Lescinski v. Potlatch Forests, Inc.

• Decision Date: 28 June 1946
• Docket Number: 7269
• Citation: 170 P.2d 605,67 Idaho 98
• Parties: LESCINSKI v. POTLATCH FORESTS, Inc. et al
• Court: Idaho Supreme Court

170 P.2d 605

67 Idaho 98

LESCINSKI v. POTLATCH FORESTS, Inc. et al

No. 7269

Supreme Court of Idaho

June 28, 1946

Appeal from Industrial Accident Board.

Order of board affirmed.

Paul C Keeton, of Lewiston, and William D. Keeton, of St. Maries for appellant.

Notice of injury is given as soon as practicable where the employee does not know the severity of his injury and upon being apprised of it, or as soon thereafter as his physical condition will allow, gives notice of injury to his employer. Duffy v. Town of Brookline, 226 Mass. 131, 115 N.E 248; Bates and Roger Construction Company v. Allen, 183 Ky. 815, 210 S.W. 467; Woodbury v. Frank B. Arata Fruit Co., 64 Idaho 227, 130 P.2d 870; State ex rel Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008; Desrochers v. Atwood-Crawford Co., 47 R.I. 116, 131 A. 48; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270.

An employer is not prejudiced by not being able to supply medical attention or make timely investigation where an injured workman, not knowing the outcome of a trivial injury, does not give immediate notice, but does give notice as soon as he is apprised of the severity of his condition or as soon thereafter as his physical condition will permit. Wardwell's Case, 121 Me. 216, 116 A. 447; Buckner v. Quick Seal, Inc., 233 Mo.App. 273, 118 S.W.2d 100; In Caspar v. East Providence Artesian Well Co., 49 R.I. 8, 139 A. 470; Smith v. Solvay Process Co., 100 Kan. 40, 163 P. 645.

Prejudice, as used in I.C.A. § 43-1205 means that the employer, by failure to receive notice, has been less able to resist the claim. Vasey v. Industrial Commission, 167 Wis. 479, 167 N.W. 823; Industrial Commission of Colorado v. Globe Indemnity Company, 74 Colo. 52, 218 P. 910; United States Fidelity & Guaranty Company v. Industrial Accident Commission, 84 Cal.App. 226, 257 P. 895.

Robert H. Elder and R. N. Elder, both of Coeur d'Alene, for respondents.

That the claimant and appellant gave no notice of injury to the Potlatch Forests, Inc., under the provisions of I.C.A. § 43-1202.

That the Potlatch Forests, Inc., and no officer or agent of said Company had any knowledge of the alleged injury until approximately five months after the date thereof.

That the claimant and appellant did not present himself for treatment to the physician, surgeon or hospital agreed upon, or to any physician, surgeon or hospital within a reasonable time after the alleged injury. I.C.A. §§ 43-1202 to 43-1205, Bodah v. Coeur d'Alene Mill Co., 44 Idaho 680, 258 P. 1079; Wilson v. Standard Oil Company, 47 Idaho 208, 273 P. 758; Frost v. Idaho Gold Dredging Co., 54 Idaho 312, 31 P.2d 270; Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781; Long v. Brown et al., 64 Idaho 39, 128 P.2d 754.

Ailshie, Chief Justice. Givens and Holden, JJ., concur. Budge and Miller, JJ., concur in the judgment.

OPINION

Ailshie, Chief Justice.

During November and a part of December, 1943, Joe Lescinski (appellant herein), a married man with two dependent children, was working for respondent, Potlatch Forests, Inc., on the logging railroad near Elk River. When entering his employment, Appellant elected in writing to waive the provisions of the Workmen's Compensation Law, Code 1932, § 43-901 et seq., providing for medical attendance and hospital service; in lieu thereof, he elected to accept and receive the benefits of a hospital contract existing between his employer and the Western Hospital Association.

November 24th, as a part of his work, appellant was carrying shims through the brush. A shim is a chunk of wood "to put at the bottom of the [railroad] ties in the mud"; when laying railroad track, "it gets soft and you have to push it up to get over it." Cedar wood is generally used, because it splits easily. As appellant bent the brush, pushing the shims through, "the leaves of the cedar" hit him in the left eye. The eye started to hurt but he continued to work until December 18th, when he quit work and went to his home in Bovill. (In riding in the truck from his work to Elk River, he had taken a cold.) December 21st he drew his wages from the company's office, at which time the office manager asked him why he was quitting but appellant didn't give any reason; the manager tried to get him to go back to work but appellant would not do so. Asked about this later, Lescinski admitted that at that time he intended to come back to work; he thought his eye was "going to be O. K." He made no complaint to his employer of injury or disability on account of injury; nor did he call at the company hospital or on the company's physician, Dr. Gibson.

