Clevenger v. Potlatch Forests, Inc.

I.R.C.P., respondent 56(e) ; knowingly pleadings. Rule Merrill and that made such v. Co., Duffy Construction 82 Idaho representations with false and fraudulent Reed 657; appellants 414, 353 P.2d Anderson v. Smith Fro express misleading intent of Idaho, Inc., zen 83 Idaho moneys in- Foods defrauding them of the P.2d ; 965. respondent volved stated appellants not

truth of the matter would Appellants’ assignments of error are moneys paid respondent. have meritorious. Appellants’ interrogatories answers judgment the trial court is re-

support in their allegations contained versed, and the cause remanded with in- instruments, complaint. to- amended Those appellants’ structions to reinstate amended gether respondent’s with the com- answer to complaint proceedings further con- plaint interrogatories, and his answers to expressed sonant with the views herein. respondent frame the issue as to whether appellants. Costs to perpetrated positive obtaining fraud moneys, e., by pretenses i. false false KNUDSON, McQUADE and McFAD- representations. Whether allegations of DEN, JJ., MARTIN, Judge, District plaintiffs’ complaint amended are true is not concur. a matter for decision the trial court on summary judgment the motion for on

pleadings. say actual, posi- it Suffice

tive and allegedly perpe- intentional fraud by respondent

trated having pleaded appellants, supported by their an- sworn CLEVENGER, Employee, Claimant- interrogatories, question swers to Enic C. of fact Appellant, presented resolved trial. Thus, the record here is indicative of evi- FORESTS, INC., Employer, and POTLATCH dentiary aspects as to regard facts in Compensation Exchange, Sure Workmen’s sharp dispute which exists. Reasonable Defendants-Respondents. ty, minds well differ as to the inferences No. 9123. may be drawn from the facts and Supreme Court Idaho. words, In circumstances shown. other pleadings, and answers to inter- affidavits, Jan. 1963. rogatories genu- is a herein show that there ine re- issue to a material fact which

quires summary judgment denial of appellant. Keeton, Lewiston, for

Paul C.

KNUDSON, Justice. Appellant, Clevenger, Enic C. suffered 9, 1955, an industrial August accident on employed by while respondent, Potlatch Forests, Inc. facts and circumstances the accident were considered Forests, in Clevenger Court v. Potlatch Inc., 82 Idaho in which an award in the case amount $1800.00 disability was affirmed. Following continued said accident except intermittently for employment of recurrences of periods when because 1,May pain to work. About he was unable 1960, his condition became worse and Lewiston, respond- Blake, Wynne for M. 27, finally on 1960. Fol- ceased work June ents. appellant sev- consulted the accident lowing and at times was conserva- physicians

eral therapy. with medication and treated tively 17, discomfort, and 1960, myelogram possibly with his August was work On days past. laminectomy opera- and later a he had in the That the taken two performed finds, appellant’s necessary, tion was was low back. He 5, by returned on December 1960. is best to work shown the ultimate event—(cid:127) regular work, the man returned to his appellant During summer performed pain. which he then without attempts to contact several the man- surety, ager respondent Workmen’s “Nevertheless, Clevenger’s election to Compensation Exchange, with a view operation unreasonably have the was his treatment. discussing need for further belated. He could have exercised such He was and unsuccessful efforts 1956, any election in or at time there- surgery performed authorization to have after within after the acci- four not obtained. recovery dent. His by herein barred Code, provisions Sec. Idaho January appellant On filed with apply which compen- form of Board a “Petition Industrial Accident sation, medical and including kindred for reimbursement medical benefits for expenses under Sec. 72-307.” procured by claimant, pursuant to Sec. 72- petition 307 I.C.” Under said Appellant’s assignments of error I recovery seeks ex- of medical and kindred identical, essentially are III wherein penses incurred him on account of med- isit contended that the Board erred in rul treatment, ical surgical together with that medical ing attention hospital subsequent July care or reimbursement in the expenses which in connec- were incurred attention, event failure supply medical surgery with the examination barred by are mentioned, allegedly hereinabove necessi- August tated accidental provides: I.C. § 72-307 9, 1955. From an order reimburse- denying employer provide “The an in- shall appeal ment this is taken. jured employee such reasonable med- specifications of error are directed ical, surgical attendance or or other to the “Ultimate Finding Ruling” treatment, hospital service, nurse and Board, copy follows: medicine, apparatus, as crutches and operation performed by required

