46 P.2d 77 | Idaho | 1935
Lead Opinion
September 11, 1931, respondent, while employed by appellant Peterson Motor Company, as an automobile salesman, suffered an accident, resulting in a prolapsed kidney (disputed but so found by the board) and three broken vertebrae between the hips, for which he received $16 a week for 29 weeks of total temporary disability, and after an operation to correct the above injuries, was pronounced surgically healed April 1, 1932, and a compensation agreement entered into April 2d, approved by the Industrial Accident Board, for $13.75 a week for 148% weeks of partial disability, due to a loss of function and injury to the spine, arrived at by comparison and similarity to 82% per cent of the amputation of one leg at the hip joint. On this basis, he was paid the full 148% weeks. Thereafter, November 10, 1932, respondent filed an application for changed condition review alleging a recurrence of the prolapsed kidney and complications, and that the rate of compensation at $13.75 should have been $16 a week, because his average rate of pay prior to the accident justified the higher indemnity under I. C. A., see. 43-1110. Contrary to appellants’ contention there was no commutation of payment under I. C. A., secs. 43-1407 and 43-1121, barring the relief asked for, merely periodical payments under I. C. A., sec. 43-1120.
Appellants’ next point is that a comparison of the injury to the spine and the prolapsed kidney could, not be made with any specific indemnity under I. C. A., see. 43-1113, to sustain the percentage basis of the first award now making a total as of the loss of one leg at the hip.
“Fundamentally, almost any scheduled injury under our Workmen’s Compensation Law produces some — perhaps slight although it may be substantial — unnatural result upon normal bodily functions. If it were to be held that all such results constituted general partial disability under the statute, there would be little or no purpose in having scheduled injuries. ’ ’
See Porter v. Sinclair Prairie Oil Co., 169 Okl. 449, 37 Pac. (2d) 626. Yet the legislature intended to. make provision for certain specific injuries and indemnities not considered to come under sec. 43-1112, and sec. 43-1112 deals only with partial disability which may be either permanent or temporary. Section 43-1111 deals wholly with total disability which may be permanent or temporary. If the word “class,” however, be considered to refer to the various members or organs of the body mentioned in sec. 43-1113, then effect may be given both secs. 43-1112 and 43-1113. It is unnecessary for us to consider the scope of sec. 43-1113 further. The accident or injury here not being connected with any of the portions of the body members or organs mentioned in sec. 43-1113 does not fall within that class of injuries but perforce comes under sec. 43-1112. (Eldridge v. Idaho State Penitentiary, 54 Ida. 213, 30 Pac. (2d) 781; Kelley v. Prouty, 54 Ida. 225, 30 Pac. (2d) 769.) The authorities below fully sustain this construction of the. statute that is that to be compensable under sec. 43-1113 the injury or accident must be to one of the members or organs therein mentioned, but while some of the
It is evident, however, that the board was justified in considering, and did so consider, that the claimant suffered a permanent partial disability and hence would be entitled to a full 150 weeks, and since he had received only 14814 (29 weeks’ total temporary disability and 11914 weeks’ temporary partial disability) should receive an additional 1% weeks under sec. 43-1112 for permanent partial disability.
The board refused to increase the weekly rate from $13.75 to $16. Eespondent appealed to the district court which found in respondent’s favor on this point. Appel
From a careful survey of the authorities it is apparent that a hearing because of changed conditions is limited to a modification of the award solely on that ground and no other errors may be corrected by either party. (State v. Industrial Com., 125 Ohio St. 27, 180 N. E. 376; Indianapolis Bleaching Co. v. Morgan, 75 Ind. App. 672, 129 N. E. 644; K. D. Oil Co. v. Datel, 145 Okl. 264, 292 Pac. 564; Hogeberg v. Industrial Acc. Com., 201 Cal. 169, 256 Pac. 413; State ex rel. Meaney v. State Industrial Acc. Com., 115 Or. 484, 237 Pac. 680; Aetna Life Ins. Co. v. Industrial Com., 69 Utah, 102, 252 Pac. 567; Hanna Lumber Co. v. Penrose, 154 Okl. 210, 7 Pac. (2d) 164; Lawton Oil & Refining Co. v. Nichols, 160 Okl. 176, 16 Pac. (2d) 585; Bilharz Min. Co. v. Clark, 153 Okl. 31, 4 Pac. (2d) 729; Humble Oil & Refining Co. v. Noble, 161 Okl. 35, 16 Pac. (2d) 1072; Shell Petroleum Corp. v. Patton, 167 Okl. 246, 29 Pac. (2d) 86; Hanson v. North Dakota Workmen’s Comp. Bureau, 63 N. D. 479, 248 N. W. 680; Foster v. Mellon Stuart Co., 114 Pa. Super. 311, 173 Atl. 773; State v. District Court of Rice County, 134 Minn. 189, 158 N. W. 825; Indianapolis Pump & Tire Co. v. Surface, 86 Ind. App. 55, 155 N. E. 835; Franklin County Min. Co. v. Industrial Com., 322 Ill. 555, 153 N. E. 608; State v. District Court,
Therefore we may correct the previous award neither as to a wrong classification as urged by appellant nor as to a wrong amount as urged by respondent. The future award because of changed conditions is limited to the maximum and minimum provided in the Act. The applicable section 43-1112 herein sets a maximum of 150 weeks, of which 148% have been paid. Respondent, however, is entitled to the additional 1% weeks, and since the evidence shows that the rate should have been $16 per week instead of $13.75 as a matter of law, he should receive an additional week and a half at $16 per week.
So modified, the judgment is affirmed. No costs awarded.
Dissenting Opinion
Dissenting. — During the consideration and preparation of the original opinion in this ease I differed with the majority of the court as to what was the proper interpretation of the words “and all other cases in this class” found in sec. 43-1113, I. C. A. Out of deference to the. majority and rather than encumber the record with a useless dissenting opinion, I concurred in the original opinion.
The interpretation placed on this section by the majority will in my judgment deprive many injured workmen of compensation commensurate with the injuries and disabilities sustained by them in comparison with the compensation awarded others. I therefore dissent.
Rehearing
ON REHEARING.
Respondent’s petition for rehearing was granted on the question of whether or not the court was correct in holding that the term “class” in I. G. A., sec. 43-1113, embraced or referred to injuries or accidents to the members or organs of the body therein mentioned and not to permanent partial disabilities.
We have again considered this question and reviewed the authorities ably presented by respondent, but we nevertheless adhere to our former view as to what the legislature meant by the term “class” in said section, and believe that in similar statutes it has so been generally construed by other courts and that these additional authorities further support this construction. (Murphy v. Lynch Co., (Mo.) 57 S. W. (2d) 695; Sokolowski v. Bank of America, 261 N. Y. 57, 184 N. E. 492; Ujevich v. Inspiration Consol. Copper Co., 42 Ariz. 276, 25 Pac. (2d) 273; and also note Vukelich v. Industrial Commission of Utah, 62 Utah, 486, 220 Pac. 1073, where the legislature evidently considered that language different from that contained in our statute was necessary to give a somewhat similar meaning contended for by respondent.')
The original opinion is therefore adhered to.