118 P.2d 737 | Idaho | 1941
Lead Opinion
May 15, 1937, and for several years prior thereto Fred Bower was employed by the Triangle Construction Company as superintendent of construction. On that date while inspecting a caterpillar tractor he fell backwards from the upper deck landing on his left side on the shoulder of the road. Thereafter and on or about July 10, 1937, appellant, while in charge of construction operations for this company, crawled under a truck to inspect a portion thereof and while crawling out raised suddenly before clearing it and struck his back in the region of the left kidney on some protruding part of the truck. He lost weight and vitality from May 15, 1937, to November 10, 1937, at which time he weighed approximately 145 pounds. On the latter date he entered St. Luke's hospital. December 13, 1937, his left kidney was removed and his condition diagosed as a systic adeno carcinoma of the left kidney. It appears the left kidney had a malignant carcinoma at the time these accidents occurred and that this condition was accelerated and aggravated by the injuries so sustained. March 17, 1938, appellant filed a petition claiming compensation for such injuries, no agreement therefor having been reached as provided by Section
The first question presented for decision is: Where a claim for compensation has been litigated and an award has been made by the Industrial Accident Board, and the time for an appeal therefrom has expired, may a claimant reopen the matter on an application for a review of the award upon the ground the award constitutes a fraud "in law" in that he was not awarded as much compensation as he now claims, to-wit, compensation equivalent *133 to that allowed for the loss of an arm at the shoulder?
At the outset of a discussion of this question it must be kept in mind the statute (Section
To permit appellant to reopen this case would subject to attack every award and decision of the board heretofore rendered and thus create great confusion and uncertainty in that there never could be any finality to the awards and decisions of the Industrial Accident Board. As this court held in Zapantis v. Central Mining and Milling Co.,
The second question presented on this appeal is: Did the board err in finding "that claimant's condition is now substantially the same as it was on the 15th day of February, 1939, and that there has been no change in his condition since that time"? On the trial of the second application, September 18, 1940, appellant testified:
"Q. Mr. Bower, what work are you doing at this time?
A. I am superintendent of roads for Ada County.
Q. Now, Mr. Bower, relative to your physical condition, are you suffering any distress or ailments at this time?
A. No." (f. 6)
* * * * * * * *
"Q. You say you have discomfort in the right part of your abdomen?
"A. Well, that is the most. There is a little in both sides but I think that is due to the fact that the feeling hasn't come back in there yet or hasn't got correct yet. It just feels a little bit funny.
Q. It has never returned since you were operated on?
A. No." (ff. 16-17)
And in addition to that evidence supporting the findings of the board there is the testimony of Dr. F.A. Pittinger and Dr. Quentin W. Mack, as well as other facts and circumstances.
While the record shows that following the first accident *135 May 15, 1938, appellant's weight fell to 145 pounds, it further shows without dispute that on the trial of the second application for compensation due to an alleged change of condition, appellant had been fully restored to his former weight, to-wit, 185 pounds.
As we pointed out in O'Niel v. Madison Lumber and Mill Co.,
"The 1937 session of the legislature (Sess. Laws 1937, chap. 175, p. 288) amended sections 43-1408, 43-1409 and 43-1413, I. C. A. In addition to providing an appeal could be prosecuted from a final order or award of the Industrial Accident Board direct to this court, it provided that: 'Upon hearing [on appeal] the court may affirm or set aside such order or award but may set it aside only upon the following grounds, and shall not set the same aside on any other or different grounds, to-wit:
(a) That the findings of fact are not based on any substantial, competent evidence.
(b) . . . . . . .
(c) . . . . . . .
(d) . . . . . . .' "
This court is firmly committed to the rule that where, as in the instant case, the findings of the board are supported by substantial, competent evidence, the same will not be disturbed. O'Niel v. Madison Lumber and Mill Co., supra; Knightv. Younkin,
The order of the Industrial Accident Board must be, and hereby is, affirmed. Costs awarded to respondents.
GIVENS, P.J., AILSHIE, J., and BUCKNER, D.J., concur.
Concurrence Opinion
I concur in the affirmance of the order of the industrial accident board, but am not in accord with the following portion of the opinion: *136
"To permit appellant to reopen this case would subject to attack every award and decision of the board heretofore rendered and thus create great confusion and uncertainty in that there never could be any finality to the awards and decisions of the Industrial Accident Board."
Appellant has been accorded due process of law in this case. If he had not had due process of law, the effect of a decision on other cases, protecting him in his constitutional rights, should not, and would not, justify a denial of relief to him.
BUDGE, C.J., deeming himself disqualified, did not sit at the hearing or participate in the decision.