Silver King Coalition Mines Co. v. Industrial Commission of Utah

• Decision Date: 22 June 1937
• Docket Number: 5860
• Citation: 69 P.2d 608,92 Utah 511
• Court: Utah Supreme Court
• Parties: SILVER KING COALITION MINES CO. v. INDUSTRIAL COMMISSION OF UTAH et al

69 P.2d 608

92 Utah 511

SILVER KING COALITION MINES CO. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5860

Supreme Court of Utah

June 22, 1937

Original proceeding by the Silver King Coalition Mines Company to review a determination of the Industrial Commission of Utah awarding compensation to Claude Hancock employee.

AFFIRMED.

R. J Hogan, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and Grover A. Giles, Deputy Atty. Gen., for defendants.

WOLFE, Justice. FOLLAND, C. J., and EPHRAIM HANSON and LARSON, JJ., concur. MOFFAT, J., concurs in the results.

OPINION

WOLFE, Justice.

Claude Hancock, an employee of the Silver King Coalition Mines Company, on June 9, 1932, in the course of his employment, was caught between a motorcar and an ore chute, receiving a crushing injury. It tore away the left clavicle at the breastbone and broke the first seven ribs from their unions with the breastbone. The seven ribs reunited but not at their normal positions. They overlap and are reunited by ankylosis. This has compressed this left side and decreased the diameter of his thorax. The depression is one to one and a half inches below the plane of the sternum or breastbone.

It appears that on March 30, 1933, the commission, after the man was examined by its medical committee, sent the conclusions of that committee to the plaintiff with a letter of which the following is the main paragraph: "In view of the conclusions reached [conclusions of the medical committee ], we recommend that Mr. Hancock be paid on the basis of 50% permanent partial loss of bodily function, which would be 100 weeks compensation, and would be in addition to the compensation paid on account of temporary total disability."

The medical committee had found a "total bodily disability of 50%." In pursuance of this recommendation, plaintiff paid compensation for permanent partial disability of $ 1,125 to March 3, 1935. On October 5, 1935, Hancock made an application for "further disability and compensation covering same." A hearing on this application was had by the commission on December 9, 1935, at which time the attorney for plaintiff objected on the ground that the case was closed and the condition fixed and an award made for the full disability. In answer to this objection, the auditor commissioner made the following observation: "Let the record show that the Commission has at no time rendered a formal award in this case; that he appeared before the Medical Advisory Board on March 24, 1933, at which time we recommended through Commissioner McShane, that the applicant be paid on the basis of 50% permanent partial loss of bodily function which would be 100 weeks compensation," etc. It is therefore not clear whether the additional 40 weeks' compensation which was finally given in pursuance of this hearing of December 9, 1935, and a continued hearing had on June 18, 1936, and a medical board examination of June 26, was given on the theory that the former recommendation contained in the letter of March 30th was tentative, meaning that the commission believed that at least a 50 per cent loss of bodily function had been suffered and that plaintiff should at least pay up to that figure, leaving for final determination by the commission whether it fully or only partially covered what would be finally determined to be the full permanent partial disability or whether 40 weeks was awarded on the theory of a change of condition. There is evidence to support the additional 40 weeks on either theory. The commission did not make a finding showing a fixation of disability. It passed on to the employer the medical committee's conclusions with the recommendation that the company pay up to that compensation. The company had the option to follow that recommendation or ask that the loss of bodily function be finally fixed.

When the commission makes or denies an award upon a hearing, that finding will stand as a matter adjudicated as to the facts as they then existed whether or not they may have all been presented. Even that which could have been presented but which was not is precluded. Where there are conditions which were not known and which could have revealed themselves only afterward, a new hearing may be had on the ground of a change of condition. A change of condition may occur when there is an actual change or where the condition is different than what it was thought to be and only could have been revealed by subsequent events. This is because only the actual unfolding of events could reveal a condition different than that which the commission assumed to operate on. The condition of an applicant passed on by the commission is one which at the hearing was revealed or which, with reasonable investigation, could have been revealed and not one which though existing, could not with reasonable examination have been known. But where the commission has made no award or finding but simply a recommendation, it must be taken as tentative and as leaving the case still open for final adjudication. So, on the first theory, the addition of 40 weeks may be upheld.

