Pinyon Queen Mining Co. v. Industrial Commission of Utah

• Citation: 59 Utah 402,204 P. 323
• Decision Date: 28 January 1922
• Docket Number: 3744
• Court: Supreme Court of Utah
• Parties: PINYON QUEEN MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

204 P. 323

59 Utah 402

PINYON QUEEN MINING CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3744

Supreme Court of Utah

January 28, 1922

Original certiorari proceeding by the Pinyon Queen Mining Company and another against the Industrial Commission to annul an award to Matt Finn of compensation for injuries.

AWARD AFFIRMED.

Bagley Fabian, Clendenin & Judd, of Salt Lake City, for plaintiffs.

Herbert Van Dam, Jr., of Salt Lake City, for defendant and Matt Finn applicant for compensation.

WEBER J. CORFMAN, C. J., and GIDEON and THURMAN, JJ., FRICK, J concurring.

OPINION

WEBER, J.

Plaintiffs have instituted proceedings for certiorari in this court for the purpose of having annulled the award made by the Industrial Commission for compensation to one Matt Finn, who was injured on April 7, 1921, while in the employ of the Pinyon Queen Mining Company. After the award was made a rehearing was granted on application of the state insurance fund. Further evidence was thereupon taken at the second hearing, upon which the award was affirmed and the findings modified. Counsel for applicant now moves that the record and proceedings returned and certified by the Industrial Commission subsequent to the award made September 19, 1921, be stricken and disregarded for the reason that no notice of application for rehearing was ever served upon the applicant or his counsel, and no opportunity was ever given applicant to be heard respecting such motion. In support of this motion counsel say they cannot see where any harm could come to either employer or employe in requiring that each side of the controversy before the Commission be kept informed of proceedings before it, and that "employers would be quick to complain of hearings before the Commission on applications for compensation, on applications for rehearing, and on application for lump sum payments, etc., if such hearings were held without notice to them or opportunity to be heard."

So far as applications for rehearing are concerned, it would be a useless and cumbersome proceeding to have the parties appear for a special hearing on the motion for rehearing. There is no formal hearing on a motion for rehearing and when a petition for rehearing is pending it is properly disposed of ex parte. If denied, the adverse party has no cause for complaint, and, if granted, the parties are given notice of the rehearing, as was done in the instant case, by the Commission. The statute provides that the Industrial Commission shall not be bound by any technical or formal rules of procedure other than in the statute provided. Notice of the hearing on the petition for rehearing is not provided by the statute and no valid reason has been given why such notice should be required by the Commission. After the rehearing was granted, applicant was given notice of the second hearing, and thus all his rights were fully protected.

An examination of the transcript of the evidence produced at both hearings shows that there is evidence tending to support the findings objected to and also evidence to the contrary. When there is any substantial evidence supporting an award the determination of questions of fact by the Industrial Commission is conclusive, and, as we have repeatedly held, this court will not in such cases pass upon the weight of the evidence. It is therefore unnecessary to review the testimony in this case. All the essential facts are stated in the findings of the Commission. Omitting what was found as to employment of the applicant by the mining company and the wages paid him, the Commission's findings were as follows:

"That on the 7th day of April, 1921, the engineer of the defendant sent a note into the mine, where the applicant was working, requesting him and his partner to come out of the mine and on top to assist in recovering a mine car that had gone over the top. A rope was tied to the mine car, the engineer and the applicant's partner were pulling on it, and the applicant was below pushing on the car, when his foot slipped, the car raised up, and the applicant fell back with the weight of the car on his right arm, and twisted it. The applicant indicated to his partner at the time of the accident that he had turned his right arm by saying, 'Wait a minute; I hurt my arm.' This happened about 9 o'clock p. m., and about 2 1/2 hours after the applicant started to work. After the accident the applicant went back into the mine and worked about an hour, came up out of the mine, ate part of his supper, and noticed considerable swelling in his right arm about the elbow, and suffered intense pain and was obliged to discontinue work. The next day he saw the foreman, who told him to see Dr. Bailey. However, the applicant went to see Dr. Laker at Eureka. While in Dr. Laker's office the applicant rolled up his sleeve and told the doctor that he had hurt his arm, and at that time his arm was badly swollen. For 3 years prior to the accident the applicant was able to perform his regular duties as a miner, and at no time for 3 years prior to the accident was applicant physically unable to do his daily work.

