Martin Estate v. Woods

• Decision Date: 02 June 1972
• Docket Number: No. 10672,10672
• Citation: 94 Idaho 870,499 P.2d 569
• Parties: Richard MARTIN ESTATE, Claimant-Appellant, v. Robert W. WOODS, d/b/a Woods Lumber Company, and Argonaut Insurance Company, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 569

499 P.2d 569

94 Idaho 870

Richard MARTIN ESTATE, Claimant-Appellant, v. Robert W. WOODS, d/b/a Woods Lumber Company, and Argonaut Insurance Company, Defendants-Respondents.

No. 10672.

Supreme Court of Idaho.

June 2, 1972.

Stephen Bistline, Sandpoint, for claimant-appellant.

Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respondents.

McFADDEN, Justice.

On May 1, 1962, Richard Martin was employed by Robert W. Woods. He was married and the father of two minor children. On that date he sustained grievous multiple injuries in an industrial accident arising out of his employment.

Martin had been drawn into a winch in the lumber company's operation. He sustained the loss of his right eye, his right arm was badly broken and ultimately was rendered useless, two fingers of his right hand were lost, his right thumb broken, five of his right ribs were broken with complications, he sustained multiple fractures of his right facial and skull bones, with severe avulsion of the skin of his face and scalp.

He was first treated by Dr. Marienau of Sandpoint who because of the nature and severity of the injuries, placed him under the care of three specialists in Spokane, Washington. Martin was hospitalized in Spokane and while there was treated by Dr. Gates, an opthalmologist, Dr. Maris, an orthopedic surgeon, and Dr. Hamacher, a specialist in the field of plastic surgery. He remained in the Spokane hospital for over a month, was readmitted at the end of September, 1962, for surgery on his right arm, and following that was discharged October 5, 1962. In December, 1962, he was again readmitted for surgery on his jaw. He was also being treated by Dr. Marienau during the interims that he was out of the hospital in Spokane.

The treatment by Dr. Marienau continued until October of 1963, when Mr. Martin met his death on a hunting trip.

In June, 1962, Martin filed his claim and petition for hearing with the Industrial Accident Board. Initially, respondent Argonaut Insurance Company, which had been Woods' surety, disclaimed liability on the ground that its contract with Woods had lapsed prior to the accident. The Board dismissed Argonaut, and an action was filed in the district court against Argonaut, seeking adjudication of its liability, which action was dismissed. On appeal to this Court, the district court dismissal was reversed and the cause remanded for trial on the issue as to whether Argonaut was the surety for Woods at the time of the accident. See Martin v. Robert W. Woods Lumber Co., 90 Idaho 105, 408 P.2d 474 (1965); and Martin v. Argonaut Ins. Co., 90 Idaho 107, 408 P.2d 475 (1965). Following trial on the merits, after remittitur, the district court held that Argonaut was the surety for Woods and was obligated as surety under its contract. This district court judgment was affirmed by this Court on appeal. Martin v. Argonaut Ins. Co., 91 Idaho 885, 434 P.2d 103 (1967).

After the 1967 decision by this Court, Mrs. Martin, the widow of Richard Martin, as the administratrix of his estate, petitioned the Board seeking an award based on specific indemnities for Mr. Martin's injuries, and for an award of total temporary benefits and reasonable attorney's fees. Respondents by their answer to the petition, alleged that following the 1967 decision of this Court, Argonaut, after receipt of medical and hospital records, and after the estate proceedings had been instituted, paid in full all hospital, medical and kindred expenses, plus payment of total disability compensation from the time of the accident to Martin's death. Argonaut then took the position that Martin's injuries were of such a nature that he was to be considered as totally and permanently disabled.

The Board held a series of hearings dealing with the issues presented. Two members of the Board, Mr. Defenbach and Mr. Geddes, conducted a hearing at Sandpoint Idaho, on June 25, 1969, where the testimony of Dr. Fred Marienau was taken. The depositions of Dr. Edward M. Hamacher and of Dr. Robert W. Maris, both of Spokane, were taken on August 11, 1969, before Mr. Defenbach, as a continuation of the June 25 hearing held at Sandpoint. The final hearing was held at Coeur d'Alene on October 13, 1969, before board members Defenbach and Brown, at which time the testimony of Mrs. Martin was taken. Various exhibits were admitted during the course of these hearings, including the full medical reports of the doctors, the records of hospitals, and other items.

