Long v. Brown

• Decision Date: 07 July 1942
• Docket Number: 7027
• Parties: HARRY LONG, Appellant, v. A. B. BROWN and IDAHO COMPENSATION COMPANY, Respondents
• Court: Idaho Supreme Court

128 P.2d 754

64 Idaho 39

HARRY LONG, Appellant, v. A. B. BROWN and IDAHO COMPENSATION COMPANY, Respondents

No. 7027

Supreme Court of Idaho

July 7, 1942

Rehearing Denied-September 14, 1942.

WORKMEN'S COMPENSATION LAW-NOTICE OF INJURY.

1. The failure of employer to receive notice or have knowledge of accident will not deprive employee of compensation if employer is not prejudiced by delay or want of notice. (I.C.A., secs. 43-1202 to 43-1205.)

2. A party to a proceeding is bound by his testimony.

3. Workmen's Compensation Acts are remedial in character and should be construed broadly and liberally in order to effectuate their purpose. (I.C.A., sec. 43-901 et seq.)

4. The provision of Workmen's Compensation Act requiring notice of accident to be given to employer by and on behalf of injured employee should be broadly and liberally construed to effectuate the main purpose of all of such act. (I.C.A secs. 43-1202 to 43-1205.)

5. The requirement of Workmen's Compensation Act that notice of an accident be given to employer by or on behalf of injured employee is to give employer or someone on his behalf timely opportunity to make an investigation of the accident and surrounding circumstances to avoid payment of an unjust claim. (I.C.A., secs. 43-1202 to 43-1205.)

6. The word "prejudice", in provision of Workmen's Compensation Act that delay in giving notice of accident to employer will not bar compensation proceeding in absence of prejudice to employer, means that employer by failure to receive notice has been made less able to resist the claim. (I.C.A., sec. 43-1205.)

7. Evidence warranted award of compensation as matter of law on ground that failure to give timely notice of injury did not "prejudice" employer in that employer was not made less able to resist the claim by failure to receive notice inasmuch as employer would have made no investigation if such notice would have been given but would have merely reported accident to insurer, who had timely notice of acident and ample opportunity to make a full and complete investigation. (I.C.A., secs. 43-1202 to 43-1205.)

Rehearing Denied--September 14, 1942.

APPEAL from the Industrial Accident Board.

Order denying compensation, Reversed, cause remanded with instructions.

Order reversed, and cause remanded with instructions. Costs awarded to appellant.

Durham and Hyatt for appellant.

Although employee has burden of showing lack of prejudice, yet such burden may be sustained by warrantable inferences from the circumstances of the case without evidence specifically directed to disproving the particular forms of prejudice. ( Coakley's Case, (Mass.) 194 N.E. 122; Anderson's Case, (Mass.) 192 N.E. 520; Kangas' Case, (Mass.) 184 N.E. 380.)

There is an affirmative showing of lack of prejudice where an injured employee called on the contract physician and told him of the accident and asked for medical assistance even though the same be refused. (Arneson v. Robinson, 59 Idaho 223.)

There is no prejudice where the employee receives proper medical treatment following the accident. (Frost v. Idaho Gold Dredging Co., 54 Idaho 312; Oklahoma General Power Co. v. State Industrial Commission, (Okla.) 235 P. 1095.)

Statutory notice is not required if the employer or an agent or representative of his has knowledge of the accident or injury within the time that giving of statutory notice is required. (Stoddard v. Mason's Blue Link Stores, 55 Idaho 609; Cooper v. Independent Transfer & Storage Co., 52 Idaho 747; Crowley v. Idaho Industrial Training School, 53 Idaho 606.)

Ralph S. Nelson for respondent.

Notice to the surety is not notice to the employer. (Smith v. McHahn Hardware Co., 56 Idaho 43; 48 P.2d 1102; Secs. 43-1202, 1203, 1204, 1205, 1606, 1801 and 1601; Secs. 40-306 and 602, I.C.A.)

