Zipse v. Brothers

• Decision Date: 21 December 1944
• Docket Number: 7216
• Citation: 154 P.2d 171,66 Idaho 30
• Court: Idaho Supreme Court
• Parties: GEORGE ZIPSE, Employee, Respondent, v. SCHMIDT BROTHERS, Employers, and FIREMAN'S FUND INDEMNITY COMPANY, Surety, Appellants

154 P.2d 171

66 Idaho 30

GEORGE ZIPSE, Employee, Respondent, v. SCHMIDT BROTHERS, Employers, and FIREMAN'S FUND INDEMNITY COMPANY, Surety, Appellants

No. 7216

Supreme Court of Idaho

December 21, 1944

1. Workmen's compensation

In determining whether employee's disability was the result wholly or partially, of a pre-existing disease and not materially affected by accidental injury, opinion of experts is substantive evidence, and basis for award must be supported by such testimony. (I.C.A., secs. 43-1113; 43-1123 as added by Sess. Laws 1941, chap. 155.)

2. Workmen's compensation

Findings of fact of Industrial Accident Board, if supported by substantial probative though conflicting evidence, may not be disturbed except for errors of law.

3. Workmen's compensation

Where medical testimony ranged from assertion that no part of disability was caused by accident to assertion that entire disability was caused by accident, it was incumbent upon Industrial Accident Board to find the apportionable compensation norm of the employee's disability. (I.C.A., secs. 43-1113; 43-1123, as added by Sess. Laws 1941, chap. 155.)

4. Workmen's compensation

Where employee's physician emphasized effect of accident on tearing loose and wrenching pre-existing arthritic condition as causing disability complained of, while employer's physicians emphasized progressive nature of rheumatoid arthritis, divergence of testimony was for Industrial Accident Board. (I.C.A., sec. 43-1123, as added by Sess. Laws 1941, chap. 155.)

5. Workmen's compensation

Where injured employee two years before accident contracted an arthritic condition but employee was totally disabled at all times since injury, in view of medical testimony Industrial Accident Board was justified in considering that continuance of disability during seven-months' period between time when effects of injury should have worn off and disabling effect of arthritis should have become total was contributed to by accident. (I.C.A., sec. 43-1123, as added by Sess. Laws 1941, chap. 155.)

6. Workmen's compensation

The existence of two causes for injured employee's total disability merely adds another factor to be considered by Industrial Accident Board and does not take away supporting basis for an award for accidental injury. (I.C.A., sec 43-1123, as added by Sess. Laws 1941, chap. 155.)

7. Workmen's compensation

Evidence authorized award of compensation for permanent disability for injured back at rate of 80 per cent of the loss of a leg at or above the knee, notwithstanding a showing that employee suffered a pre-existing arthritic condition which also in time would have totally disabled employee. (I.C.A., secs 43-1113; 43-1123, as added by Sess. Laws 1941, chap. 155.)

8. Workmen's compensation

Industrial Accident Board has duty to fully investigate and find the facts with respect to a claim pending before it and in so doing may itself examine physicians whose testimony is offered.

Appeal from the Industrial Accident Board.

Affirmed.

Willis C. Moffat and E. B. Smith for appellants.

The claimant has the burden of proving his disability by a preponderance of substantial evidence. (Bower v. Smith, 63 Ida. 128, 118 P.2d 737; Vaughn v. Robertson & Thomas, 54 Ida. 138; Carlson v. De Atley, 55 Ida. 713; Stroscheim v. Shay, 63 Ida. 360; Madriaga v. Delamar Milling Corp. (Ida.), 135 P.2d 439; Fackenthall v. Eggers Pole & Supply Co., 62 Ida. 46, 108 P.2d 500.)

The findings and award are not supported by substantial, competent evidence and should be set aside and annulled. (Paull v. Preston Theatres Corp., 63 Ida. 595, 1924 P.2d 562; McNeil v. Panhandle Lbr. Co., 34 Ida. 773, 203 P. 1068; Ybaibarriaga v. Farmer, 39 Ida. 361, 228 P. 227; Taylor v. Blackwell Lbr. Co., 37 Ida. 707, 218 P. 356; Butler v. Anaconda Copper Min. Co., 46 Ida. 326, 268 P. 6; In re Hillhouse, 46 Ida. 730, 271 P. 459; Reader v. Milwaukee Lbr. Co., 47 Ida. 380, 275 P. 1114.)

Frank F. Kimble for respondent.

If reasonable men can draw different inferences from the evidence, the findings of the Board is final and cannot be disturbed on appeal. (Vaughn v. Robertson & Thomas, 54 Ida. 138, 29 P.2d 756; Salt Lake County v. Industrial Comm., (Utah), 120 P.2d 321; Schaller v. Industrial Accident Comm., (Cal.), 77 P.2d 836; Beaver v. Morrison-Knudsen Co., 55 Ida. 275, 41 P.2d 605.)

