Wanke v. Ziebarth Const. Co., 7411

• Decision Date: 03 February 1949
• Docket Number: 7411
• Parties: WANKE v. ZIEBARTH CONST. CO. et al
• Court: Idaho Supreme Court

202 P.2d 384

69 Idaho 64

WANKE v. ZIEBARTH CONST. CO. et al

No. 7411

Supreme Court of Idaho

February 3, 1949

69 Idaho 64 at 73.

Original Opinion of June 24, 1948, Reported at 69 Idaho 64. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Holden, Chief Justice. Givens and Hyatt, JJ., and Taylor and Sutphen, Dist. JJ., concur.

OPINION

Holden, Chief Justice.

On Rehearing.

April 7, 1942, Englebert Wanke sustained a personal injury by accident arising out of and in the course of his employment by respondent Ziebarth Construction Company. On his claim for compensation for the injuries sustained on that date the Industrial Accident Board awarded Wanke $ 1215.30. Thereafter, towit, January 14, 1946, appellant Wanke filed an application for modification of that award on the ground of a change in his condition. February 25, 1946, Wanke's employer and its surety by answer denied Wanke's condition had changed as a result of the accident. Following the hearing of the last above mentioned application, towit, April 10, 1946, the Board awarded appellant Wanke $ 106.92 for increase in his permanent disability, and in addition respondent Construction Company and its surety were required to tender appellant Wanke an operation for inguinal hernia, and in the event such tender was not made, then respondents were required to pay appellant Wanke $ 150 to cover the expense of such an operation, and, further, that by reason of the operation, respondents were also required to pay appellant the sum of $ 12 weekly not exceeding six weeks.

November 6, 1947, five years and seven months after the accident, appellant filed what is called a "Petition for Hearing" in which he alleges: "That claimant now is permanently and totally unable to work and applies for benefits under the law because of change in condition and error of the board in not awarding such benefits during the first [hearing] herein or at any time."

And in which petition it is also alleged appellant "has a permanent injury, disability for work consisting of complete and total inability to work" and in which appellant further alleges he has "incurred expenses in the sum of $ 600.00 for medical attendance, hospital and other services."

At the hearing of the said petition, appellant not being represented by counsel, the Board requested attorney Walter Oros "to act as amicus curiae on his [appellant's] behalf." Before any evidence was adduced respondents moved to dismiss the petition upon the ground, among others, that "More than four years have now elapsed since the date of the injury and claim for any further compensation is now barred by Section 43-1407."

Mr. Oros was then asked if he had anything to say "with respect to the motion just made by the defendants [respondents]", to which came the reply:

"Mr. Oros: I have nothing to say."

Following the making of that statement, the record shows this:

"Mr. Oros: I would like to have the Board rule on the motion so I can make an offer of proof.

"Mr. Oppenheim: Motion granted."

Mr. Oros then made an offer to prove appellant "is now permanently and totally disabled and unable to work and that the Board on its last hearing as of April 10, 1946, and its Findings of Fact and Conclusions of Law was in error in that an award was not entered in sufficient benefit to which he was entitled under the law of this State. That he [Wanke] had a change of condition at that time and that he has a further change in condition at the present time, and he now is completely and totally disabled to work by reason of the said injury. He has paid out some $ 600 for medical and hospital care; that assuming for the sake of argument that disability benefits under the law are barred, still it does not bar him [Wanke] from his claim for $ 600 which he has incurred arising out of and by reason of this accident, it being his position that medical and hospital expenses are not in the category of compensation benefits that would be barred under the four year limitation."

In support of the offer of proof appellant was permitted to testify to the medical expenses incurred and paid out following the last above mentioned award of the Board, at the close of which respondents renewed their motion to strike "on the ground that any claim that the claimant may have is now barred by Section 43-1407, I.C.A., 1932."

"Mr. Oppenheim: Your last motion is granted."

Thereafter, towit, November 21, 1947, the Board made and filed findings of fact and rulings of law and entered thereon the following: "Wherefore, it is hereby ordered that claimant's claim, embodied in his petition of November 6, 1947, be and the same is hereby dismissed."