Notice to Dr. Hopkins was not notice to the employer. (Secs. 43-1605, 43-1107, 1108, 43-1901, 1903, 43-1801, 43-1204; Arneson v. Robinson, et al., 59 Idaho 223; 82 P.2d 249.)

BUDGE, J. Givens, C. J., Morgan, Holden, and Ailshie, JJ., concur.

OPINION

BUDGE, J.

Respondent Brown, on March 12, 1941, and prior and subsequent thereto, was engaged in the business of manufacturing cedar poles. On the date of the accident and injury, hereinafter referred to, the Idaho Compensation Company was respondent Brown's surety under the Workmen's Compensation Law. Appellant had waived the provisions of I.C.A., sec. 43-1107, and elected to receive the benefits of a hospital contract between respondent Brown and the Western Hospital Association.

About February 25, 1941, appellant entered the employ of respondent Brown as a cedar pole maker. On March 12, 1941, appellant stepped up on to a cedar pole which he had just fallen and had peeled, and which was slippery, in order that he might measure and cut the pole to size, and while in this position and in the performance of his work, he slipped on or from the pole and fell upon his right shoulder, striking the outer rim or edge of a three-foot stump, as a result of which he was severely hurt and by reason of which he sustained a contusion of the shoulder, including the capsule joint, muscles of the shoulder girdle, and nerves of the shoulder, resulting in a "frozen" shoulder, and also loss of function in the right arm and limitation of motion. By reason of the above injury, thus described, appellant suffered permanent partial disability equal and comparable to twenty-five percent loss of one arm by amputation at the shoulder, and the disability became permanent on or about May 9, 1941.

On March 13, 1941, appellant called at the office of Dr. Hopkins, one of the physicians in charge of the hospital, of the Western Hospital Association, at Orofino, the contract doctor and hospital, where, after giving a history of the accident and injury, he was examined, and received treatment. Appellant received treatment regularly from Dr. Hopkins from April 19, 1941, to and including may 7, 1941, at which time he left the hospital, his permanent disability having become fixed. Dr. Hopkins, approximately five days after the accident, made out and mailed to Ralph S. Nelson, president and adjuster for respondent Idaho Compensation Company, on a form prescribed by the Industrial Accident Board, a report in which, among other things, was stated that appellant had a contused right shoulder received as a result of the injury sustained on March 12, 1941, while working for respondent and caused by slipping on a pole and falling and striking his shoulder as heretofore referred to. The report was received by Mr. Nelson in due course of mail at Coeur d'Alene, Idaho.

Respondent Brown, among other things, testified substantially that he did not know appellant was in the hospital or under Dr. Hopkins' care; that had his attention been called to the injury sustained by appellant he would have immediately transmitted such information to Mr. Nelson, his surety under the Workmen's Compensation Law; that he did not attempt to adjust any claims or arrange for medical care or hospitalization for injured men in his employ. He further testified that when he did receive information of the injury he immediately communicated such information to Mr. Nelson.

The Industrial Accident Board, among other findings of fact, found:

"That it has not been shown that the employer, or any agent or representative of his, within sixty days after the accident, had any knowledge of the accident, or that the employer has not been prejudiced by such delay or want of notice." (Italics ours.)

Based upon the foregoing finding of fact, the Board made the following ruling of law:

"That the claimant, Harry Long, is not entitled to an award against the defendants, A. B. Brown, employer, and Idaho Compensation Company, surety, or either of them; that his claim for compensation should be denied and his application dismissed; that an order should be given, filed and entered accordingly."

Whereupon the board ordered that appellant take nothing by reason of the proceedings had, and denied and dismissed appellant's application for compensation. This appeal is from the order.

The board found in effect, in other findings, that appellant sustained an injury by accident arising out of and in the course of his employment, but denied compensation upon the ground, and for the reason, that neither respondent employer nor any agent or representative of his, within sixty days after the accident, had notice or knowledge of the accident; that appellant...