Skelly v. Sunshine Mining Co.

• Decision Date: 16 January 1941
• Docket Number: 6860
• Citation: 109 P.2d 622,62 Idaho 192
• Parties: FRANCIS J. SKELLY, Appellant, v. SUNSHINE MINING COMPANY, a Corporation, Employer and Surety, Respondent
• Court: Idaho Supreme Court

109 P.2d 622

62 Idaho 192

FRANCIS J. SKELLY, Appellant, v. SUNSHINE MINING COMPANY, a Corporation, Employer and Surety, Respondent

No. 6860

Supreme Court of Idaho

January 16, 1941

WORKMEN'S COMPENSATION - AWARD - COMPENSATION AGREEMENT - MODIFICATION - CHANGE IN CONDITION - COMPENSABLE INJURY - TRAUMATIC NEUROSIS - WITNESSES - DOCTOR JOINTLY EMPLOYED-PRIVILEGE RULE.

1. A compensation agreement between claimant, employer, and surety approved by the Industrial Accident Board has the same effect as an award of the board, subject to review on appeal and in absence of fraud, is conclusive as between the parties except that, on application therefor on the ground of change in condition, the board may make an award ending diminishing, or increasing the compensation previously agreed upon or awarded.

2. The burden of proof is on the party moving for a change or modification of a compensation award.

3. The mental disorder termed "traumatic neurosis" although arising from a mental rather than a physical condition, if the result of a personal injury by accident arising out of and in the course of employment, is compensable.

4. Traumatic neurosis resulting from injury by accident arising out of and in course of employment, but occurring after the agreement for or award of compensation, amounts to such "change in condition" as will warrant modification of compensation agreement.

5. A claimant, after making compensation agreement, could not be deprived of compensation for increased disability consisting of traumatic neurosis resulting from accidental injury on ground that if claimant had no marital, financial or other worries and had entirely refrained from use of alcohol tobacco and work underground, neurotic condition might not have existed, since intervening and aggravating causes by which disability is increased do not bar recovery; claimant not being at fault.

6. Where there was no evidence to support Industrial Accident Board's finding that there had been no change in conditions and that claimant was not entitled to a modification of compensation agreement, and evidence was conclusive that after making compensation agreement claimant suffered from traumatic neurosis traceable to accident and injury in employment, dismissal of petition for modification of compensation agreement was error.

7. Testimony of contract doctors employed jointly by employer and its employees, as to employee's physical condition in compensation proceeding, was not "privileged" under statute, since as to doctors jointly employed by employer and employees the privilege rule had no application to a proceeding before the Industrial Accident Board. (I. C. A., sec. 16-203, subd. 4; secs. 43-902, 43-1108, 43-1201, 43-1405.)

APPEAL from order of the Industrial Accident Board.

Proceedings under Workmen's Compensation Act. Order of board denying modification of compensation agreement. Reversed.

Reversed and remanded.

Eugene F. McCann and F. C. Keane, for Appellant.

Right to modification of award for change of condition is absolute. (Sec. 43-1407, I. C. A.; Hustead v. H. E. Brown Timber Co., 52 Idaho 590, 17 P.2d 927.)

Traumatic neurosis when the result of an injury is compensable. (Jenkins v. Boise Payette Lumber Co., 49 Idaho 24, 287 P. 202.)

Intervening and aggravating causes by which disability is increased are no bar to recovery, claimant not being at fault. (Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719; Smith v. Essex County Park Com., 15 N. J. Misc. 227, 190 A. 45.)

A physician is prohibited from testifying in a proceeding as to any information acquired in attending his patient. (Sec. 16-203, I. C. A., subd. 4.)

H. J. Hull, for Respondent.

An agreement between employer and employee approved by the Industrial Accident Board fixing the degree of permanent partial disability has the same effect as an award and, subject to review on appeal, is final and conclusive between the parties. (Boshers v. Payne, 58 Idaho 109, 70 P.2d 391; Reagan v. Baxter Foundry & Machine Works, 53 Idaho 722, 27 P.2d 62; Zapantis v. Central Idaho Min. & Mill. Co., 61 Idaho 660, 106 P.2d 113.)

Under sec. 43-1407, I. C. A., a modification of an award or agreement can only be had on the ground of a change in condition or fraud. (Zapantis v. Central Idaho Min. & Mill. Co., supra.)