“The Dr. requested by Bar- be (ff. 86-7), emergent employee anco not but injury, immediately -after elective man (f. 90). The was ambula- mid time reasonable' thereafter. tory 86). (f. He could continue to employer provide live If the fails payments may tion of under

same, injured employee do so section 72-321.” (Italics supplied) employer. All expense at of such treat- charges fees and other for pro- in was amended I.C. 72-607 § ment and and services application vide must that be made regulation subject to therefor shall be years within date of the acci- five liability by pecuniary The board. dent. However is not such amendment treatment and employer for the in- retroactive and since accident here required shall be other service herein year in lim- volved occurred the four prevail in charges as limited to such applies. itation Ziebarth Const. Wanke treat- community similar for same Co., 384; Kelley v. 69 Idaho 202 P.2d persons a like stand- injured ment Prouty, 54 Idaho P.2d 769. is living ard when treatment such presented requires The issue here a deter- person. In de- injured paid by for imposed limit mination whether the time charges are what fees and termining by applies 72-607 attendance reasonable, consider the board shall and provided by services I.C. for § payment afforded security increased (Italics supplied) act.” this only record that the award discloses made in this cause entered on Decem- was provides: 11, 1959, ber in the favor of any party application indemnity “On specific amount of $1800.00 the ac- the date partial disability. permanent back low four injury, on the causing Appellant’s cident petition specifically states conditions, the change ground of a pur- requested sought is reimbursement time, may but not oftener any board 72-307; allege suant to I.C. it does not months, any than in six review once any change of or seek modi- condition award, or re- agreement and fication of the award. ending, di- view an award make surgical petition No or other for medical compensa- increasing the or