"That the applicant admits in his testimony that at the time of the accident, and for some time prior to the accident, he was afflicted with an organic disease known as syphilis, but that his syphilitic condition never interfered in any way with his employment; that he worked for the defendant satisfactorily prior to the accident and was physically able to perform his duties as a miner for the defendant; that the character and extent of the injury so received by the applicant was such that, if unaccompanied by said disease, applicant would have recovered therefrom within 6 weeks at the outside; that, if the applicant had received prompt and proper treatment, the effect thereof on said injury and the combined effect of the two would not have resulted in a total disability in excess of the 10 weeks for which applicant had already received compensation; that both the applicant and the attending physician previously had known that applicant was infected with such disease, but was not given treatment for said disease, but thereafter, on or about July 1st, applicant for the first time commenced receiving treatment for the disease, and his arm trouble cleared up within 60 days, so that applicant was able to and did resume work on September 1, 1921."

As part of its conclusions, the Commission found:

"In view of the foregoing findings, the Commission concludes that on the 7th day of April, 1921, the applicant had 'a pre-existing constitutional disease known as syphilis, which, being dormant, left his ability to perform the arduous work of a miner for which he was hired, unimpaired, and that, because of the nature of the accident being sufficiently severe to accelerate this condition, the applicant was deprived of his usual capacity for work.' While we find in finding No. 3 that the injury was such that, if unaccompanied by said disease, the applicant would have recovered therefrom within six weeks at the outside, the Commission concludes that the employer takes a man as he is, and therefore should pay compensation for the full period of disability suffered by reason of the accident sustained on the 7th day of April, 1921, without considering the syphilitic condition which no doubt prolonged his disability period. * * *"

Plaintiffs contend that the conclusion of the Commission awarding applicant full compensation for the period of disability suffered by reason of the accident, without considering the syphilitic condition, is erroneous.

The question involved here may be stated as being:

"If an existing disease is aggravated by accidental injury, must compensation be paid for the resulting incapacity?"

What courts have held with uniformity is stated in Kaiser's (Corpus Juris) pamphlet on Workmen's Compensation Acts, at page 69, § 58, as follows:

"Acceleration of a diseased bodily condition may constitute a personal injury, and an injury may be by accident, although it would not have been sustained by a perfectly healthy individual. So death may be regarded as having been caused by an injury, although there was a diseased condition prior to the injury without which death would not have ensued, and partial or total incapacity may spring from, and be attributable to, the injury, where undeveloped and dangerous physical conditions are set in motion producing such a result as well as where there is a dislocation or dismemberment, or an internal organic change capable of being exactly located." (Numerous cases are cited by the author fully sustaining the above text.)

The opinion generally expressed by the court is that stated in Crowley's Case, 223 Mass. 288, 111 N.E. 786, as follows:

"The material evidence before the arbitration committee, submitted without the introduction of further testimony to the Industrial Accident Board upon review warranted the findings that the employe had 'a pre-existing constitutional disease, known as syphilis,' which, being dormant, left his ability to perform the arduous work for which he was hired unimpaired, and that, because of the nature of the accident arising out of and in the course of employment, his nervous system suffered a shock sufficiently severe to aggravate and accelerate this condition, until general paralysis or insanity resulted depriving him of all capacity for work in the future. The statute prescribes no standard of fitness to which the employe must conform, and compensation is not based on any implied warranty of perfect health or of immunity from latent and unknown tendencies to disease which may develop into positive ailments if incited to activity through any cause originating in the performance of the work for which he is hired. What the...