On appeal from that order claimant Wanke, among other things, challenged the constitutionality of sec. 43-1407, I.C.A., on numerous grounds as appears from the foregoing opinion filed June 24, 1948. Thereafter, to wit, July 12, 1948, claimant Wanke filed a petition for rehearing, which was granted and a rehearing ordered and had at our November 1948 term at Coeur d'Alene. In his petition for rehearing appellant urged the court erred in holding it would not review a question not raised by the pleadings or submitted to the tribunal below, appellant insisting the constitutionality of a statute can be raised for the first time on appeal. And, also, that the court erred in holding "Any defects or imperfections relative to Section 43-1407, I.C.A., as originally enacted in 1917, if any there were, would be cured by the re-enactment thereof as disclosed by the foregoing acts, and in the absence of other authority would be sufficient to negative the contentions of appellant that said section is invalid."

Counsel for the respective parties, as well as Mr. Oros, were requested to brief certain questions, among others: Whether the Industrial Accident Board was vested with power or jurisdiction to decide the constitutionality of any provision of the Workmen's Compensation Law, and if so, how and in what manner should the question be raised before the Board; whether it was necessary to raise the question before the Board in order to preserve the right to have the question determined by this court; whether claimant by his "Petition for Hearing" and offer of proof was seeking compensation for a continuance of the same disability or for an increase in compensation based upon a change of conditions; whether, regardless of the claim and offer, should the Board, nevertheless have proceeded to hear and investigate the matter in full; and whether section 43-1407, I.C.A., when considered in connection with sec. 43-1107, I.C.A., applies to medical and hospital benefits.

At the outset, it may be stated appellant agrees with respondents that: "* * * the question of a statute's constitutionality is a judicial problem that only the courts have power to decide. It is not a proper question for determination by an administrative board even though it may in its normal proceedings exercise quasi judicial powers."

But appellant insists, and we think correctly, that the constitutionality of any part or provision of the Workmen's Compensation Law may be raised for the first time on appeal, where no prejudice will be suffered by the adverse party, Cole v. Fruitland Canning Ass'n, 64 Idaho 505, 134 P.2d 603, as in the case at bar. Nevertheless, there may be instances where it would be better practice to raise any such question at the first opportunity, for the information of the Board and the adversary party, the challenge to be stated in ordinary and concise language.

Furthermore, while it is too late to question the validity of a statute, after codification, on the ground of some alleged defect in the title, Anderson v. Great Northern R. Co., 25 Idaho 433, 442, 138 P. 127, Ann.Cas.1916C, 191; Curoe v. Spokane & I. E. R. Co., 32 Idaho 643, 646, 186 P. 1101, 37 A.L.R. 923; Emmett Irr. Dist. v. McNish, 38 Idaho 241, 244, 220 P. 409, it has never been held in this jurisdiction to be too late to challenge the constitutionality of a statute at any time after codification, where the challenge is not based on defect of title.

That brings us to the consideration of appellant's attack on the constitutionality of sec. 43-1407, I.C.A., in that it is insisted it denies the guaranties found in article 1, sec. 13, of the constitution of the state of Idaho and the 14th amendment of the constitution of the United States. The grounds of the attack are in substance: That such section deprives appellant of property and property rights without due process of law; that it makes "a classification not based upon a reasonable difference between the groups" classified; that it "makes an arbitrary classification"; that it is "arbitrary and unfair and hence a denial of due process and equal protection of the laws."

Section 43-1407, supra, in so far as material here, provides: [Sec. 43-1407] "On application made by any party within four years of the date of the accident causing the injury, on the ground of a change in conditions, the board may at any time, but not oftener than once in six months, review any agreement or award, and on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, subject to the maximum and minimum provided in this act, * * *."

Can it be seriously contended that that section denies either equal protection of the laws or due process of law, or that it is arbitrary and unfair, or that it makes any classification whatsoever, or that it deprives any person of property or property rights? Just a casual reading of the section discloses that instead of denying either equal protection...