minishing expenses -by appellant nor has been filed upon agreed previously or award- order, appealed one has other than the ed, and subject to the maximum mini- entered the Board relative act, this shall mum surgical expenses. appellant’s medical or rulings fact state conclusions its petition, upon the In law,’ immediately appellant’s send to the award, hearing $1800.00 parties copy of but i( is disability made, a commuta- apply section shall not present “change time claimant based that “At the conditions” stated repair previously surgery of in- Board had need of found claim- “surgically in his back.” ant juries injuries”. to a disc discs How- of his or healed ever, expenses surgical no medical were quotation from said following decision requested by petition, strongly the nor did the Board indicates that neither the Board expense. nor any as such phys- allow or disallow sum Court was convinced that the ical following quoted statement trouble in connection with which re- coupment findings contained in the and order disbursements for medical appealed convincing is that the treatment sought, here was from was result of a compensable not, proceedings, in the injury. Board did While referring to any 72-307, or denial I.C. allowance consider Court stated: § expenses appellant, incurred to- medical “Nor any do we find language therein wit: which impliedly requires employer original proceedings no “In the recov- provide treatment for undiscovered ery sought temporary was for total dis- physical troubles arising after all the ability compensation or medical ex- injuries known have been treated and penses, having previ- such matters taken care of.” adjusted parties.” between the ously While the furnishing to the in record contain a finding does not jured employee medical, surgical, hos to the extent that the Board as medical pital services and other required by attendance or appel- or care treatment was required by treatment as I.C. 72-307 accident to § lant date from payment be treated as compensation, findings surgery. his time of However is not subject agreement anof or award repeatedly consulted do indicate that he had which is contemplated provi under the There had been physicians specialists. 72-607, sions medically of I.C. as being subject § no was finding prior injury his surgically healed of modification on the change ground surgery. his change conditions. It ais as to the disabil ity injured employee which author Respondents Ziebarth v. cite Wanke izes the modification of an agree award or Co., supra, their con- supporting Const. as ment under Mahoney I.C. 72-607. v. specifically tention. In that case Court City Payette, 64 Idaho 133 P.2d 927. determining stated that it not therein The attendance statute, mentioned in how should be said the statutes here involved application construed. The in that case was I.C. required to be furnished § medical, surgical “immediately injury, and furnish him reasonable after an necessary or other to rehabilitate treatment time thereafter.” reasonable health, him and far restore possible as as presented was considered here The issue capacity. earning Koegler usefulness and v. Perry, Idaho Irvine Court Co., F. Idaho P.2d C. Davidson did not wherein Irvine By contemplated 728. said it is 72-307 § any change condition nor ask assert injured provided workman shall be an award as modification of medical, surgical reasonable and other with sought a determination but § period treatment and for such when pro- attendance right to medical of his reasonably such services or treatment are His condition vided in necessary. erred in concluding The Board permanent, re- time of reason, that, appel- other exclusive of This treatment. continual medical quiring lant’s to exercise an election failure to have appli- no held that I.C. 72-607 Court year period speci- surgery the four and that the Indus- situation cation right recovery fied in bars his hold- trial correct Accident Board was petition. under his ing: “ Appellant * * * contends that the Board erred four-year limitation in finding that “Clevenger’s election to have apply at- not to medical does thereof operation the unreasonably was belated.” 72-307, in a tendance, in sec. as defined From language the used it must be assumed disability, permanent case total and the appellant Board that felt should have 72-311, particularly in as defined sec. operation elected have the to an earlier con- when the. causes However, date. findings, of other view symptoms which tinuous recurrent do not construe said as finding we a conclu- require medical attendance.” part sion on the of the Board the disability Although surgery place did not take reason- a dis in the Irvine case was involved able time the injury, within the mean- after determining ability controlling was not ing of 72-307. The medical right to treatment. claimed disability not deter Hereafter we will refer the is nature or extent of “other right findings” above we injured employee’s mentioned but of an minative proper briefly consider it here provided for said 72- discuss the attendance what meant “within a necessity reasonable services it is the for such time” as primary used in is a the duties What controls. Among which an is to injured is to reasonable time within workman act employer to an depends agnosis. symptoms, however, performed subject, the Pain the parties situation suggestive impinge- the and the circum were nerve root ' performance. ment, attending (12 physicians only stances the but the could speculate 855) precise pathology. “reasonable means a A time” Am.Jur. * * * period period some Under is created because of over a urging justifiable what is two or three of his reason. In two determining relatives, finally reasonable time for claimant to receive Baran- visited Dr. co, supplies medical treatment and who surgically we had treated both look performance statute and the them. facts and circumstances Dr. Baranco in particular Generally laminectomy precisely case. a reason discovered patient’s able time symptoms.” as cause long would be condition necessity (Irvine treatment exists. Dr. by appellant Baranco was consulted Perry, supra.) and, foregoing we construe the necessity operation toAs finding, the first was doctor to discover specific Board made following finding: precisely appellant’s symptoms. cause of His physician operation attending necessary, “That and consultants was finds, examining specialists previously as the con- is best shown sulted, had ultimate event —the not found sufficient evidence to man returned to his work, make regular diagnosis they a like performed only which he could then — speculate upon pain.” precise pathology. without appellant finding indicates that submitted to following Board also find- repeated examinations, prior August but which we ing consider inconsistent with 17, 1960,no one knew certain what was operation conclusion that the was unreason- appellant’s symptoms. causing distress and ably belated: days The record shows that two sub- desirability “The of a diagnostic my- mitting to myelogram (by which his con- elogram possibility and the surgery correctly dition surgery diagnosed) the type some considered performed (laminectomy) and in less physician his attending and consultants than four months was back at specialists examining 195.6 and “feeling work fine”. matters were these discussed with plaintiff. Though complaints peti- appellant’s Since the Board denied symptomatic pain were improper of a herniated tion for an reason the order de- disc, physicians none nying had found reimbursement is reversed and the sufficient evidence to a make such di- cause remanded to the Board instruc- with futurity, designed in to determine whether the services kindred services

