Stroscheim v. Clyde Shay

• Decision Date: 18 December 1941
• Docket Number: 6954
• Citation: 120 P.2d 267,63 Idaho 360
• Parties: MIKE STROSCHEIM, Appellant, v. CLYDE SHAY and IDAHO COMPENSATION COMPANY, Respondents
• Court: Idaho Supreme Court

120 P.2d 267

63 Idaho 360

MIKE STROSCHEIM, Appellant, v. CLYDE SHAY and IDAHO COMPENSATION COMPANY, Respondents

No. 6954

Supreme Court of Idaho

December 18, 1941

WORKMEN'S COMPENSATION-FINDINGS OF BOARD, SUFFICIENCY OF-EVIDENCE-EXPERT TESTIMONY-RIGHT TO COMPENSATION-BURDEN OF PROOF.

1. Industrial accident board's finding that compensation claimant on a certain date commenced working for a named company and "had worked there ever since," earning specified daily wages, although ambiguous, would not be disturbed by Supreme Court nor cause remanded with directions to the board to find specifically in conformity with the fact that claimant after injury had not returned to his usual occupation and work and that he only worked about one-half time. (I. C. A. sec.

43-901 et seq.)

2. The rule that proceedings under the Workmen's Compensation Law are not to be governed by strict procedure, but are to be liberally construed, applies to industrial accident board's findings of fact and the sufficiency thereof. (I C. A. sec. 43-901 et seq.)

3. The weight to be given expert testimony depends, among other things, on the expert's means of knowledge, his competency, extent of experience or study, whether witness is biased, the facts upon which his opinion is based, and the integrity of the witness.

4. In workmen's compensation proceeding, the weight to be given the testimony of physician, who observed and treated claimant over a period of several months regarding the permanency of claimant's disability, even assuming that such expert testimony was merely advisory, was for the industrial accident board. (I. C. A. sec. 43-901 et seq.)

5. There is no distinction between expert testimony and evidence of other character as regards the weight to be given it in a particular case.

6. The testimony of physician, who observed and treated compensation claimant over a period of several months, regarding the permanency of claimant's disability and his opinion that claimant was able to work at time of hearing, constituted "competent and substantial evidence," sustaining industrial accident board's award allowing compensation for total temporary disability but denying compensation for permanent disability. (I. C. A. sec. 43-901 et seq.)

7. Supreme Court would not disturb industrial accident board's findings of fact because of a conflict in the testimony of medical experts as to compensation claimant's physical condition at the time of hearing. (I C. A. sec. 43-901 et seq.)

8. Industrial accident board's findings of fact, supported by competent, substantial evidence, are conclusive upon appeal to Supreme Court; such court's jurisdiction being limited to review of question of law only. (I. C. A. sec 43-901 et seq.)

9. The burden of proof rests upon compensation claimant, seeking compensation for permanent disability, to establish by preponderance of the evidence his right to recover such compensation, and, where he failed to discharge such burden award allowing compensation for total temporary disability but denying compensation for permanent disability was affirmed. (I. C. A. sec. 43-901 et seq.)

APPEAL from award of Industrial Accident Board. Affirmed.

Award of the Board affirmed. Costs to respondents.

Paul C. Keeton and William D. Keeton, for Appellant.

It is submitted that the question involved in this case is a question of the economic disability of the claimant to return to his usual work in a normal way. The test which has been applied by accident boards and commissions and Supreme Courts in arriving at the amount of permanent disability of an injured workman is that it shall be calculated in relation to the injured workman's inability, in an economic way, to do the work that he is usually engaged in. The Supreme Court of Idaho, in the case of Watkins, vs. Cavanagh, 107 P. 2-155 in reversing a decision of the Industrial Accident Board denying permanent disability, held that in a compensation hearing, testimony of medical experts as to the extent of the disability of a compensation claimant is purely advisory. The Supreme Court has also decided this question in the following cases: Nistad vs. Winton Lumber Company, 99 P. 2-52, and Evans v. Cavanagh, 58 Idaho 324; 73 P. 2-83.

Spencer Nelson and Ralph S. Nelson, for Respondents.

