Stralovich v. Sunshine Mining Co.

• Decision Date: 14 December 1948
• Docket Number: 7436
• Citation: 68 Idaho 524,201 P.2d 106
• Parties: STRALOVICH v. SUNSHINE MINING CO
• Court: Idaho Supreme Court

201 P.2d 106

68 Idaho 524

STRALOVICH v. SUNSHINE MINING CO

No. 7436

Supreme Court of Idaho

December 14, 1948

Appeal from Industrial Accident Board.

Affirmed.

E. B Smith and Walter M. Oros, both of Boise, for appellant.

Findings of the Industrial Accident Board which are not supported by competent, substantial evidence, are not binding or conclusive upon the Supreme Court, and an order based thereon denying full compensation will be reversed. Paull v Preston Theatres Corp., 63 Idaho 594, 124 P.2d 562; Dobbs v. Bureau of Highways, 63 Idaho 290, 120 P.2d 263; Howard v. Texas Owyhee Mining & Dev. Co., 62 Idaho 707, 115 P.2d 749; Young v. Herrington, 61 Idaho 183, 99 P.2d 441; Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000; Beaver v Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A.L.R. 1399; In re Black, 58 Idaho 803, 80 P.2d 24; Pierstorff v. Gray's Auto Shop, 58 Idaho 438, 74 P.2d 171; In re Soran, 57 Idaho 483, 67 P.2d 906.

Between the antipodes of silicosis as an occupational disease and its accidental climax is a zone wherein, depending on the particular circumstances of the case and accidental features, or the absence thereof, afflictions from silicosis and its consequences or complications, may or may not justify full compensation. Dobbs v. Bureau of Highways, 63 Idaho 290, 120 P.2d 263; Foote v. Hecla Mining Co., 62 Idaho 79, 108 P.2d 1030; Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000; Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605.

H. J. Hull, of Wallace, for respondent.

Findings of the Industrial Accident Board denying or limiting compensation, supported by substantial evidence, are controlling on appeal and will not be disturbed. Const. Art. 5, Sec. 9, as amended by the Laws of 1937, P. 498; Zipse v. Schmidt Bros., 1944, 66 Idaho 30, 154 P.2d 171; Cameron v. Bradley Mining Co., 1945, 66 Idaho 409, 160 P.2d 461; Morgan v. Simplot, 1945, 66 Idaho 84, 155 P.2d 917; Strouse v. Hercules Mining Co., 1931, 51 Idaho 7, 1 P.2d 203; Dunnigan v. Shields, 1932, 52 Idaho 195, 12 P.2d 773.

A physician who attends a workman and has the opportunity of observing his symptoms first hand and of making all other diagnostic tests and has personal knowledge of the case is in the best position to form an opinion as to the cause of death, and such physician's opinion is entitled to more weight than that of one who did not so attend the workman. Testimony of facts ascertained by an attending physician, necessary in diagnosis and treatment of the patient, is sufficient evidence of the type and fact of injury and the court will not disturb the finding of the Industrial Accident Board based upon such testimony. Delich v. Lafferty Shingle Mill Co., 1930, 49 Idaho 552, 290 P. 204; Hawkins v. Bonner County, 46 Idaho 739, at page 742, 271 P. 327; Jensen v. Wheeler & England, 1931, 51 Idaho 91, 1 P.2d 624; Arender v. Grant Timber & Mfg. Co., 9 La.App. 132, 119 So. 498; 20 Am.Juris., Evidence, Sec. 1206 at page 1058.

An opinion of an expert witness based upon and supported by his personal observation and knowledge is entitled to greater weight than one based on facts hypothetically stated. De Donato v. Wells, 1931, 328 Mo. 448, 41 S.W.2d 184, 82 A.L.R. 1331. Particularly at page 1337 of A.L.R. report.

In compensation proceedings claimant has burden of establishing the probable cause of disability or injury. Sec. 43-901 et seq. I.C.A. 1932; Sec. 43-2102 I.C.A. 1932; Wade v. Pacific Coast Elevator Co., 64 Idaho 176, 129 P.2d 894; Jensen v. Bohemian Breweries, 64 Idaho 679, 135 P.2d 442; Nelson v. Tesemini Timber Protective Ass'n, 59 Idaho 529, 84 P.2d 566; Rand v. Lafferty Transportation Co., 60 Idaho 507, 92 P.2d 786.

Holden, Justice. Givens, C. J., Hyatt, J., and Taylor and Sutphen, District Judges, concur.

OPINION

Holden, Justice.

