Spencer v. Industrial Commission

• Decision Date: 10 January 1935
• Docket Number: 5503
• Citation: 87 Utah 336,40 P.2d 188
• Court: Utah Supreme Court
• Parties: SPENCER v. INDUSTRIAL COMMISSION et al

40 P.2d 188

87 Utah 336

SPENCER v. INDUSTRIAL COMMISSION et al

No. 5503

Supreme Court of Utah

January 10, 1935

For opinion on rehearing, see 87 U. 358, 48 P.2d 1120.

Original proceeding by Glen Spencer against the Industrial Commission of Utah, State Road Commission, and the State Insurance Fund to review an order of the Industrial Commission denying compensation.

ORDER ANNULLED AND CASE REMANDED.

P. G Ellis, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and Paul H. Ray, of Salt Lake City, for defendants.

MOFFAT Justice. STRAUP, C. J., and ELIAS HANSEN and EPHRAIM HANSON JJ., concur. FOLLAND, Justice, dissenting.

OPINION

MOFFAT, Justice.

This is the second time this case has been before this court for review of an order of the Industrial Commission of Utah denying compensation to the plaintiff, Glen Spencer, for an alleged injury while in the employ of the state road commission. The former opinion of this court is reported in 81 Utah 511, 20 P.2d 618, and was decided April 5, 1933, or one year after the time of the alleged injury.

Under date of April 19, 1932, the applicant, Glen Spencer, filed an application for compensation under the provisions of the Workmen's Compensation Act. (Rev. St. 1933, 42-1-1 et seq.). On May 19, 1933, and after the former decision of this court, the applicant filed an amended or supplemental petition. Other than matters of detail or elaboration, in so far as anything new or necessary to call the attention of the Industrial Commission to the injury or invoke its jurisdiction, there is no substantial difference in the petitions. Considerable attention is devoted to an attempt either to prove, disprove, or render uncertain the exact date upon which the applicant received the alleged injury. We may advert to that matter later.

In substance, the applicant, Glen Spencer, alleged that, while employed by the state road commission at or near Farmington in Davis county during the week ending April 9, 1932 (the exact day being uncertain), he was injured by an accident arising out of or in the course of his employment.

"While applicant was attempting to dump a four-horse loaded scraper, a duty of said employment, the said scraper caught on a submerged root or other object in the ground, which checked or arrested the forward motion of said scraper, preventing the dumping thereof, and caused the same to fall or come backward so that the Johnson bar thereof fell or struck heavily upon the applicant's shoulder, forcing or pushing him downward into a stooping or crouching position. Thereby he sustained an injury to his back, hip and sacro-iliac joint, and he was rendered thereby incapable of performing any physical labor or duties of his employment, and unable to earn any wages, and that he was thereby permanently and totally incapacitated and prevented from obtaining employment and from performing labor and earning a livelihood."

After several hearings upon the matter before the Industrial Commission and after the former decision and a further hearing, the matter is again before the court upon a writ of review. At the last hearing and after all the evidence sought to be presented had been heard by the Industrial Commission, the following findings and decision were made by the commission:

"I. The applicant, Glen Spencer, claims that on or about the 5th day of April, 1932, while in the course of his employment as an employee of the State Road Commission of the State of Utah, he suffered an accidental injury resulting in a sprain of his right sacro-iliac joint, with accompanying loss of bodily function and disability, which, bodily function and disability said Glen Spencer claims to be total and permanent.

"II. The Commission finds that on or about the 5th day of February, 1927, while in the employ of Davis-Howe & Company a corporation, said Glen Spencer suffered an accidental injury arising out of or in the course of his employment, resulting in loss of bodily function and disability; that at said time the State Insurance Fund carried the Compensation Insurance for Davis-Howe & Company and assumed liability for compensation to the said Glen Spencer for the said accident; that the State Insurance Fund paid Glen Spencer compensation for total temporary disability on account of said injury in the sum of $ 578.74, and also paid hospital and medical expenses on account of said injury in the sum of $ 575.68; that thereafter Glen Spencer and the State Insurance Fund entered in an agreement of compromise and settlement of said claim whereby it was agreed that Glen Spencer had suffered a permanent partial loss of bodily function amounting to 51 1/2% of his bodily function, and for such loss Glen Spencer accepted 103 weeks' compensation, amounting to the sum of $ 1,508.53. This amount was in addition to the compensation paid on account of temporary total disability.