tions physical pleaded and of which reim- to alleviate a (the cost claims ailment determination; and prior a rea- ruled in such bursement) were furnished within determination, appealing specified without from sonable accident as such time charges and whether the limit 72-307 the time of I.C. 72-608 I.C. and after § § appel- expired, sought subsequently are reasonable. relief therefor Costs such ailment. proceeding lant. same for an necessarily ruling that Such connotes TAYLOR, McQUADE surgical McFAD- services award for medical DEN, JJ., concur. by regarded an award cannot be as 72-608. Board under I.C. § SMITH, (dissenting). Chief Justice authority Irvine v. Armed with the agree majority with I am unable 97, the ma- Perry, 78 Idaho 299 P.2d opinion. I entertain the view that the In- attempts to such rul- jority opinion justify denying Board’s Accident order dustrial theory first time that this is the ing on compensa- the medical and kindred claimant peti- has appellant’s that he since proceed- which he in this seeks tion benefits expenses of such attendance for tioned I be affirmed. correct and should ing is Appellant I.C. provided for § my reasons therefor. briefly delineate shall not seek a proceeding bar does in the opin- majority facts, in the forth set The changed conditions of modification repeated here. not be need ion in his favor. previous award stated, I.C. issue, is whether simply The majority opinion dis- author a the time limits 72-608 § distinguishable Perry is that Irvine v. cerns bene- to seek right pursue the claimant consideration, under but I the case by I.C. denied, provided fits, previously — — distinguish in its he does not it that feel services). and kindred (medical 72-307 § permanent dis- Total perspective. true case, effect, that involved in the ability Irvine rules, in opinion majority it is not the case here. How- 72-608 whereas I.C. imposed § limit the time majority ever, claim- view is to the effect where inapplicable I.C. disability is not nature extent prior ant, determination here, injured employee’s an determinative proceeding, obtained the same attendance right him compensate specific indemnity to necessity it is the de- but disability, but was language that controls. No services for medical nied an award support symptoms in the Irvine case to tinuous or recurrent which contained ” case, Moreover, position. require Irvine in the medical attendance.’ petitioned previously had never Irvine holding predicated upon This was a like concerning his Board for a determination by determination based its Board compensation benefits to injury and the finding that the nature of dis- Irvine’s entitled; had he was and the which ability required continuous medical treat- in re- not therefore made a determination ment. I construe this language to mean premises. rights in the gard Irvine’s to says specifically e., more, what it and i. no four-year inapplicable that the limitation is previously here, appellant In the case had right to to receive medical attendance pro- Board, in same been before the this permanent in a case of total and disability compen- rights to ceeding, and had his 72-311, in particularly as defined I.C. § in sation an award made determined it is where determined the Board that compensate indemnity specific favor for to nature extent injury require disability; al- partial permanent him services, continuous medical and the Board so, sur- he had claimed accordingly. an makes Moreover the condi- futurity, alleged disc gery, in for an provisions of ap- 72-608 were not § hack, specific claim tion in his plicable preclude any recoveries accord- denied, denial from which Board had Irvine, ed recovery since no such had been Thus, appeal appeal. appellant not did determined; previously was and Irvine statute, ger- and is became seeking original determination and not mane, precluded appellant further changed review on conditions under I.C. herein. pursuing remedy which he seeks § dis- support position are later Facts to cussed herein. clearly In the case at bar indi- the facts appellant’s cate that injury could not be

In the Irvine case stated: the Court not perma- classified as “total and “The Industrial Accident Board nent” under I.C. 72-311. The record dis- ‘ * * * holding: correct closes that the award entered December four-year 72- 11, 1959, limitation thereof appellant [I.C. favor of was for a apply attend- specific does not medical indemnity compensate him 607] ance, in a permanent equivalent defined sec. disability disability, hip, case total and leg loss of one at the 40% 72-311, particularly amounting week, defined sec. per at weeks $25 injury causes aggregating when the con- $1800. present past or has a disc opinion is stated: majority it