A change of condition or fraud must be both pled and proved. (Rodius v. Coeur d'Alene Mill Co., 46 Idaho 692, 271 P. 1.)

BUDGE, C. J. Givens, Morgan and Holden, JJ., concur. AILSHIE, J., Dissenting.

OPINION

BUDGE, C. J.

March 26, 1938, claimant, Francis J. Skelly, received a personal injury caused by an accident arising out of and in the course of his employment by respondent, Sunshine Mining Company. Appellant was struck on the head by a piece of timber, a cedar lagging, falling 35 feet down an open chute, and was rendered unconscious and himself fell 65 feet down a man-way, suffering concussion, laceration of the scalp from ear to ear, broken scapula, and bruises and contusions. May 6, 1939, appellant and respondent entered into a compensation agreement, approved by the Industrial Accident Board May 17, 1939, providing for compensation as follows:

"That according to physician's Reports and Agreement between the parties hereto, said claimant sustained, as a result of said accident, temporary total disability and permanent partial disability as hereinafter set forth; 12/14/38 to 1/25/39 Loss of time from 3/26/38 to 5/3/38; and 3/3/39 to 5/4/39 Being weeks and days, for which compensation is payable for a period of 19 weeks and 5 days @ $ 12.00 per week--$ 240.00 PERMANENT PARTIAL DISABILITY CONSISTING OF: Disability equal to 25% of the loss of the leg at the hip. 25% of 180 weeks equals 45 weeks 99% of 45 weeks @ $ 12.00 equals $ 534.50."

April 9, 1940, appellant filed a petition for modification of the compensation agreement alleging a change in conditions as follows:

"That after the date of the above-mentioned agreement the physical condition of your petitioner changed and your petitioner suffered more and more severe headaches and the condition of the right arm of your petitioner became worse in that it became so painful that he was unable to lift or work with said right arm and shoulder, and the physical condition of your petitioner is now such that he has a permanent total disability because of the above mentioned injuries to his head and shoulder."

After a hearing the board found there had been no change in conditions resulting from the accident and injury to claimant since the 6th day of May, 1939, the time the compensation agreement was entered into, and ordered that appellant's petition for modification be denied and dismissed, from which order this appeal is prosecuted.

Assignments of error 1 and 2 urge that the board erred in making its finding that appellant "has suffered intermittently with severe headaches, and to about the same extent he so suffered at the time he entered into the above mentioned agreement", for the reason the evidence is conclusive that the headaches had become much more frequent and much more severe, and there is no evidence in the record supporting the finding of the board; and in making its ruling of law that appellant was not entitled to a modification based upon such alleged erroneous finding.

It is well settled that a compensation agreement between claimant, employer and surety, approved by the Industrial Accident Board, has the same effect as an award of the board, subject to review on appeal, in the absence of fraud is final and conclusive as between the parties, except, that on application therefor, "on the ground of a change in conditions" the board may make an award "ending, diminishing or increasing the compensation previously agreed upon or awarded." (Zapantis v. Central Idaho Min. & Mill. Co., 61 Idaho 660, 106 P.2d 113, and cases therein cited.) The burden of proof is on the party moving for a change or modification of the compensation award. (Boshers v. Payne, 58 Idaho 109, 70 P.2d 391.)

In support of his petition appellant testified that about two months after the agreement his condition changed; that the change manifested itself in increased headaches and dizziness. That his headaches were frequent at night, lasting all night if he could not get them stopped and go to sleep and that he got no sleep at all from three to four and sometimes five nights a week. In this he was corroborated by his wife who testified he complained of headaches several times a week at night, that he would wake her up during the night and complain of headaches and she would put cold cloths on his head and give him aspirin and that the headaches became more frequent and his condition more pronounced as time went on. Appellant further testified he believed his shoulder was getting worse, that driving a truck, shoveling or running a wheelbarrow, any lifting at all made his shoulder hurt worse. The board's finding number eight is as follows:

"That claimant's condition has remained about the same since November of 1939, and that there has been no change in conditions resulting from the accident and injury to claimant since the 6th day of May, 1939, the time he entered into the said compensation agreement as above stated."

It may be said that it appears from the record that there has been no perceptible change in appellant's purely physical condition. At least there is evidence by the medical witnesses that such appeared from their physical examination of appellant. However, the fact that appellant did have the headaches described by him, that they were more frequent, and that his condition as a result was becoming more and more pronounced, is not contradicted but on the other hand is conceded by the medical witnesses. Appellant...