 950; Dunn v. Morrison-Knudsen Co., 74 Idaho 210, 260 P.2d 398. Accordingly, a claimant must not only prove she was injured, but she must also prove that the injury was caused by an accident arising out of and in the course of her employment. I.C. § 72-201; Davis v. Sunshine Mining Co., 73 Idaho 94, 245 P.2d 822; In Re Croxen, 69 Idaho 391, 207 P.2d 537.

To carry out the provisions of the Workmen's Compensation Act the Industrial Accident Board has the responsibility and authority to examine any competent witness and to subpoena and examine other competent witnesses; Nistad v. Winton Lumber Co., 59 Idaho 533, 85 P.2d 236. In further amplifying this proposition, Justice Smith in the dissenting opinion in Devlin v. Ennis, 77 Idaho 342, 292 P.2d 469, quoted this rule with a comprehensive citation of Idaho authorities.

In determining whether or not an injury was caused by an accident arising out of and in the course of employment, the following rule is stated in Eriksen v. Nez Perce County, 72 Idaho 1, 235 P.2d 736:

"It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises 'out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment."

A review of the record indicates that the only connection established by claimant between her employment and the injuries received from the accident of October 10, 1960, is found in statements that she was on her way to see Dr. Hawkins for treatment of injuries suffered in the industrial accident when she was injured in the automobile accident. The facts of Farmers' Gin Co. v. Cooper, 147 Okl. 29, 294 P. 108 are very similar to this case. Therein, an employee suffered an injury in the course of his employment. Several days later, while traveling in his own automobile to have his injuries treated he suffered additional injuries in an automobile accident. The employee filed a claim under the Workmen's Compensation Law to recover compensation for injuries received in the accident. That court denied recovery, holding that the highway collision was an intervening cause breaking the causal connection between the injury and the employment. That court further stated:

'The decisive fact is that the latter accident was in no sense due to the employment, nor did it result from a risk reasonably incident to the employment and there is a severance rather than a causal connection between the conditions under which the work was required to be performed and the resulting injury.'

In Linder v. City of Payette, 64 Idaho 656, 135 P.2d 440, this court said:

'A recognized concomitant is that if there occurs, after the initial accident and injury, an intervening, independent, responsible, and culminating cause, the latter occurrence becomes the proximate cause.'

We conclude that the Industrial Accident Board was correct in ruling as a matter of law that the accident of October 10, 1960, did not arise out of and in the course of claimant's employment.

The finding of the Board that the accident of September 16, 1960, caused a partial permanent disability is supported by substantial evidence and will not be disturbed.

Dr. Barclay's testimony shows that he conducted an examination of claimant on behalf of the defendant, Surety, 'to determine the extent of the injury to her back.'

In that regard his testimony on direct examination is as follows:

'Q. I take it from your answers on cross examination, Doctor, you didn't make any effort in your...