In the operation time, optimal has time for petition surgical for medical or “No other past.” long nor since expenses has been filed appealed any order, than the one has other pro- original hearing in this first ”* * * by the Board from been entered subject ceeding out of this same grew sub- expenses are the which to the relative matter, at before the Court Board regard ject appellant’s petition. In that of appeal, hearing, involved on this the second pro- of point specifically the record I to to-wit, injury, personal appellant’s covered Accident ceeding. Industrial The Inc., Forests, Clevenger v. Potlatch advisability surgery and of did consider after the Idaho decided as compensation in futuro elements of petition upon appellant’s hearing; first in the determination regards surgery, grounded, al- hearing first was which the compensation in its appellant’s right disability “partial that he a which leges has 11, 1959, The Board award. December pres- in and that at the unknown amount is Kes- opinion Alfred R. adopted the Dr. time, surgery in need claimant is ent optimal time that and concluded sler injuries a or discs repair disc for refer to passed. I also operation had for supplied.) At (Emphasis in his back.” herein, -H”, part record a “Exhibit Board, Dr. hearing that first before Kessler, dated report Dr. ais which testified, stating his estimate Kessler report sets forth This September 1959. disability permanent partial of claimant’s appellant’s regarding history events a at leg of one equal to the loss 40% report contains injury. The accident surgery not hip, opinion in his that exami- concerning the doctor’s information condition, and claimant’s recommended appellant. This and treatment nations “optimal specifically, the time more in at evidence report also introduced adopted past.” operation had The Board the Board hearing before views, shown is as Kessler’s Dr. appellant’s in culminated which findings excerpt the Board’s following from award; disability from fact: Forests, Inc., employer, the' Potlatch Diagnosis. Compensation “Neurological Claimant’s surety, Workmen’s pain clinically symptoms of subjective Clevenger claimant Exchange,'appealed, but Forests, (f. .76). Definite neuro- Clevenger Potlatch not. demonstrable did indicating nerve root ir- signs logical Dr. Inc., P.2d 396. Idaho arising probably right, following report ritation contains Kessler’s interspace. L Whether this disc 4—5 patient has language: “If this protrusion actually represents appellant issue; such did present scarring appeal disc at the time or from holding. not such adverse He pro- formerly precluded root from a the nerve therefore raising issue, disc cannot be truding appeal determined. he because failed 72-608; thirty days by I.C. § Opti- “Surgery Not Recommended. not does seek modification of such operation mal time for has long since previous grounds determination on passed. operation from an Relief now conditions, changed four-year hence the questionable.” (Transcript, No. case period precludes limitation of I.C. 8867, p. 42). previous him from modification of the de- A hearing review of the record of that first on changed termination conditions. appellant’s medical and sur- discloses pleadings In the second hearing , gical needs were considered the Board —the — respondents’ appeal, involved on this prior final determination. its their answer set forth as an affirmative Board concluded sur- plea bar, prior defense and de- gery was not warranted. termination of the issue involved at opinion points re- majority to the hearing, bar, first the proceeding at mark contained in the record the Board as follows: language here, the hearing, of that “In the second re- “That heretofore proceeding (first hearing) no on December * * * covery the sought for medical Industrial Accident Board previ- of expenses, Idaho having such matters been of State made and en- True, ously parties.” tered in above adjusted between the entitled matter its including majority opinion, as award therein Findings indicated in the of then, reciting first Fact therein paragraph at the did not time Findings in- hearing, expense of said entitled consider medical ‘Medical Kessler, M.D., on Examination Alfred R. at hearing volved the later second 4, 1959,’ September following: appeal, simply later ex- because these penses time had not incurred at “ ‘Surgery Not Recommended. hearing. of the first What was involved Optimal operation time for has long appel- at that time was the issue whether passed. opera- since Relief from an surgery lant was entitled to alleviate questionable.’ tion now alleged intervertebral disc condition pleaded; concerning that issue evidence “The fur- Accident Board Industrial was introduced and the relief Board denied ther in paragraph found 13 entitled Disability’ reciting