Appellant attempted to treat his eye at home; he put some packs on it to relieve it. In January his eye became worse and he consulted Dr. Wilson in Moscow and, at the doctor's advice, went to the Gritman Hospital there for treatment, where he remained five days, leaving there January 18th for his home. While at the hospital his eye was treated with hot and cold boric acid compacts and argyrol solution. Dr. Wilson informed him that the eye would "have to come out." When asked whether he knew he had a right to have treatment at Dr. Gibson's hospital (the company's physician and hospital), appellant answered: "I don't want to go to Dr. Gibson. He is too mean * * *. He keep talking to you like a dog." He referred to the time he had cut his hand, making fence posts, and consulted the doctor.

February 3, 1944, appellant was admitted to the Veterans Hospital at Boise, where, according to Dr. Kimelman, surgeon and physician,

"The patient [Lescinski] states that after being in the wind he came home with a slight pain in his left eye, a few hours later the pain became unbearable, the left side of the head also ached; he lost his sight overnight; he saw M. D. who treated him with compresses and 'shots' with no relief; he then came here for treatment."

On examination the doctor's "diagnostic impression" was "acute glaucoma". On the same date Dr. Cowles was called in as consultant and performed an enucleation of appellant's left eye. The doctor testified to the patient's giving him practically the same information regarding his eye as quoted above. The statement was denied by appellant, however. Dr. Cowles testified that there were no signs of injury to the external eye. Testimony of Dr. Thompson (called in by Dr. Wilson) also disclosed "no blemish" on the cornea of appellant's eye. According to Dr. Cowles, the loss of appellant's eye was "due to a complicated cataract" ; "It would take several years for a cataract to be mature like it was." When asked the question as to whether the cataract might be advanced from trauma which occurred on the 23d of November, Dr. Cowles stated: "traumatic cataract could get to a mature stage like that from an injury of that date, yes."

Drs. Arthur C. Jones and R. L. Nourse were called in to testify to hypothetical questions regarding the condition and treatment of appellant's eye. Dr. Jones, in speaking of appellant's injury had this to say:

"If the man had a severe injury on the 24th of November, it certainly should have given evidence before the 18th of December, and if it didn't give any evidence before that time, I wouldn't think that the brushing of the leaves into his eye would have precipitated his glaucoma. He wasn't seen by a doctor until the 12th of January. Early in the game I would think there would have been plenty of evidence if it was severe enough to cause glaucoma. * * * if he had been suffering with this eye for nearly a month that he would at least have spoken to somebody about it. * * * I mean that is just common sense, if a man is injured. * * * If he had an injury that caused a panophthalmitis ['inflammation of all the structures or tissues of the eye'] he would be incapacitated almost immediately."

In answer to the question, "In your experience, it [glaucoma] does come from injury some times?" Dr. Jones replied: "A. Yes, I have seen it come from injury." No further information was brought out by Dr. Nourse's testimony.

April 27, 1944, notice of injury and claim for compensation was filed by appellant. As to the "Nature and Extent of Injury", shown on the blank, it was stated that appellant "Lost left eye -- accident was not reported when Mr. Lescinski quit so we did not send him to any Dr."; that he was "permanently" disabled.

October 30, 1944, application and petition for hearing was filed with the Industrial Accident Board. Hearings were had before Commissioner Suppiger of the Board, March 15th, 1945, at Moscow, and May 1st, '45, at Boise; and findings of fact, rulings of law and order were entered by him June 8th, denying and dismissing appellant's claim and application for compensation. These findings, rulings and order were approved and confirmed by the Board on the same date. Claim for review of the findings was filed by the claimant's counsel and the Board's findings were reviewed July 5th following. August 14th the Board again made its findings of fact, rulings of law and order on review, and the claim and application of appellant was denied and dismissed. From the latter award or order of the Board, claimant appeals.

The evidence in the case, as to the direct cause of the injury and giving notice to the employer, is conflicting. The Board found in favor of claimant on the issue as to the cause of the injury, so there is no issue before the court on that question. The Board found, however, against the claimant on the issue of notice to the employer and the question of lack of notice being prejudicial to the interests of the employer. The findings by the Board on these various issues are as follows:

"V. That about April 9, 1944, claimant returned to Bovill. That...