Antone Stralovich began working when about fifteen years old; he worked most of his life at underground mining in and around his home in Kellogg, Idaho, and around Butte, Montana. He worked intermittently for the Bunker Hill Mining and Smelting Co. in the Coeur d'Alene Mining District, mostly as a miner, sometimes in the smelter from some time in 1918 to some time in 1934. At times during that period he was employed in other mines in the district. For a few months he was employed at other work, but returned to mining the latter part of the year 1935, working at various mines in the same district. In 1936 he did some underground work for the Anaconda Copper Mining Co. in the vicinity of Butte. Upon returning to his home in Kellogg, he was on W.P.A. for a time. In 1938 he again went to Montana for two or three months, where he worked underground at the Hidden Lake mine. In the latter part of 1939 he again went to work in Montana for the Anaconda, where he continued to work steadily underground until May, 1941. He began working July 8, 1941, for the Sunshine Mining Company, where he continued in steady employment underground until May 12, 1944, when he quit his job and ceased work as a miner.

Stralovich died January 8, 1946, leaving surviving him his widow, Mary Stralovich, and two minor children, Norma Jean and Joe Anthony Stralovich. March 25, 1946, Mary Stralovich, widow of Antone Stralovich, filed a claim individually and for and on behalf of Norma Jean and Joe Anthony Stralovich, minors, with the Industrial Accident Board, for "Compensation under the Workmen's Compensation Law and/or Occupational Disease". Compensation not having been agreed upon the matter was set for hearing and heard March 24, 1947. Following the hearing the matter was submitted on briefs. February 26, 1948, findings of fact and rulings of law were made and filed under the Occupational Disease Compensation Law (S.L. 1939, chap. 161, p. 286) and the following award entered thereon: "Wherefore it is hereby ordered that the defendant [respondent], Sunshine Mining Company, pay to Mary Stralovich for the benefit of herself and her minor children, Norma Jean Stralovich and Joe Anthony Stralovich, compensation death benefits at the rate of $ 12 per week for a period of 187 1/2 weeks, beginning January 8, 1946, or until her death or marriage prior to the expiration of said period, computed as ending August 13, 1949". From that award claimant appealed to this court.

Before the Board, as above pointed out, claimant sought to recover workmen's compensation death benefits under the Workmen's Compensation Law, I.C.A. § 43-901 et seq., or, in the alternative, under the Occupational Disease Compensation Law. And respondent, before the Board, denied Stralovich received either a personal injury or contracted any occupational disease during the period he was employed by respondent, and insisted claimant was not entitled to recover either under the Workmen's Compensation Law or Occupational Disease statute. On this appeal, however, claimant insists "the death of Stralovich was caused by personal injury by accident arising out of and in the course of his employment (Workmen's Compensation Law)," and that the Board erred in finding "that Stralovich died from a combination of miliary tuberculosis and silicosis". And, while respondent insisted before the Board claimant was not entitled to recover either under Workmen's Compensation Law or Occupational Disease statute, as above stated, it now insists said finding of the Board is supported by competent, substantial evidence, and, therefore, the award of the Board should be affirmed. In support of her contention the death of the deceased was caused by personal injury by accident arising out of and in the course of his employment, and consequently, the Board erred in awarding compensation under the occupational disease statute, claimant vigorously contends the evidence is insufficient to support the findings and award of the Board and, therefore, the Board should be reversed. In passing on these contentions, it seems advisable, in the circumstances, to first state the pertinent findings of the Board, followed by the material evidence upon which the Board based its findings.

The Board found "Stralovich died from miliary tuberculosis complicated with silicosis, and that his silicosis was an essential factor in causing his death". It also found "from the whole record herein that miliary tuberculosis and silicosis were coequal factors to the death of Stralovich". And, having so found, the Board summarized as follows:

"There remains for determination the issue whether Stralovich's complicated tuberculosis was 'tuberculosis of the lungs,' as that term is used in Sec. 43-2120, I.C.A. as amended. The claimant essayed to prove that the decedent's tuberculosis had its place of origin in the lungs.

"According to Dr. Miller, in a case of miliary tuberculosis, 'there has to be a starting point.' That starting point is usually 'in and around the lungs.' While it may occur in other parts of the body, such an event is 'not very frequent,' it is 'very unusual.' 'If a man has miliary tnberculosis, in most instances there is a generalized infection and it involves the lungs as well as other tissues.' Asked if miliary tuberculosis can occur without any pulmonary complications and result in death, the doctor replied: 'Possibly, but I would say infrequently.' Further:

"Q. You are not basing your opinion upon any reaction you can see in this particular case? A. No, except that this man (had) silicosis to a marked degree.

"With respect to the origin and development of miliary tuberculosis in the usual case Dr. McCaffery was in general agreement with Dr. Miller. But owing to his inability to find or to demonstrate that the respiratory infection, which was present when he first examined the patient, was a pulmonary tubercular infection, Dr. McCaffery was of the opinion that this was...