‘Partial Permanent court shall limited review of testimony questions its conclusion from the of law.” Dr. Alfred R. Kessler as follows: provisions of such section of the stat- preclude appellant “ ute from attempting to ‘He, quite evidently the test challenge prior the Board’s determination physical impairment, estimated of December 1959. Clevenger’s dis- possible ways ability equal of the loss two which Cleven- 40% ” hip.’ leg ger challenged

of a at the could have the Board’s at the award made conclusion of orig- additionally And as an affirmative defense hearing, (1) by inal are appealing to this pleaded respondents in bar the limitations days thirty copy Court within of such language 72-607 in as follows: I.C. § parties and, been sent to the had by seeking a (2) modification on change years, twenty- five “Five months and provided in I.C. conditions as days elapsed August three have since remedy, e., pursuing Time for either i. 9, 1955, injury. the date of claimant’s appeal, application modification on or lapse By reason of said time said changed conditions, expired as of petition for additional petition Clevenger time filed his when by way benefits of reimbursement of which furnished the basis of second expense incurred claimant medical present appeal. hearing and provisions under is barred of Section of the Idaho Code and 72-607 provides: 72-607 Supreme holding of the of this Court application by any “On pajty v. Ziebarth Wanke Construc State four the date 64, 202 384.” Co., 69 Idaho injury, causing the on the accident conditions, ground change provides part: time, may any board but not oftener months, “Appeals than review from board. —An award once in six fraud, agreement award, on such in the absence of shall re- the board or ending, di- and conclusive between the view an award be final make except compensa- increasing parties, minishing in section days previously agreed upon or award- unless within after a tion ed, subject or mini- parties, to the either maximum copy has been sent the to act, Supreme provided in and shall party appeals the mum this to Court. rulings fact and appeal jurisdiction the of said state its conclusions On such plied law, immediately change grounded send modification on and to award, this copy ap- but parties a conditions. The denied the Board plication. on, apply Zapantis to a commuta- section shall not Later sec- a application payments again section ond tion of under 72-321.” and the Board found that change there nowas in conditions. On Larson, 754, In Mell v. Idaho however, application, second employee injured awarded ordered withdrawn and award compensation. Eight months he later Zapantis compensation. awarded additional sought additional appeal On therefrom this Court held the ground change in conditions. This Court improper, Board’s action language to change holding affirmed the Board’s that no as follows: proved, saying: condition been had are very “We confronted in the out- “ * * * Hearing question on the set of matter, our consideration change in is un- condition authorized problem with the as to whether or not der section I.C.A. [now the original April 17, award of 72-607], purpose allowing for the judicata; likewise, res became and ending, make an board January 30, 1936, whether order of diminishing, increasing compensa- or judicata became res change as to previously agreed upon award- or having in conditions or not having oc- an award ed. Such under that section up that curred time. the statute entirely is made on a ‡ * * # * * change in conditions occurring after previous award, Board, the date of the having originally “The found condition, change which if for the change held ‘no condi- worse, directly occurred, related juris- tions’ had was without resulting accident diction to vacate the award which had final, the first award was based. thereupon The board become hear then and the courts are to a restricted de the case novo and enter new and only consideration a condition aris- different award if no award ever * * * ing award.” 763- (pp. made. after former sup- p. 253) (Emphasis 36 P.2d must litigation “There be an end plied.) if, years but can not be attained Zapantis Mill. In Min. Central & judgment Idaho had been entered and Co., 113, Zapantis final, 106 P.2d Idaho personnel has become ap- had obtained an changed, award. Thereafter court board has 208 statutory reopened passed quoting pertinent provi- can be and After case the