The Board did not err in making Finding of Fact VI, as there was sufficient evidence upon which the Board could base such a finding and the Board had the undisputed right to make and deduct such reasonable inferences from the evidence as it saw fit to do. Finding of Fact VI complained of in Specification of Error Number 2 is:

"That as a result of the injury by accident received on the said 6th day of August, 1940, claimant was totally temporarily disabled for work from and after the 6th day of August, 1940, to and including the 19th day of May, 1941; that on said last mentioned date all claimant's disability for work on account of said injury ceased and he now has no permanent injury as a result of said injury by accident." ( Nistad v. Winton Lumber Company, 59 Idaho 533; 85 P.2d 236; Evans v. Cavanagh, 58 Idaho 324; 73 P.2d 83.)

BUDGE, C.J. Givens and Ailshie, JJ., concur, HOLDEN, J., Mr. Justice Morgan, concurring specially.

OPINION

BUDGE, C.J.

Appellant sustained an injury by accident arising out of and in the course of his employment. Briefly stated the facts are substantially as follows.

On August 6, 1940, appellant, working for respondent Clyde Shay whose surety was the Idaho Compensation Company, while engaged in sawing a log, sustained an injury by accident. The log broke, striking appellant's left foot and causing a small fracture of the astragalus bone. As a result of said injury appellant was treated at St. Maries Hospital under a hospital contract. A claim for compensation, dated August 28, 1940, was served upon respondents on September 3, 1940. No question of medical fees is here involved. Compensation was paid by respondents to appellant at the rate of $ 8.65 per week from August 6, 1940, the date of the injury, until December 18, 1940, when a controversy arose as to the average weekly wages earned by appellant during the year previous to the accident and injury. A petition and an amended petition for a hearing before the Industrial Accident Board were filed on March 7 and 27, 1941, respectively. In said amended petition, it is alleged among other things:

"and claimant has further a permanent injury as follows: a trophic osteitis about the tarsal bones, and arteriosclerosis in the ankle joint and arthritis inhibiting the use and the motion of the ankle joint, causing extensive pain; that said permanent disability is equivalent to twenty-five percent of the loss of the foot above the ankle."

The matter was heard before the Industrial Accident Board on June 20, 1941. The Board made findings of fact, rulings of law, and an award in appellant's favor, allowing compensation for total temporary disability to May 20, 1941, but denied permanent disability. From which award this appeal is taken.

Appellant specifies and relies upon the following errors, namely, that the Board erred in making the following findings of fact:

"That subsequent to the 15th day of January, 1941, claimant had some pain in his said foot and he had some difficulty in walking over uneven ground; that he then visited another physician in St. Maries who prescribed an arch support for his foot which claimant wore; that commencing with the 20th day of May, 1941, claimant commenced working for the Cedar Pole Company and has worked there ever since, earning daily wages of $ 4.00 to $ 4.50; the claimant still complains of his foot bothering him when walking over rough ground and that occasionally swelling appears." (Finding No. 5.)

"That as a result of the injury by accident received on the said 6th day of August, 1940, claimant was totally temporarily disabled for work from and after the 6th day of August, 1940, to and including the 19th day of May, 1941; that on said last mentioned date all claimant's disability for work on account of said injury ceased and he now has no permanent injury as a result of said injury by accident." (Finding No. 6.)

Furthermore:

"The Industrial Accident Board erred in not applying the law to the undisputed facts showing economic and industrial disability of claimant and making an award of a percentage of permanent disability, equivalent to the loss of the foot at the ankle as provided for in "other cases" part of I. C. A. 43-1113."

Appellant contends that from the language used by the Board in finding No. 5, it would appear that appellant returned to his usual occupation and work as he had done in the past prior to the injury; that said finding is not supported in this, that the evidence shows that due to said injury and as a result thereof, appellant was not able to work more than three or three and a half days a week; that the Board failed to find, as indisputably shown by the record, that appellant due to said accident and injury, only worked about one-half time and not continuously.

While it is true that appellant did not work every day from May 20 to June 20, 1941, it is clear from the record that appellant commenced to work for the Cedar Pole Company on May 20, 1941, and continued to work for said Company, and no other, up to June 20, 1941, earning a daily wage of from $ 4.00 to $ 4.50 on the days he worked. Therefore, appellant actually did work "ever since" May 20, 1941, but did not work every day.

Although the language above used is somewhat ambiguous, we are not disposed to disturb the Board's finding or to remand the case with directions to the Board to find specifically "that claimant only worked about one-half time" and did not return to his usual...