Wilson v. Gardner Associated, Inc.

• Decision Date: 12 April 1967
• Docket Number: No. 9802,9802
• Citation: 426 P.2d 567,91 Idaho 496
• Parties: Victor Nye WILSON, Claimant-Respondent, v. GARDNER ASSOCIATED, INC., and Truck Insurance Exchange, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 567

426 P.2d 567

91 Idaho 496

Victor Nye WILSON, Claimant-Respondent, v. GARDNER ASSOCIATED, INC., and Truck Insurance Exchange, Defendants-Appellants.

No. 9802.

Supreme Court of Idaho.

April 12, 1967.

Elam, Burke, Jeppesen & Evans, Boise, for appellants.

Coughlan & Imhoff, Boise, for respondent.

McFADDEN, Justice.

Victor Nye Wilson, claimant-respondent, was employed as an equipment operator by appellant, Gardner Associated, Inc., insured by appellant, Truck Insurance Exchange. Wilson, after being injured July 20, 1965, in a fall from an employer-owned truck, filed a claim for workmen's compensation benefits with the Industrial Accident Board. Later he filed with the board a petition for hearing, alleging the accident and injury; that he was totally disabled for work from July 20, 1965, to October 14, 1965, the date of his petition, and would continue so disabled for an undetermined time. By its answer, appellants generally denied the allegations of the petition and affirmatively alleged that claimant's disability, if any, resulted from a prior automobile accident wholly unrelated to his employment.

The board heard the petition in November 1965. Following presentation of the claimant's testimony and that of Dr. Gardner, an orthopecdic specialist who attended claimant and who was called as a witness by appellants, the board announced:

'Based on his testimony (Dr. Gardner's) the Board is disposed to enter an interim order requiring the Defendants to pay all medical expenses to date. * * *. We are also disposed to order you to pay total temporary disability compensation from the time of the accident to date and to continue thereafter until the further order of the Board. * * *.'

Later a formal interim order was entered directing the defendants to pay all of claimant's medical bills to date and total temporary disability compensation from July 20, 1965, 'until such time as the claimant is surgically healed.' The order contemplated further proceedings to determine whether Wilson suffered any partial permanent disability. Appellants have appealed from this order.

Appellants claim the board erred in its order in failing to apportion the temporary total disability and claimant's hospital, surgical and medical expenses as between his injuries sustained from the fall from his truck and his pre-existing infirmity.

At the hearing claimant testified that he had suffered a broken right hip in an automobile accident in California in 1961 and did not attempt to return to work until he came to Idaho in the summer of 1964, when he went to work for Gardner Associated, Inc., as a truck driver. Following the 1961 accident, by operative procedure, claimant's femur and femur head were strengthened by two pins. This operation was not wholly successful, because claimant re-entered the hospital while he was in California, for removal of a pin that had worked out. Wilson did not see any doctor following the removal of the pin until after the injury in 1965.

As a result of the California accident, Wilson's right leg was three to four inches shorter than his left leg. X-rays of his right hip taken subsequent to the 1965 accident disclosed that the old fracture of the femur had never properly healed and that there was a displacement between the femur and its head, and that scar tissue held the femur in relationship to the head of the femur enabling claimant to move and work

Even though claimant was suffering from this condition, he was able to work as a truck driver. On July 20, 1965, he was driving a watering truck for his employer. He fell out of the truck, and his right foot caught between the brake pedal and clutch pedal of the truck. He fell to his knees and felt a 'real sharp pain * * * high on the hip,' but was able to get back into the truck. He reported to an inspector on the construction job, and left his work on the watering truck, but completed the day's work of an hour or two by driving a 'tamper,' a machine used to compact loose road material. After the shift he crawled to his vehicle and drove to consult a doctor in Rigby, who immediately advised him to go to the hospital in Idaho Falls for X-rays to assist in the diagnosis. He was in the hospital overnight and then brought to Boise for treatment by Dr. Gardner, an orthopedic specialist.