whole sions, 43-1407, I.C.A. 43-1107 and now upon anew.” §§ the Court said: I.C. §§ Zapantis subsequently sought to Claimant pointed “It should out be here the aside, original award set which have does not show record claimant’s in- decision, Zapantis v. Cen- resulted juries required continuous medical Co., 498, 64 Min. & Mill. Idaho Idaho tral treatment and care from the date 154, the Court wherein stated: 136 P.2d accident, apparently as was true “ * * * judicata of res The doctrine Co., Flock v. C. Fruit Palumbo 63 J. questions might all applies to 220, P.2d Idaho 118 707. On con- raised, all as well as to have been trary, record shows that the Board Joyce raised. questions which were surgically found ‘was claimant healed Co., Irrigation 35 Ida Murphy Land & injuries,’ though left in a condi- 241; 549, Boise 208 P. South Water ho permanent partial disability. So 409, McDonald, 296 P. Idaho 50 v.Co. unnecessary that it seems to construe ei- Smith, supra 591; Bowers v. [Idaho quoted ther or both of the above sec- 118 P.2d 737].” do, they tions with reference to whether Co., Ida 69 In Const. Wanke v. Ziebarth together when construed sing- either an 64, 384, ho 202 P.2d the Board ly, provide for continuous treatment award in favor claimant for regardless length of the of time involv- years after disability. Five remains for ed. There consideration seeking accident, petition claimant filed regardless contention disability grounded permanent” “total and may elapse time which between the date Additionally, he change in conditions. injuries sustained develop- are and the kin sought for medical reimbursement physical (even troubles ment of later page 78, expenses. 202 P.2d page dred At bar, where as case at the in- 393 the Court said: jured employee immediately after given surgery, hospitaliza- accident May question: now to

“We come treatment), tion and medical [whether] money ex- recover claimant Wanke paid for ad- expense incurred or out care hospital and medical pended for medical, surgical and other ditional (after the last award recovered, so on treatment be 10, application there- April 1946) on an ad infinitum. 6, November the Board for filed with five, 43-1107, su- “In section 1947, construing than more pra, 72-307], it must injured?” accidentally he was date [now require even under that expressly (Em- it construction.” conceded does not phasis employer injured em- provide supplied.) an ‘medical, ployee surgical or other with further view that the ma- I entertain under attendance or treatment’ so, opinion, saying jority without overruled 79, 202 P.2d (page circumstances.” Zapantis v. Central Idaho Min. cases page 393). Co., P.2d & Mill. Idaho Co., circumstances,” Idaho re- v. Ziebarth Constr. since it Wanke “Under such regards rulings of must refer likewise fers period cases, those hereinbefore referred to and four-year limitation statutory to its period after which, expiration discussed. of such after to a precludes recovery injury, of

