Nelson v. Tesemini Timber Protective Association

• Decision Date: 16 November 1938
• Docket Number: 6592
• Citation: 59 Idaho 529,84 P.2d 566
• Parties: A. B. NELSON, Administrator of the Estate of HOWARD PUCKETT, Deceased. CASSEDY FUNERAL HOME and STATE OF IDAHO, on the Relation of HARRY C. PARSONS, State Auditor, Respondents, v. TESEMINI TIMBER PROTECTIVE ASSOCIATION, and STATE DEPARTMENT OF FORESTRY, Employers, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

84 P.2d 566

59 Idaho 529

A. B. NELSON, Administrator of the Estate of HOWARD PUCKETT, Deceased. CASSEDY FUNERAL HOME and STATE OF IDAHO, on the Relation of HARRY C. PARSONS, State Auditor, Respondents, v. TESEMINI TIMBER PROTECTIVE ASSOCIATION, and STATE DEPARTMENT OF FORESTRY, Employers, and STATE INSURANCE FUND, Surety, Appellants

No. 6592

Supreme Court of Idaho

November 16, 1938

WORKMEN'S COMPENSATION - COMPENSABLE ACCIDENT - TICK BITE - PROBABLE CAUSE OF INJURY-BURDEN OF PROOF.

1. In compensation proceeding, claimant has burden of establishing the probable cause of disability or injury. (I. C. A., sec 43-901 et seq.)

2. A bite of an infected wood tick, resulting in workman's death from Rocky Mountain Spotted Fever, is a compensable "accident." (I. C. A., sec. 43-901 et seq.)

3. In compensation proceeding for death of workman from Rocky Mountain Spotted Fever resulting from bite of a wood tick testimony concerning probable duration of the disease held to authorize finding that bite was received while workman was employed, making the death compensable. (I. C. A., sec 43-1101, subd. 6.)

APPEAL from the Industrial Accident Board.

Proceedings under Workmen's Compensation Law. From an order of the Industrial Accident Board awarding $ 1,000 to the Treasurer of the State of Idaho on behalf of the Industrial Administration Fund and $ 200 to A. B. Nelson, Administrator of the estate of Howard Puckett, deceased, appellants appeal. Affirmed.

Affirmed.

Carroll F. Zapp, for Appellant.

The burden is upon compensation claimant to establish that the death of deceased employee was the result of a personal injury by accident arising out of and in the course of employment. (Sec. 43-1001, I. C. A.; Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327.)

J. Ward Arney, J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondents.

A compensation claimant is only required to establish probable:

(a) Accidental injury.

(b) Connection between accident and death. (McNeil v. Panhandle, 34 Idaho 773, 203 P. 1068; In re Larson, 48 Idaho 136, 279 P. 1087; Strouse v. Hercules Min. Co., 51 Idaho 7, 1 P.2d 203.)

The record conclusively (and not merely probably) establishes:

(a) That Puckett was working in a tick-infested area.

(b) That Puckett died of Rocky Mountain Spotted Fever, caused by tick bite.

(c) That the incubation and development period of the fever virus was within the employment period:

"The locality where the deceased was employed was infested with woodticks. From the date of his employment . . . . the deceased was constantly with the sheep. The physician who attended . . . . found . . . . 'tick bites' . . . . (and) had had considerable experience with Rocky Mountain Spotted Fever, and he testified that Smith had, and died with, that fever." (Smith v. McHan, etc., 56 Idaho 43, 48 P.2d 1102, 1104.)

BUDGE, J. Holden, C. J., Morgan and Givens, JJ., concur. Ailshie, J., did not participate.

OPINION

BUDGE, J.

This is a direct appeal from an award of the Industrial Accident Board awarding $ 1,000 to the treasurer of the state of Idaho on behalf of the Industrial Administration Fund pursuant to section 43-1101, subsection 6, I. C. A., and $ 200 funeral expense to A. B. Nelson, administrator of the estate of Howard Puckett, deceased.

On the evening of August 13th, 1936, about 10 or 11 o'clock, deceased came to the cabin of Bert Percival and complained of feeling ill and arranged to spend the night in Percival's cabin. During the night deceased's condition grew worse and on the morning of August 14th he was taken to the hospital at Spirit Lake in a delirious and helpless condition. His illness was diagnosed as Rocky Mountain Spotted Fever resulting from the bite of an infected wood tick. The deceased grew steadily worse and died on August 19, 1936.

The single question presented by this appeal is whether the evidence established that the death of the deceased from Rocky Mountain Spotted Fever resulted from the bite of an infected wood tick received while deceased was employed by appellant Tesemini Timber Protective Association fighting fire, or, while unemployed.

This court has heretofore announced the rule that the burden of proof is upon the claimant to establish the probable cause of disability or injury. (Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Strouse v. Hercules Min. Co., 51 Idaho 7, 1 P.2d 203; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; In re Larson, 48 Idaho 136, 279 P. 1087; Roe v. Boise Grocery Co., 53 Idaho 82, 21 P.2d 910.) It is in...