Strouse v. Hercules Mining Co.

• Decision Date: 02 July 1931
• Docket Number: 5609
• Citation: 1 P.2d 203,51 Idaho 7
• Parties: PEARL STROUSE, Respondent, v. HERCULES MINING COMPANY, a Corporation, Employer, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, Surety, Appellants
• Court: Idaho Supreme Court

1 P.2d 203

51 Idaho 7

PEARL STROUSE, Respondent, v. HERCULES MINING COMPANY, a Corporation, Employer, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, Surety, Appellants

No. 5609

Supreme Court of Idaho

July 2, 1931

WORKMEN'S COMPENSATION LAW-COMPENSABLE INJURY-BURDEN OF PROOF-INDUSTRIAL ACCIDENT BOARD-FINDINGS OF FACT-CONCLUSIVENESS-AGGRAVATION OF PRE-EXISTING DISEASE.

1. Compensation claimant has burden of establishing probable cause of disability (C. S., secs. 6217, 6270).

2. Evidence supported board's findings that compensation claimant's disability was not due to accident, either when lifting timbers or operating jack-hammer in breaking up concrete, but was due to pre-existing spinal curvature (C S., sec. 6217).

3. Industrial Accident Board's findings supported by substantial evidence cannot be disturbed by courts (C. S sec. 6270).

4. Regardless of pre-existing conditions, if disability is precipitated by accident arising out of employment, and if disability probably would not have arisen except for accident, statute contemplates full compensation (C. S., sec 6217).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Pearl Strouse filed a claim for compensation for disability incurred during his employment with the Hercules Mining Company, with the Industrial Accident Board. From an order denying him compensation he appealed to the District Court where he secured a judgment awarding him compensation. Judgment reversed and cause remanded.

Reversed and remanded, with instructions. Costs to appellants.

H. J. Hull, for Appellants.

The findings of fact of the Industrial Accident Board, when supported by competent evidence, are conclusive on appeal to the district court, the jurisdiction of that court being limited to a review of the questions of law. (C. S., sec. 6270; McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 P. 1087; Hillhouse v. Bonner County, 46 Idaho 730, 271 P. 459; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; Jenkins v. Boise-Payette Lbr. Co., 49 Idaho 24, 287 P. 202; Delich v. Lafferty Shingle Mill Co., 49 Idaho 552, 290 P. 204.)

In proceedings under the Workmen's Compensation Act, the burden of establishing each fact necessary to a legal award rests upon the applicant. (Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992.)

Where disability results partly from a compensable injury and partly from a pre-existing progressive disease or condition, the Industrial Accident Board and/or the district court must limit the award to the proportion of the disability attributable to the accident. (Hanson v. Independent School Dist. No. 11, 50 Idaho 81, 294 P. 513.)

Charles E. Horning, for Respondent.

It is a question of law whether the findings of fact, conclusions of law and award of the Industrial Accident Board are supported by competent and substantial evidence. If they are not they should be set aside on appeal and findings should be made and judgment should be entered in conformity with the evidence. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Johnston v. White Lumber Co., 37 Idaho 617, 217 P. 979; Taylor v. Blackwell Lumber Co., 37 Idaho 707, 218 P. 356; Larson v. Blackwell Lumber Co., 48 Idaho 136, 279 P. 1087; Hillhouse v. Bonner County, 46 Idaho 730, 271 P. 459; Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; Jenkins v. Boise-Payette Lumber Co., 49 Idaho 24, 287 P. 202.)

Absolute proof is not required as to the exact time of the injury or, in fact, as to the exact cause of the injury. (McNeil v. Panhandle Lumber Co., supra; Larson v. Blackwell Lumber Co., supra; Fidelity & Casualty Co. v. Industrial Acc. Com., 177 Cal. 614, 171 P. 429, L. R. A. 1918F, 856.)