It may be upheld on the second theory, that there was actually a changed condition. The recital of some additional facts is here relevant. Between the hearing of December 9, 1935, and June 18, 1936, Hancock had another operation to see if the collarbone or clavicle could be better articulated with the sternum. Since the accident there had been no boney union but only a fibrous one. This resulted in the thorax end of the clavicle floating. It pressed on the thorax at times affecting his breathing. It, of course, prevented heavy lifting or manual labor of the type which Hancock had done or was trained to do. He had been a motorman running a motorcar in the mine. He was able to raise his arm and had movement in front and back, but with discomfort and tiring. His chest room had been lessened.

There had been no diminution of functioning of the lungs, but there was a pressing, especially when they became fully inflated by more complete filling of air. Hancock had been trying to improve his lungs by a certain amount of hill climbing. As stated before, the Medical Advisory Board found a 50 per cent loss of total bodily function on March 24, 1933. And on June 26, 1936, another Medical Board found a total bodily loss of 50 per cent. At this examination counsel for both plaintiff and defendant Hancock were present. Dr. Galligan, who had charge of Hancock since the accident and who had performed several operations to rehabilitate him, including the one between December 9, 1935, and June 18, 1936, testified to a loss of from 50 to 60 percent of total. The additional 40 weeks given by the commission actually amounted to a loss of 70 per cent of the full maximum of 200 weeks. There was no direct evidence of a 70 per cent loss by anyone.

It is contended by plaintiff that there is (a) no evidence of a change of condition, and (b) that there is no evidence of a loss of 70 per cent. But the commission had seen Hancock at the meeting of the medical committee held on March 24, 1933; it had seen him at the hearing of December 9, 1935, and at the hearing of June 18, 1936, and at the time he was examined by the new medical committee on June 26, 1936. True, there is nothing in the record where the members of the commission recorded their observation so that we could tell whether there was evidence by ocular preferment upon which they could make a finding. And that would be necessary if the commission concluded on their own observations. Spencer v. Industrial Comm., 87 Utah 336, 40 P.2d 188.

In some cases a degeneration might be so marked between two dates that any person could note it. But if this is to be the basis of the commission's finding, the record must record it--not just the times of observation as the Attorney General seems to argue in his attempted differentiation of the Spencer Case from this one, but the actual conditions as the eye of the commission sees them must be put in the record so that this condition as noted by the Commission may be by us compared to the previous condition as shown by the record. But cases do not always permit of discernment of a change of condition by observation. It must usually depend on evidence and ofttimes on expert testimony. In this case we have evidence. True the evidence of the doctor is that Hancock's condition was fixed on March 24, 1933, and that after the last operation, it was the same. But we have held that the commission is not required to follow the expert testimony. Hancock himself testified that his condition had gotten worse. He testified as follows:

"Q. Mr. Hancock, when you received the last compensation, since then have you noticed a definite change in your physical condition? A. Yes, sir.

"Q. In what way, any particular part of your body? A. Yes, my collar bone and joint in front. * * * In my chest, it seems on the left side, and also my back. * * *

"Q. Mr. Hancock, in regard to the collar bone, at the time you were released from the hospital had the bone united? A. * * * it has gradually been getting a little looser."

He further testified that for about eighteen months or more he had been compelled to sleep with his left arm some what behind him in order to prevent "folding," that is, the collarbone from pressing in on his thorax which made breathing more difficult.

"Q. In regard to your back, do you notice any difficulty in your back? A. Yes, it is like--it seems like I was getting down lower all the time. It try to sit up like this and it is impossible, and fall over that way and it causes a lot of pain.

"Q. Do you notice any physical changes? A. Yes. Any sort of labor, or walking or climbing up a hill where you have to balance yourself, It causes pain.

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