Where there is any competent evidence to support findings, or where there is a conflict in the evidence, findings of Board are binding upon the Supreme Court. (In re Cain, (Ida.), 133 P.2d 723; Fackenthall v. Eggers Pole & Supply, 62 Ida. 46, 108 P.2d 300; Dyre v. Kloepfer & Calhoun, (Ida.), 134 P.2d 610; Madariaga v. Delmar Mill Corp., (Ida.), 135 P.2d 438.)

The testimony of an expert, as to opinion, is not evidence of fact, but advisory only to assist triers of fact to understand and apply evidence. (Nistad v. Winston Lbr. Co., 61 Ida. 1, 99 P.2d 52; Evans v. Cavanaugh, 58 Ida. 324, 73 P.2d 83; Montgomery Ward & Co. v. Industrial Accident Co., (Colo.), 94 P.2d 689.)

Givens, J. Holden, C.J., and Ailshie, Budge, and Dunlap, JJ., concur.

OPINION

Givens, J.

Respondent, 26 years old, was employed by Schmidt Brothers in their logging operations as a landing man. July 9, 1943, while releasing logs in connection with the choker, he was struck on his back by a cat's jerking a cable across the back in the vicinity of the hips, the cable slid up his back in the region of the groin or the small of the back, and he was forced to some extent under the log. The cable again struck him across the back in the neighborhood of the shoulder and forced him face down on the log, and again struck him in a general manner parallel with the spine from a point near the neck and downward from the neighborhood of the neck to the coccyx. He was taken to the hospital, where he remained six days. X-rays taken revealed no fractures but disclosed contusions on his back and an arthritis or osteoarthritis of the sacro-iliac joints and lumbar region.

Respondent gave a history of having had occasional pains in his back for the past two years, although he had lost no time from work, having engaged in farming while not working on logging operations. Respondent has been unable to do any work since the accident and was totally disabled at the time of the hearing because of a general stiffening of the spine, pain and soreness in that region and in his chest and abdomen, and inability to expand his chest in breathing.

Compensation was paid until March 24, 1944, when appellants denied further liability, claiming respondent's continuing condition of total disability was due to the pre-existing arthritis and not the result of the accident.

Under sec. 43-1123, added 1941 S. L., ch. 155, p. 310, ^[1] the board found that respondent's permanent disability resulting from said accident was equivalent to 80% of the loss of one leg at or above the knee where stumps remain sufficient to permit the use of an artificial limb and ordered that compensation be paid him therefor. (43-1113, I.C.A.)

Appellant contends there is no substantial evidence in the record supporting such finding on the basis that Dr. Hopkins, who treated respondent at the time of the accident and took X-rays, testified respondent's arthritis, being progressive, would have increased regardless of the accident, and gave no percentage of the disability attributable to the accidental injury, and that Drs. Grieve and Adams, orthopedic specialists, and Dr. Anderson, specializing as a diagnostician in internal medicine, of Spokane, in their depositions estimated the disability due to the accidental injury at no more than 10% of the loss of the leg at the hip; also, the arthritic condition causing a complete ankylosis of the spine was diagnosed by the specialists as rheumatoid arthritis or Marie-Strumpell's disease, affecting young people, and progressing to the point where respondent's spine is almost rigid and that the X-rays showed he probably had been afflicted with this condition beginning about two years before the accident; that it was generally considered that this type of disturbance was of metabolic origin, in other words, a disease, and that the same would not be materially or lastingly affected by the accidental injury.

Where a situation such as this has to be determined by medical testimony, the opinion of experts is substantive evidence, and the basis for award must rest upon and be supported by such testimony. (Brooke v. Nolan, 59 Ida. 759, 87 P.2d 470; Fackenthall v. Eggers Pole & Supply Co., 62 Ida. 46, 108 P.2d 300; Pacific Employers Ins. Co. v. Industrial Accident Comm., 47 Cal.App. (2d) 494, 118 P.2d 334; Alaska Packers' Ass'n. v. Industrial Accident Comm., 1 Cal. (2d) 250, 34 P.2d 716; Cole v. Fruitland Canning Ass'n., 64 Ida. 505, 134 P.2d 603; Maryland Casualty Co. v. Industrial Accident Com'n., (Cal.), 148 P.2d 95.)

On the other hand, findings of fact of the board if supported by substantial, probative, though conflicting, evidence may not be disturbed except for errors of law.

As opposed to the testimony of the above physicians, Dr. White who likewise examined respondent and the X-rays, first testified that respondent had a diseased condition of the spine at the time of the injury and the injury aggravated that condition and that since that time he has been unable to work, that the injury exaggerated the condition, that the injury broke down the adhesions around the spinal column caused by the osteoarthritis and exaggerated the condition, though he could not say how much the injury had to do with putting respondent in his present condition. Later and upon further examination by a member of the board he stated respondent's present inability to work was due "to the injury that he...