the date medical, Furnishing surgical and hos of expenses and kindred of medical claimant pital employee injured must services to an exactly infinitum,” identical as is “ad regarded payment compensation. be of Clevenger herein. what seeks Wright State ex rel. C. C. Anderson Co. v. Emmett, 237; 400, of of language 65 Idaho Continuing with 145 P.2d 330, Nottingham, v. Gifford 68 Idaho 193 Court : 831; 132, Perry, P.2d Irvine 78 Idaho v. “ * * * any language find Nor do we 97; W. Newman Co. v. Industrial J. impliedly requires an therein Commission, 353 Ill. 187 N.E. un- employer provide for treatment 1188; Eclipse A.L.R. Pfahler Pioneer v. physical arising troubles discovered Division of Corp., Bendix Aviation 21 N.J. injuries have been all the known after Mangieri A.2d 647. See we care of. Nor do treated and taken Spring N.J.Super. 32, Tool Co., 161 A.2d any requirement construing such find 765, 767, holding that “medical treatment” now secs. 43-1107 and [I.C.A. part payment compensa of future supra, to- I.C. 72-307 and §§ 72-607] meaning within the aof statute which gether, unless these two when sections required petition compensation to be for together construed to in- be construed filed years within two from the of last date medical, surgical clude at- and other payment compensation. ‘compensa- tendance and treatment as tion’, within the meaning of sec. 43- Returning aspect to the Irvine 1407, supra. Assuming, but decid- not case wherein the Industrial Accident Board ing, these sections should so con- be determined and this Court that in the held strued, would not aid claimant in recov- disability permanent case total re- and ering that his claim quiring would barred continuous medical and kindred limitation, of an provides for review four-year statute services point years I award at four application, time within has no causing ground accident following: change in conditions. (1) No determination award, In and case period four of determination during the Irvine case case, pro- such interested as in an injury. The the Irvine from and party, employer surety, be- as the original determination ceeding was for ing payment liable for right com- to receive concerning Irvine’s benefits, application four could make benefits, particularly and pensation medical years from the of the accident caus- services, adjudication date and kindred ing injury, review of the award period during which was entitled and ground for modification on the thereof admitted the same. It was receive change found, Ir- conditions. parties, although the Board disability. permanent vine suffered total The Irvine case was not a review on ground changed Board, grew in its conditions. It Accident out Industrial (2) The of an original application for an decision, total award of Irvine suffered found that benefits for permanent total and require disability disability and would expenses of continuing during reasonable services and kindred medical necessary contin- medical and of his kindred life because services. remainder of his symptoms occasioned uous and recurrent The fact the Irvine determination injuries. resulting accident and was made years more than four after the injury immaterial, date of the is thereupon awarded Irvine inasmuch Board as it was an original determination, a total dis- compensation as for not the result of any application period for re- of 400 weeks ability, for being the ground on changed view of conditions. The the accident at of after the date from and law, 72-607, self-executing. Upon I.C. rate, the remainder § and for the maximum entry determination, rate, original of such 72- the I.C. §§ his life at the minimum of four-year period him on for review awarded 72-311; further having expired, changed and kin- conditions the de- necessary medical reasonable subject to on condition was not review termination of on services account dred This rea- conditions in the future. changed of suffered as result appears applicable inasmuch as the soning pages (See duration of his life. away the then ex- appeal amendment did with on Transcript Record of the in the isting party apply for modifica- right aof case.) the Irvine ground change on pointed out, tion in conditions at fore original an deter- time, by any limiting period mination, such of time which resulted in a continuing years to four from date of the accident. award. law, existing regards Under con- In brief summary: (as tinuing case), award in the Irvine (1) The Clevenger’s issue of asserted four-year expiration period right to surgery to alleviate the interverte- 72-607, any right apply I.C. modi- § bral condition, disc pleaded which he in his expires. having A fication claimant a con- petition, first adjudicated Board may tinuing benefits receive such at the conclusion of the first hearing, and is attempted modifi-

without interference of so shown part as a record of period of expiration cation of the proceeding. four of accident. date (2) Clevenger appeal did not from such appears legislatively Such to have been adjudication. intended, at the inasmuch as I.C. § T7, enactment, ch. time of S.L. its (3) adjudication Such has become and is 1931, 56, S.L. amendment in until its § judicata, res virtue such (a) failure ’31, a limitation ch. not contain did § appeal, expira- and (b) could application within which time statutory four-year limitation in con- change ground be on the period from the date of Clevenger’s injury, section of ditions. Until before Clevenger sought the same relief application provided: “On statute the filing of his petition, second assuming in con- change ground of a party on the sought that he modification of the Board’s * * etc. ditions, Board previous determination, on ground lim- 1931 amendment Therefore change in conditions. I.C. 72-607. application time, which an ited the (4) The Industrial Accident prop- Board made, to changed conditions could erly to Clevenger denied relief on such accident, years after the date four petition. award, continuing aft- of a prohibits review four-year period. expiration of the er order the Industrial Accident Ir- not involved question was This denying relief to Cleven- proceeding, as hereto- case since that vine ger should be affirmed.

Case Details

Case Name: Clevenger v. Potlatch Forests, Inc.

Court Name: Idaho Supreme Court

Date Published: Jan 8, 1963

Citation: 377 P.2d 794

Docket Number: 9123

Court Abbreviation: Idaho