Zapantis v. Central Idaho Mining & Milling Co.

• Decision Date: 21 September 1940
• Docket Number: 6686
• Citation: 106 P.2d 113,61 Idaho 660
• Court: Idaho Supreme Court
• Parties: JAMES ZAPANTIS, Appellant, v. CENTRAL IDAHO MINING & MILLING COMPANY and STATE INSURANCE FUND, Respondents

106 P.2d 113

61 Idaho 660

JAMES ZAPANTIS, Appellant, v. CENTRAL IDAHO MINING & MILLING COMPANY and STATE INSURANCE FUND, Respondents

No. 6686

Supreme Court of Idaho

September 21, 1940

WORKMEN'S COMPENSATION-AWARD-COMPENSATION AGREEMENT APPROVED BY BOARD-RES JUDICATA-MODIFICATION-CHANGE OF CONDITION.

1. A compensation agreement between claimant, employer, and State Insurance Fund, approved by the Industrial Accident Board has the same effect as an award of the board, and subject to review on appeal is final and conclusive as between the parties in the absence of fraud, except that it may be modified by board on the ground of a change in conditions. (I. C. A., secs. 43-1407, 43-1408.)

2. Original compensation award consisting of agreement between claimant, employer, and State Insurance Fund, approved by the Industrial Accident Board, was "res judicata" as to condition of claimant at that time, so that, where board specifically found on subsequent application for modification of the award that there had been no change in claimant's condition, board could not, in absence of fraud, hear the case de novo and vacate the original award on ground that at time of original award claimant's condition was worse than board had then found, and enter a new and different award. (I. C. A., secs. 43-1407, 43-1408.)

APPEAL from the Industrial Accident Board. From an order cancelling and annulling a former agreement and award of the board, and entering a new award for plaintiff for different and additional compensation, defendants appeal. Claimant also appeals. Award vacated and set aside and cause remanded.

Award vacated and set aside and cause remanded. No costs awarded. Petition for rehearing denied.

E. B Smith, for Appellant.

The rule to the effect that the appellate court should not disturb the findings of the Industrial Accident Board is based on the theory that in the trial of a case depending wholly on questions of fact, the board, having witnesses before it, hearing their testimony, observing their manner of testifying, and able to observe their appearance and deportment while under examination, is better acquainted to judge the weight to be given their testimony than is the appellate court; that where the testimony is, as in the case under consideration, matter of opinion, and the evidence upon which such opinion is based is before the appellate court such rule does not apply. (Bane v. Gwinn, 7 Idaho 439, at 446, 447, 63 P. 634; Beaver v. Morrison-Knudsen, 55 Idaho 275, 41 P.2d 605, 97 A. L. R. 1399; Hillman v. Utah Power & Light Co., 56 Idaho 67, 51 P.2d 703; 22 C. J., sec. 823, at 733; 42 L. R. A. Digest, 753 et seq.; Southern Kansas Ry. Co. v. West, (Tex. Civ. App.) 102 S.W. 1174; McDonald v. Metropolitan St. Ry. Co., 219 Mo. 468, 118 S.W. 78, 16 Ann. Cas. 810; In re Loomis' Will, 133 Me. 81, 174 A. 38.)

The "change in conditions" contemplated by I. C. A., sec. 43-1407, is not limited to physical changes, but embraces any change, including changes in mental conditions. (I. C. A., secs. 43-1407, 43-1810; Amerada Petroleum Corp. v. Williams, 134 Okla. 177, 272 P. 828; Jenkins v. Boise Payette Lbr. Co., 49 Idaho 24, 287 P. 202; Hustead v. H. E. Brown Timber Co., 52 Idaho 590, 17 P.2d 927.)

The Workmen's Compensation Law does not require a workman to continue to work if such causes him serious pain and suffering; if a workman is not able to work except with serious pain and suffering he is totally disabled for work. (Joliet & E. Traction Co. v. Industrial Com., 229 Ill. 517, 132 N.E. 794, at 796; Hissom Drilling Co. et al. v. Benson, 153 Okla. 157, 5 P.2d 393; Roller v. Warren, 98 Vt. 514, 129 A. 168; Trowbridge v. Wilson & Co., 102 Kan. 521, 170 P. 816.)

Clarence L. Hillman, for Respondent and Cross-appellant, State Insurance Fund.

Where, as in this case, an agreement for compensation has been reached between the parties thereto, and has been duly approved and entered by the board, it has the same effect as an award by said board, and in the absence of fraud, is final and conclusive between the parties, unless an appeal is duly taken therefrom (except that it may be reviewed on the ground of a change in condition occurring subsequent to the making thereof); and the same applies to an order duly made and entered by said board denying an award. (1917 Laws, chap. 81, secs. 49, 56 and 57; I. C. A., secs. 43-1407, 43-1408, 43-1409; Rodius et al. v. Coeur d'Alene Mill Co. et al., 46 Idaho 692, 271 P. 1; Van Blaricom v. Export Lumber Co. et al., 52 Idaho 459, 16 P.2d 990; Reagan v. Baxter Foundry & Machine Works et al., 53 Idaho 722, 27 P.2d 62.)