Dr. Gardner took X-rays of the hip and then placed claimant in traction for over a month, which was ineffective in the attempt to re-align the old separation. Subsequently Dr. Gardner performed an osteotomy, cutting the femur, and reattaching it in a slightly offset position employing a pin to hold it in place, together with a plate and other pins. The head of the femur was still left separated from the femur itself. The joint was not fused, which would have rendered it immobile. Dr. Gardner stated that the right leg would continue to be about two inches shorter, even following the surgery. In response to questions by a member of the board, Dr. Gardner testified that the surgery was intended to decrease pain and maintain motion in spite of the degeneration of the femoral head. The doctor diagnosed the cause of claimant's pain as a strain or sprain tearing loose the old scar tissue which had been holding the joint in position and enabling claimant to walk. Dr. Gardner further stated that the operation was necessitated by the claimant's pain and, considering the prior history of the hip area, the pain would eventually have become so acute as to have required remedial attention anyway. According to his testimony, he could not give a date as to when such eventuality would have come to pass, dependent in large part upon the individual's capacity to withstand pain and discomfort.

In resolution of the issue presented by this appeal, a review of decisions of this court in relationship to statutory law as it existed from time to time is in order.

In McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068, decided in 1921, following the conclusion of the Massachusetts court in Madden's Case, 222 Mass. 487, 111 N.E. 379, L.R.A. 1916D, 1000, this court stated '* * * that our compensation law makes no distinction between wise and foolish, skilled and unskilled, healthy and unhealthy employees. All who are rightly described as 'workmen' or 'employees' come within the act.' (34 Idaho at 793, 203 P. at 1075.) There the claimant, who had previously lost the use of one eye, was granted a specific indemnity based on permanent total disability, following the loss of his other eye in an industrial accident. The McNeil case was cited with approval in the case of In re Larson, 48 Idaho 136, 279 P. 1087 (1929), where the decedent employee suffered pre-existing latent heart defects. In the Larson case this court determined that as a result of the work performed, claimant's latent physical defect 'was accelerated or aggravated and progressed farther' causing death, and reversed an order denying compensation, and directed that an award be made.

Hanson v. Independent School Dist. 11-J, 50 Idaho 81, 294 P. 513, decided in 1930, held that where a claimant was afflicted with a pre-existing disease, if such disease is aggravated by accident in the course of his employment, such claimant was entitled to recover. The case was remanded to the board to determine whether there was in fact an accident, and whether such accident did or did not proximately cause the injury. Therein this court stated:

'The presence of a previous disease or weakened condition is immaterial. If it should be determined that respondent's injuries resulted partly but not entirely from the alleged accident, it is the duty of the board to separate the results of the pre-existing disease or weakness from those of the alleged accident and injury and apportion the award accordingly.' 50 Idaho at 85, 294 P. at 514.

(See however, Hanson v. Independent School Dist. 11-J, 57 Idaho 297, 65 P.2d 733 (1937)).

The above quoted language from Hanson v. Independent School District, supra, was disapproved by this court the following year in Strouse v. Hercules Min. Co., 51 Idaho 7, 1 P.2d 203 (1931), wherein the court stated:

'Appellants cite Hanson v. Independent School Dist., * * *, to support a contention that, where a disability results partly but not entirely from an alleged accident, it is the duty of the board to separate the results of the pre-existing disease or weakness from those of the accident and apportion the award accordingly. This is not the rule in Idaho, but in Kentucky where a different statute prevails. C.S., § 6217 (now I.C. § 72-201), recognizes no such apportionment. Regardless of pre-existing conditions, if a workman's disability is precipitated by an accident arising out of his employment, which disability would in all probability not have arisen but for such accident, the statute contemplates full compensation. (McNeil v. Panhandle Lumber Co., 34 Idaho 773, 788, 203 P. 1068; 1087.)' 51 Idaho at 16, 1 P.2d at 206. 1087.)' 51 Idaho at 16, 1 P.2d at 206.

As to aggravation of a pre-existing disease, see Nistad v. Winton Lumber Co., 61 Idaho 1, 99 P.2d 52 (1939); Paull v. Preston Theatres Corp., 63 Idaho 594, 124 P.2d 562 (1942) and cases therein cited at 63 Idaho 606, 124 P.2d 567.

In 1940 this court in two cases, Young v. Herrington, 61 Idaho 183, 99 P.2d 441, and Hamlin v. University of Idaho, 61 Idaho 570, 104 P.2d 625, was again faced with the problem on apportionment of disabilities caused by previous injury and an industrial accident. In Young v. Herringson, supra, the no-apportionment rule was re-affirmed. There claimant had suffered an injury for which he received compensation for temporary partial disability. Claimant sought modification of the award, claiming the injury aggravated and accelerated a tubercular condition of his spine, and also claiming permanent partial or total disability. The court after reviewing the record concluded the evidence disclosed his injury contributed to his total...