Nitkey v. Bunker Hill & Sullivan Min. & Concentrating Co.

• Decision Date: 10 December 1952
• Docket Number: No. 7873,7873
• Citation: 73 Idaho 294,251 P.2d 216
• Court: Idaho Supreme Court
• Parties: NITKEY v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

Page 216

251 P.2d 216

73 Idaho 294

NITKEY v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO.

No. 7873.

Supreme Court of Idaho.

Dec. 10, 1952.

Brown & Peacock, Kellogg, for appellant.

E. B. Smith, Boise, for respondent.

THOMAS, Justice.

On May 23, 1945, claimant, Jack E. Nitkey, while employed by Bunker Hill and Sullivan Mining & Concentrating Company, self-insurer, suffered an accident arising out of and in the course of his employment. Claim was made and filed for compensation and the matter was heard before the Board. At the conclusion of the hearing, and on November 30, 1946, the parties entered into a written compensation agreement which was filed with the Board and approved December 16, 1946.

The agreement provided for the payment of total temporary disability for loss of time from the date of the injury to the 13th day of August, 1945, at the rate of $16 per week in the sum of $192 and permanent partial disability equivalent to the amputation of a leg at the hip at $16 per week for 180 weeks in the sum of $2851.20.

On February 2, 1949, an application for modification of the original award was filed, claiming permanent total disability due to changed conditions.

At the conclusion of the several hearings, and on February 18, 1952, the Board found that subsequent to the first award based upon the agreement which the Board approved, claimant's injuries residual of his accident gradually increased in extent and severity, by reason whereof he has incurred physical impairment in addition to that for which he had been previously compensated under the agreement, and that said additional disability is equivalent to the loss of a leg between the knee and the ankle and claimant was entitled to recover from the employer additional specific indemnity for a period of 140 weeks at $16 per week, beginning January 24, 1949, and made its award in accordance therewith.

From the award both the employer (appellant) and the claimant (cross-appellant) appealed.

The appellant urges that all the medical testimony at the original hearing discloses that claimant was totally and permanently disabled by reason of pre-existing osteo-arthritis accelerated by the industrial injury and that, as was incumbent on the Board under Sec. 72-323, I.C., in making the original award, it adjudicated the apportionable compensable norm of claimant's total disability between the disease and the accident and hence it became and is res adjudicata, and that claimant being totally disabled for work at the time of the original hearing this would represent the ultimate disability from which no change to the greater disability was possible.

The compensation agreement which was approved by the Board had the same effect as an award by the Board. Blackburn v. Olson, 69 Idaho 428, 207 P.2d 1160.

An award of the Board in the absence of fraud shall be final and conclusive between the parties except as provided in Section 72-607, I.C., unless an appeal is taken therefrom as provided by Section 72-608, I.C. There was no appeal taken from the original award and no fraud is claimed or was proved in the instant proceedings.

Upon application made by any party within four years of the date of the accident on the ground of change of conditions, the Board may review an award and on such review make an award diminishing or increasing compensation previously agreed upon subject to the maximum and minimum provided in the Act. Section 72-607, I.C.

Under the Workmen's Compensation Act, the doctrine of res adjudicata applies to all questions which might have been raised as well as to all questions that were raised. Blackburn v. Olson, supra.

Entering into the compensation agreement constituted an admission by the employer (self-insurer) equivalent to a factual finding by the Board that claimant's disability was permanent and partial; no appeal having been taken therefrom, it was res adjudicata on the question as to whether or not the disability was at that time partial or total. Blackburn v. Olson, supra; De Santis v. Turner Const. Co., 120 N.J.L. 590, 1 A.2d 202; Harris v. Southern Carbon Co., 189 La. 992, 181 So. 469; Bartlett-Collins Glass Co. v. Washabaugh, 166 Okl. 90, 26 P.2d 420; Russell v. Bald Eagle Mining Co., 44 Ariz. 105, 33 P.2d 616; Bates v. Linde, 49 Ariz. 192, 65 P.2d 655.

The agreement of the parties to the effect that the claimant was permanently and partially disabled as a result of the accident as of May 23, 1945, the date thereof, was in the absence of an appeal final and conclusive as to the disability up to that date, and while it would preclude a later finding that the claimant was totally and permanently disabled from the date of the accident, it would not preclude a subsequent finding of total permanent disability or a greater degree of permanent partial disability upon a showing of changed conditions. McGee v. Youghiogheny & Ohio Coal Co., 121 Pa.Super. 85, 182 A. 773. Such an award stands as an adjudication of all matters in dispute up to the time of its rendition and neither party thereafter is permitted to say that it was wrong in any respect in the absence of fraud, Zapantis v. Central Idaho Min. & Mill. Co., 61 Idaho 660, 106 P.2d 113; Franklin County Mining Co. v. Industrial Commission, 322 Ill. 555, 153 N.E. 608; Cobine v. Industrial Commission, 350 Ill. 384, 183 N.E. 220; Pedlow v. Swartz Electric Co., 68 Ind.App. 400, 120 N.E. 603; or be heard to say that the evidence in the original hearing showed either a greater or a lesser disability, Pedlow v. Swartz Electric Co., supra; or to correct errors, if any, therein. Barry v. Peterson Motor Co., 55 Idaho 702, 46 P.2d 77; see also 122 A.L.R. 550-586.

An award is not final as to a changed condition of the claimant which is attributable to the original injury. This is so because it cannot possibly be foreseen with certainty what the future condition may be and the award is not res adjudicata on such changed physical condition and hence not so on the amount which, should the condition of the claimant change, be ultimately awarded. Mustanen v. Diamond Coal & Coke Co., 50 Wyo. 462, 62 P.2d 287; Nagel v. Dept. of Labor, 189 Wash. 631, 66 P.2d 318; Klum v. Lutes-Sinclair Co., 236 Mich. 100, 210 N.W. 251; South v. Indemnity Insurance Co., 39 Ga. 47, 146 S.E. 45.

We hold that the original award was res adjudicata only as to the matters therein raised and determined and which might have been raised therein; that it was res adjudicata upon the proposition that the claimant was permanently and partially disabled equivalent to the amputation of a leg at the hip; it is not, and it could not be under our statute, an adjudication against a subsequent increase of that disability upon a change of conditions.

Appellant urges that the evidence is insufficient as a matter of law to support a change of physical condition subsequent to the time of the original hearing; that there was no evidence to show that claimant experienced a change in physical ability to perform work but the record, including the opinion of the medical experts at the first hearing, clearly shows that he was totally and permanently disabled for work when the...