McCall v. Potlatch Forests, Inc.

• Decision Date: 02 July 1947
• Docket Number: 7335
• Citation: 182 P.2d 156,67 Idaho 415
• Parties: McCALL v. POTLATCH FORESTS, Inc., et al
• Court: Idaho Supreme Court

182 P.2d 156

67 Idaho 415

McCALL v. POTLATCH FORESTS, Inc., et al

No. 7335

Supreme Court of Idaho

July 2, 1947

Appeal from Industrial Accident Board.

Order reversed and proceeding remanded with instructions.

Frank L. Benson, C. V. Boyatt, and A. T. Fredricks, all of Boise and Paul C. Keeton, of Lewiston, for appellant.

An injured workman is totally disabled within the meaning of the Workmen's Compensation Laws if he cannot do manual labor or resume the type of work he was doing at the time of the injury even though he is able to engage in other remunerative activity. Black Star Coal Co. v. Surgener, 297 Ky 653, 181 S.W.2d 53; Schaab v. Irwin, 298 Ky. 626 183 S.W.2d 814; Stovall v. American Emp. Ins. Co La.App., 26 So.2d 321; Hecht v. Higgins Industries, La.App., 25 So.2d 351; Brown v. Continental Oil Co., La.App., 22 So.2d 758; Butzman v. Delta Shipbuilding Co., La.App., 21 So.2d 80.

Under the Workmen's Compensation Law compensation is payable for loss of capacity to earn in the employment in which the workman was engaged at the time of the accident. Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769; Flynn v. Carson, 42 Idaho 141, 243 P. 818.

Elder & Elder, of Coeur d'Alene, for respondents.

That the order appealed from is not an appealable order within the meaning of Sec. 43-1409 as amended by Chapter 70 of the 1939 Session Laws of Idaho. Witty v. Wells, 39 Idaho 20, 225 P. 1020; Blaine County National Bank v. Jones, 45 Idaho 358, 262 P. 509; Thiessen v. Riggs, 5 Idaho 21, 46 P. 829; Weiser Irrigation District v. Middle Valley, 28 Idaho 548, 155 P. 484; Lamberton v. McCarthy, 30 Idaho 707, 168 P. 11.

Compensation agreement approved by the Industrial Accident Board is final and conclusive between the parties in the absence of fraud except that it may be modified under Sec. 43-1407, and is res judicata to all questions which could have been raised therein. I.C.A. §§ 43-1402 and 43-1407; Pruett v. Cranston Chevrolet Co., 63 Idaho 478, 121 P.2d 559; Rodius v. Coeur d'Alene Mill Co., 46 Idaho 692, 271 P. 1; Reagan v. Baxter Foundry, 53 Idaho 722, 27 P.2d 62.

Sutton, District Judge. Budge, C. J., and Givens, Holden and Miller, JJ., concur.

OPINION

Sutton, District Judge.

July 14, 1941, appellant sustained an accidental injury arising out of his employment as a member of a log loading crew. As a result of such injury he was hospitalized for a period of weeks after which he was discharged as surgically healed. November 24, 1941, appellant and respondents entered into a compensation agreement fixing the amount of appellant's temporary total disability and the extent of his permanent partial disability, which agreement was approved by the Industrial Accident Board on December 22, 1941. By the compensation agreement appellant's permanent partial disability was fixed and determined to be the equivalent of 15% as of amputation of a leg at the hip. July 11, 1945, appellant filed his application for review with the Industrial Accident Board pursuant to Sec. 43-1407, I.C.A., and on July 13, 1945, filed an amended application for such review wherein, after reciting certain preliminary and jurisdictional matters and alleging the making of the compensation agreement, it is alleged that since said claimant signed said instrument, his physical condition has changed, in that he now suffers a much greater degree of pain in his legs and back, and that he now cannot move or use his back and legs to the extent that he could at the time said instrument was signed. The matter finally came on for hearing before G. W. Suppiger, member of the Board and chairman thereof, in the cities of Lewiston, Idaho, and Spokane, Washington, on the 12th and 17th days of June, 1946. July 25, 1946, Mr. Suppiger made findings of fact and rulings of law. Thereafter appellant made a claim for a review of said findings by the Board pursuant to Sec. 43-1404, I.C.A. Thereafter, and on September 13, 1946, the Board rendered its decision on review wherein it is recited, among other things, "The Industrial Accident Board, having duly considered the record and counsels' briefs, hereby approves and adopts the Findings of Fact and Rulings of Law herein made and filed on July 25, 1946, and hereby approves and re-affirms the said order of continuance as made on said date." Thus the findings of fact, rulings of law and order made by the chairman of the Board became the findings of fact, rulings of law, and order of the Board.

In Finding of Fact No. 7, in addition to summarizing the testimony of claimant and the several witnesses called by the parties, it is recited "it is specially found that there has been a change in Claimant's condition due to his accident and injury since November 24, 1941, the date the compensation agreement was made; that his conditions are progressively worsening; that he now has a physical impairment resulting from his accident and injury which is greater than 15% loss of a leg by amputation at the hip; that the conditions are not yet fixed, definite or permanently determinable; that to now fix the amount of his permanent physical impairment due to claimant's accident and injury may result in an irreparable injury to him because the period within which he may again ask for a modification of an award has already expired." The Rulings of Law are as follows:

"1 -- There has been a change in Claimant's condition due to his accident and injury and he is entitled to a modification of his contract March 24, 1941 [November 24, 1941].

"2 -- Claimant now has a physical impairment greater than at the time the contract between him and the defendants were entered into but the amount of permanent impairment is not yet definite, fixed or permanently determinable.

"3 -- That neither the claimant nor the defendant is at this time entitled to an order fixing or determining the amount of permanent physical impairment claimant has by reason of the accident and injury.

"4 -- That claimant is entitled to further and additional medical and surgical attendance and hospital services from the Western Hospital Association whenever his condition becomes so he needs it.

"5 -- In order that claimant may not be precluded of, or limited in, his rights when his condition becomes so it is fixed and definite and the amount of his permanent physical impairment can be permanently determined, the Industrial Accident Board should retain continuing jurisdiction and the hearing had should not be concluded but should be continued until such time as his condition resulting from his accident and injury becomes fixed and definite and the amount, if any, of his permanent physical impairment, over and above 15% loss by amputation of the leg at the hip, can be permanently fixed and determined.

"Wherefore instead of at this time making any order for fixing and determining the...