Watkins v. Cavanagh

• Decision Date: 24 October 1940
• Docket Number: 6774
• Citation: 61 Idaho 720,107 P.2d 155
• Parties: EARL E. WATKINS, Appellant, v. DAN J. CAVANAGH, Employer, and STATE INSURANCE FUND, Surety, Respondents
• Court: Idaho Supreme Court

107 P.2d 155

61 Idaho 720

EARL E. WATKINS, Appellant, v. DAN J. CAVANAGH, Employer, and STATE INSURANCE FUND, Surety, Respondents

No. 6774

Supreme Court of Idaho

October 24, 1940

WORKMEN'S COMPENSATION-AWARD-EVIDENCE, SUFFICIENCY OF-REVIEW-EXPERT TESTIMONY.

1. In compensation proceeding, testimony of medical experts as to extent of disability of compensation claimant was purely advisory.

2. In compensation proceeding, it is for the board to determine under all the evidence the degree of disability of compensation claimant.

3. Where there is sufficient competent evidence to support finding and award of compensation board, reviewing court will not disturb finding and award. (I. C. A., sec. 43-1409 (a) as amended by Sess. Laws, 1937, chap. 175, sec. 2.)

4. Evidence sustained finding that compensation claimant suffered a disability resulting from permanent leg injury comparable to 10 per cent of loss of the leg by amputation at the hip.

5. Where a compensation claimant failed to submit evidence to establish amount of compensation to which he was entitled and there was no question but that he was entitled to compensation, compensation board was required to call attention to such failure and to see that whatever evidence was available to establish such fact was presented, and then to make an appropriate finding as to average weekly wage of claimant.

APPEAL from the Industrial Accident Board.

Proceeding under the Workmen's Compensation Act by Earl E. Watkins claimant, opposed by Dan J. Cavanagh, employer, and the State Insurance Fund, surety. From an order awarding compensation claimant appeals. Reversed and remanded with directions.

Reversed and remanded with directions. Costs awarded to appellant. Petition for rehearing denied.

E. B Smith and Dale Clemons, for Appellant.

A physician who attends a workman from the time of injury, during the workmen's disability period, is in the best position to form an opinion concerning the cause and degree of the workmen's permanent disability; such physician's opinion is entitled to more weight than that of one who did not so attend the workman. (Olivier v. Daniel Jeffrey & Sons, (La. App.) 169 So. 247, Delich v. Lafferty Shingle Mill Co., 49 Idaho 552, 290 P. 204, Hawkins v. Bonner County. 46 Idaho 739, 271 P. 327, Jensen v. Wheeler & England, 51 Idaho 91, 1 P. 624, Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605, 97 A. L. R. 1399, and Arender v. Grant Timber & Mfg. Co., 9 La. App. 132, 119 So. 498.)

An injury which requires skilled and professional men to determine the cause or extent thereof, presents a scientific question for determination by the testimony of skilled and professional men. (R. S. Smith Const. Co. v. Swindell, 185 Okla. 35, 89 P.2d 947; Atlantic Refining Co. v. Allen, 185 Okla. 194, 90 P.2d 659.)

In a case where a workman is shown to be entitled to compensation, it is incumbent upon the board in the first instance, to make inquiry and have evidence presented to it so that it may make the necessary findings as to the amount of compensation. ( Feuling v. Farmers' Cooperative Ditch Co., 54 Idaho 326, 31 P.2d 683.)

Clarence L. Hillman, for Respondents.

The Industrial Accident Board was not bound to accept medical witnesses' highest or lowest estimates, nor any exact intermediate estimate of appellant's disability, but instead it was the board's function and duty to find, in the light of such conflicting expert opinions and on consideration of all of the evidence, including appellant's testimony, whether there was permanent disability, and if so, its extent. (Montgomery Ward & Co. v. Industrial Com., (Colo.) 94 P.2d 689; Silver King Coalition Mines Co. v. Industrial Com., 92 Utah 511, 69 P.2d 608; Donker v. Central West Public Service Co., 134 Neb. 892, 280 N.W. 168; Ciello v. D. J. Kennedy Co., 131 Pa. Super. 492, 200 A. 147; Whisenant v. Bostick, 61 Ga.App. 447, 6 S.E.2d 146.)

HOLDEN, J. Ailshie, C. J., and Budge and Givens, JJ., concur. Morgan, J., did not sit at the hearing or participate in the decision.

OPINION

HOLDEN, J.

--Claimant, Earl E. Watkins, began working for Dan J. Cavanagh, road contractor, as a shovel oiler the latter part of July, 1937. August 22, 1937, while removing an oil pump from the power shovel, the pump fell on his chest and "hurt claimant bad." The following day claimant developed a severe case of traumatic pneumonia, followed by the complication of phlebitis, or "milk leg," in his left leg, caused by the pump falling on his chest and inflicting a severe bruise. He was abed for 47 days and did not attempt to work until the latter part of December, 1938.

Notice of the injury and claim for compensation were immediately given and filed, and the State Insurance Fund promptly paid all medical expenses as well as compensation for total disability from work for the period beginning August 23, 1937, and ending January 20, 1938.

April 8, 1938, claimant filed an application claiming compensation for an additional period of disability from work and for permanent disability caused by the after-effects of milk leg in his left leg. The matter was heard, first at McCall, July 5, 1938, and later, September 19, 1939, at Boise, by stipulation of the parties. October 21, 1939, the board, among other things, found:

"That claimant was totally temporarily disabled for work from and including the 23rd day of August, 1937, until the 20th day of January, 1938; that after said 20th day of January, 1938, claimant was able to and did do small jobs; that he was, however, partially temporarily disabled for work from the 19th day of January, 1938, until the 28th day of June, 1938; that on said last mentioned date, claimant's disability for work ceased.

"The claimant now has a permanent injury in his left leg consisting of a disturbance of the circulatory system in said leg, distended veins, tenderness and a disproportionment of the legs, the left being somewhat larger than the right; that the disability resulting from said permanent injury is comparable to 10% of the loss of the leg by amputation at the hip."

It then made the following award:

"Wherefore it is ordered, and this does order, that the defendants, Dan J. Cavanagh, employer, and State Insurance Fund, surety, and each of them, pay to the claimant, Earl E. Watkins, for his partial temporary disability for work, 55% of the difference between his average weekly wage of $ 36.40 and the weekly wages he was able to earn from January 20, 1938, to the 28th day of June, 1938, but in no case to exceed $ 12.00 a week, and additional compensation for his permanent injury at the rate of $ 12.00 per week for 99% of 18 weeks . . . ."

Two questions are presented on this appeal by the claimant, namely: (1) Has appellant suffered a permanent injury comparable to the loss of a leg at the hip, or to a lesser degree as found by the board. (2) Should the board have fixed the rate of weekly compensation which appellant is entitled to receive for his partial disability for work suffered during the period commencing January 20, 1938, and ending, June 28, 1938. These questions will be discussed in the order stated.

Dr. Don S. Numbers, claimant's physician, examined him at regular intervals up to the date of the hearing. July 9, 1938. He testified claimant had suffered a permanent injury to his left leg: continual tenderness, thickening lymphatics, varicose veins, and that the left leg was larger than the right, all of which...