The Board in its findings traced the complex history of this claim before the Industrial Accident Board, the District Court and the Supreme Court, and entered the customary findings as to the status of the employee, his background, the facts concerning the accident and a recitation of the nature of this injuries and his medical treatment at the hands of the doctors and the treatment he received in the hospital. The Board found that the decedent had incurred numerous hospital, medical and kindred expenses and that they had been paid by Argonaut in the amount of $4,575.12, in addition to Argonaut having made payments for total disability for the period of May 1, 1962, to October 20, 1963, in the amount of $3,139.42. The Board approved all of the payments so made.

In its conclusions of law, the Board held that from the date of the accident, until his death in October, 1963, Mr. Martin was totally disabled, and that at the time of his death Mr. Martin was totally and permanently disabled, and that payment by the surety of the total disability payments satisfied the obligation of the employer and surety. The Board further held against appellant's claim that the estate was entitled to additional payments on the basis of specific indemnities under I.C. § 72-313. The Board's conclusion of law 4 reads:

'The Board further concludes that specific indemnity losses attributable to the industrial accident of May 1, 1962, sustained by the decedent, Richard Martin, in this case, loss of the right eye by enucleation and loss of the use of the right arm, in addition to impairative (sic) ratings to specific indemnities as provided under Section 72-313, Idaho Code, for other enumerated multiple injuries constitute multiple injuries which are the basis of the total permanent disability herein, and in that instance and as applied herein, cannot survive to the estate of the decedent as does a permanent partial disability as previously announced by the Supreme Court of the State of Idaho; it is therefore the conclusion of this Board that specific indemnities under Section 72-313, Idaho Code, or under Section 72-311, Idaho Code, when combined to constitute a total and permanent disability, cannot survive to the estate and only survive in the event of a specific indemnity loss or comparative rating based upon a specific indemnity loss which would constitute a disability less than total, to-wit: A permanent partial disability, which, is not the case herein.'

The Board then, in its order, held that the appellant take nothing in addition to the payments previously made by the surety.

The principal issue presented by appellant's assignments of error is the determination by the Board that the decedent, Martin, suffered a total and permanent disability as a result of the industrial accident.

Appellant, in effect, asserts that the record fails to sustain the Board's finding and conclusion that at the time of decedent Martin's death he was totally and permanently disabled. She contends that there is no dispute in the record and hence that this Court should make this determination unfettered by the findings by the Board. She further asserts that inasmuch as the testimony of Dr. Hamacher and Dr. Maris was taken only before Mr. Defenbach of the Board, the other board members had to consider this evidence from the deposition, and this Court is in as good a position to make the factual determination as was the Board, when only one member heard the testimony.

While there is authority that this Court is not bound by findings of the Board based on a written record (Graves v. American Smelting & Refining Co., 87 Idaho 451, 394 P.2d 290 (1964); In re Markham's, Inc., 79 Idaho 307, 316 P.2d 553 (1957)), this principle is not applicable in the instance. It is to be recalled that the testimony of Dr. Marienau, one of the appellant's witnesses, was taken before two members of the Board.

This Court has held that the weight and credence to be given the testimony of a witness heard by the Board is for the Board to determine. In such case the Board's findings, when supported by substantial competent evidence, must be sustained even though there may be other conflicting evidence. In re Sutton v. Brown's Tie & Lumber Co., 83 Idaho 265, 361 P.2d 793 (1961). Thus, any finding of fact by the Board which is based upon the testimony of Dr. Marienau, whose testimony was heard by two members of the Board, would be binding on this Court, provided it was substantial and competent.

The Board's finding of fact incorporated the following testimony of Dr. Marienau:

"He (Mr. Martin) had some definite permanent injuries. He had lost his right eye, it was completely gone. He had a permanent injury to his right arm, poorly healed fractures, lost two fingers on that hand, had fractures that had healed in his wrist and his upper arm, were deformed. He had a nerve injury to his radial nerve which paralyzed most of the muscles in his lower arm and hand.'

'In addition to the foregoing, Dr. Marienau further described additional injuries as follows:

'He had had a fractured jaw with his original injury and fractured upper jaw and lower jaw. He had some adhesions and loss of motion in his jaw. He could open his mouth very little, he had much difficulty chewing. He had much facial deformity from the injuries to his facial bone and to the facial skin and much scarring. He had some deformed ribs and he had much pain in his chest where he had had broken ribs.'

'Dr....