The Industrial Accident Board of the state of Idaho is a judicial body exercising judicial functions, and its decisions and awards are subject to those general legal principles which circumscribe and regulate the judgments of all judicial tribunals. (U. S. Const., Amends. IV and XIV, sec. 1; Const., Art. I, sec. 13; I. C. A., sec. 43-1404; Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A. L. R. 200.)

Where, as in this case, there is no fraud in procuring a former award, and no appeal is taken therefrom in the time provided for by statute, it is reversible error for the board to set the same aside and make an order and award in favor of appellants and against cross-appellants. (In re Black, 58 Idaho 803, 80 P.2d 24; 1917 Laws, chap. 81, secs. 49, 56 and 57; I. C. A., secs. 43-1407, 43-1408, 43-1409; Rodius et al. v. Coeur d'Alene Mill Co. et al., supra; Van Blaricom v. Export Lumber Co. et al., supra; Reagan v. Baxter Foundry & Machine Works et al., supra; Boshers v. Payne, 58 Idaho 109, 70 P.2d 391.)

AILSHIE, C. J. Budge, Givens and Holden, JJ., concur. Morgan, J., did not sit at the hearing nor participate in the opinion.

OPINION

AILSHIE, C. J.

The claimant James Zapantis, a Greek laborer, had been employed by the Central Idaho Mining & Milling Company, which we will hereinafter designate as the Company, since April, 1934. His work consisted of loading cars in a mining tunnel. June 20, 1934, while claimant was at his duties as employee, in fixing a platform in the underground tunnel, some rock dropped from the roof of the tunnel onto claimant, knocking him down and seriously injuring him, particularly in his back, lower limbs and kidneys. He was taken to the hospital and a physician was called and he was properly treated, and the case was reported to the Industrial Accident Board. What followed on and after April 17, 1935 (date of compensation agreement), is quite fully covered by the findings of the board, up to the date (Sept. 16, 1937) of filing the petition in the present case:

"VI.

"That on the 17th day of April, 1935, the claimant, James Zapantis, and the Central Idaho Mining & Milling Company, employer, and State Insurance Fund, surety, entered into an agreement regarding compensation due the claimant by reason of the injuries received by him as above stated, on the 20th day of June, 1934; that in said agreement it was agreed by and between the parties that as a result of the above mentioned injuries, he was totally disabled for work from the 21st day of June, 1934, to the 28th day of January, 1935, and had a permanent partial disability consisting of loss of function in the back equal to 10% as compared to amputation of one leg at the hip and the said defendants agree to pay to the claimant as compensation for the said total temporary disability and the permanent partial disability the sum of $ 652.64.

"VII.

"That the said defendants have paid to the claimant. James Zapantis, the whole sum of said $ 652.64, and have paid for all the hospitalization had by claimant by reason of his injury sustained by him as above stated and for all of the necessary medical attendance had by him on account of said injuries until said agreement was entered into on April 17, 1935; that such payment of compensation covered the period from June 20, 1934, until June 4, 1935.

"VIII.

"That on or about December 30, 1935, claimant filed with the Industrial Accident Board his application to reopen the case and for modification of the agreement or award theretofore made in his favor, upon the ground that he had suffered a change in condition since said agreement was entered into and approved by the Board; that a hearing was had upon said application for modification and as a result thereof the Industrial Accident Board on January 30, 1936, made and filed herein its Findings of Fact, Rulings of Law and Order to the effect that no change had then occurred in claimant's condition as a result of his accident and denying claimant's application for modification."

Commencing with the date of filing the present petition for modification of the award, and thence down to the award made thereon, the facts and circumstances are quite fully covered by Findings IX and X as follows:

"IX.

"That on the 16th day of September, 1937, the claimant filed with the Board another petition for modification alleging therein 'that since claimant's application for a review of modification of agreement and award heard on February 1 1936, there has been a change of claimant's condition, in that the injuries which claimant sustained on said June 20, 1934, and results thereof have progressed for the worse in that claimant has suffered and he is now suffering from psychoneurosis of traumatic origin, also progressive hypochondriasis of traumatic origin; that such ailments are referred to in his said application about pains in claimant's chest and head with sharp shooting pains in his lower lumbar region; that at times he suffers dizziness and upon exertion in attempting to lift any sizable weight, he suffers from marked lumbar pains which extend up his entire back to his head, accompanied by dizziness and...