If a workman is injured by an accident arising out of and in the course of his employment he is entitled to compensation notwithstanding the fact that he may not have been physically perfect at the time of the accident, the pre-existence of a physical defect being entirely immaterial. (Gilchrist Lumber Co. v. Rengler, 109 Neb. 246, 190 N.W. 578, 28 A. L. R. 200; Patrick v. J. B. Ham Co., 119 Me. 510, 111 A. 912, 13 A. L. R. 427; Madden's Case, 222 Mass. 487, 111 N.E. 379, L. R. A. 1916D, 1000; Branconnier's Case (In re Travelers Ins. Co.), 223 Mass. 273, 111 N.E. 792; McNeil v. Panhandle Lumber Co., supra; Larson v. Blackwell Lumber Co., supra; Hanson v. Independent School Dist., 50 Idaho 81, 294 P. 513.)

LEE, C. J. Budge, Givens, Varian and McNaughton, JJ., concur.

OPINION

LEE, C. J.

Claimant and respondent, Pearl Strouse, was in the employ of defendant and appellant, Hercules Mining Company, in the month of September, 1928. He was at this time thirty-five years of age and had been doing heavy manual labor ever since attaining manhood. He was known to have a scoliosis, or curvature of the spine, but had never been troubled by it. On or about September 20th, he was assigned to a job of helping carry timers used in building crib work for a motor, and shortly after this was put to operating a jack-hammer. On November 3d he was forced to discontinue work permanently because of the weak condition of his back. He filed his application for compensation with the Industrial Accident Board.

Although in his application he recited that a claim in writing describing the cause and nature of the injury complained of had been filed with the board on November 19, 1928, nothing of the sort appears in the record; and we are restricted to an examination of the evidence to discover just what his representations were.

A hearing was had before Commissioner Suppiger on March 12, 1929, resulting in a denial of compensation. On review, the entire board sustained the commissioner. The district court, on appeal, reversed the board, found that respondent's disability was wholly the result of a compensable injury by accident, and entered judgment awarding compensation for total disability: hence this joint appeal by both employer and surety company.

The two controlling findings of the board overruled and set aside by the district court were Nos. IV and V, as follows:

"IV. That about September 20, 1928, a new motor was being put into said mill and claimant was helping to put in timbers to build crib work; that the timbers so being put in were pine and tamarack wood in size 8"x8"x20 feet long, and weighing from 400 to 700 pounds each; that claimant and other laborers had to carry these timbers by means of tongs, and sometimes lift them higher than their heads; that usually three or four men carried these timbers but sometimes there was room for only two men to work; that at times more than four men lifted on said timbers; that the first day claimant helped to carry these timbers he felt no ill effects from the work, but the next day his back was very sore by evening, but on the following day he returned to work and was put to running a jack-hammer to break up the concrete base of a motor; that claimant worked all of that day and by night his back was quite sore again; that he returned to the same work the following day, but on account of the soreness in his back had to quit during the morning shift; that he did not return to work the day after he laid off, but on the day following that he returned to work, doing no heavy lifting and not using the jack-hammer, and continued his work until about October 21, 1928, when he again commenced to use the jack-hammer on a concrete base; that he continued to use the jack-hammer for about five days when his back became so sore and lame that he had to cease work for a couple of days; that after a couple of days he returned to work for the Hercules Mining Company doing light work at repair jobs, and his back became steadily worse until November 3, 1928, when, on account of the condition of his back he became totally disabled for work and has since then been and now is totally disabled for work on account of the condition of his back.

"V. That no accident happened to claimant while in the employ of the defendant, Hercules Mining Company, and that the disability for work he now has, and has had since November 3, 1928, is not the result of a personal injury by accident arising out of and in the course of his employment with said mining company, but is the result of his spine gradually giving away under the work he has been doing, due to the scoliosis which he has had since childhood, and which has been known by him to exist for the past eight years."

The only material difference between these findings of the board and those of the district court is that the latter traced respondent's disability to a strain suffered by him while lifting heavy timbers September 20, 1928, which strain was so severe in its effect that he was unable to work for the following two days, an injury by accident arising out of and in the course of his employment, whereas, the board found that he felt no ill effects from his work on the 20th, was able to do and did do work of the same nature the following day, and operated a jack-hammer the day thereafter, being then forced to "lay-off" a couple of shifts.

In arriving at its findings, the board had before it the following evidence: relative to the heavy lifting, respondent testified:

"I first noticed my back hurting real bad when I was lifting and I noticed a sharp pain in my back when I was lifting and I had to set it down, and it kind of left me, and I got back to work...