"III. The Commission further finds that after said accident and injury, and after settlement and compromise of said claim, Glen Spencer returned to his employment with Davis-Howe & Company where he again suffered an accident arising out of or in the course of his employment on the 16th day of January, 1930; that the accident to said Spencer on the 16th day of January, 1930, consisted of a sprain of the right sacro-iliac joint; that on said 16th day of January, 1930, the State Insurance Fund carried the Compensation insurance for Davis-Howe & Company, and again assumed liability for compensation due to Spencer on account of said injury; that the State Insurance Fund paid compensation to said Spencer for temporary total disability in the sum of $ 1,223.65; and paid on account of hospital and medical attention resulting from said injury the sum of $ 849.55. Therefore the said Glen Spencer claimed that he had suffered a partial permanent loss of bodily function as a result of said injury of January 16th, 1930, and he and the State Insurance Fund entered into a compromise and settlement of said claim as a result of which the State Insurance Fund paid, and the said Glen Spencer received and accepted the sum of $ 746.92, or 50 weeks' compensation, representing an agreed permanent partial loss of bodily function of 25%.

"IV. The Commission finds as a result of said injuries of February 5th, 1927 and January 16th, 1930, Glen Spencer has claimed and been paid for a permanent partial loss of bodily function amounting to 76 1/2% of his total bodily function.

"V. The Commission further finds that said Glen Spencer went to work for the State Road Commission on April 4th, 1932. At that time Spencer had an impaired right sacro-iliac joint, such impairment being the same for which he had theretofore been fully compensated. Said impairment, while still present to some extent when Spencer went to work for the Road Commission, did not greatly interfere with Spencer in walking and moving about in his ordinary occupation of looking after his small farm, but the Commission finds that upon taking employment with the Road Commission he continued working at heavy manual labor from the 4th day of April, 1932, until the 9th day of April, 1932; that as he continued to subject himself to the heavy exertion of such work the weakness in his right sacro-iliac joint gradually began to manifest itself and as the result of the cumulative effect of exertions made from day to day between April 4, 1932 and April 9th, 1932 and not otherwise, the weakness in his sacro-iliac joint recurred to the extent that he was no longer able to continue his work.

"Spencer claims that he suffered a distinct accident while in the employ of the Road Commission. In his sworn application for compensation Spencer asserted he was injured by 'being violently jerked, wrenched and thrown by the Johnson bar' etc., while on the witness stand he said he was injured, not by being jerked or thrown, but by being forced by the weight of the bar into a crouching position. In this connection the Commission finds that Spencer did encounter some difficulty in unloading a particular scraper on April 5th, 1932 at which time he was required to ask for help from some fellow workmen; but the Commission finds that Spencer continued at the same heavy work the balance of that day and for a day or two after that when his work was changed to that of loading scrapers.

"The Commission finds that if Spencer had suffered the injury he claims to have suffered, he could not have pursued his work as he did and he would not have delayed his visit to the doctor until the night of April 8th, 1932.

"The Commission finds that Spencer did not suffer any accident or single occurrence which either produced a new injury to his sacroiliac joint or a recurrence of an old injury.

"The Commission finds that whereas Spencer has heretofore been fully compensated for permanent loss of bodily function amounting to 76 1/2% of his total bodily function, he was not, at the time of the hearing of this case, suffering from any loss of bodily function, permanent or otherwise, in excess of 25%. He has already been paid, upon the order of this Commission, for 25% loss of bodily function for specific injury to his right sacro-iliac joint and inasmuch as his loss of function at present is related to that joint, and inasmuch as the Commission finds that his present loss of function does not exceed 25% from all causes, it is found that Spencer is not now suffering any loss of function or disability for which he has not already been fully compensated.

"VI. The Commission further finds that the opinion of the medical experts as to applicant's condition is all based upon subjective symptoms.

"VII. The Commission has had frequent occasion to see and observe the applicant and finds that such disability as applicant now suffers is...