Grow v. Industrial Commission

140 P.2d 321, 104 Utah 333, 148 A.L.R. 316, 1943 Utah LEXIS 71

• Court: Utah Supreme Court
• Decided: August 11, 1943
• Docket: No. 6452.
• Status: Published

Opinions

WADE, Justice.

On March 24, 1935, applicant Claude Crow, while working as a tool dresser on a drilling rig for H. M. Robinson at Tooele County, Utah, suffered an injury to his back while lifting heavy machinery with a crowbar. He was unable to continue work and shortly thereafter he was brought to Salt Lake City, where he was hospitalized a number of times and has been under medical care most of the time up to the date of the hearing. At the time of the hearing he had not returned to work nor had he performed any services for remuneration. The State Insurance Fund was the in surance carrier and it, apparently without any decision of the Industrial Commission, voluntarily paid the medical and hospital expenses and $16 per week to applicant for a period of six years from the date of accident. At the end of that time the State Insurance Fund took the position that applicant was not totally and permanently disabled and discontinued the payments and at applicant’s request the Industrial Commission granted a hearing thereon.

The matter was heard on June 19, 1941. Frank A. Jugler was the only commissioner who attended the hearing. On June 30, 1941, Commissioner Jugler ceased to act as a member of the Commission and did not participate in the decision. The Commission rendered its decision on August 14, 1941, denying further compensation on the ground that applicant was not totally and permanently disabled and applicant brings the matter to this court.

Defendants were clearly not estopped from claiming that applicant was not totally and permanently disabled by reason of having paid $16 per week for six years because he did not change his position or relinquish any right in reliance thereon. Also the Commission having made no previous decision the question of whether it can change a former decision without a showing of a change of condition is not involved in this case. Admittedly applicant’s disability, to the extent that he was disabled at the time of the hearing is permanent. The evidence tends to show that he will probably get worse but there was no evidence that he will get better.

The only question on the proof is whether there was substantial evidence from which the commission could reasonably find that the applicant was not totally disabled There was testimony to the effect that applicant had suffered only a bodily functional disability of from 25% to 30% and it is argued that he was therefore not totally disabled. This does not necessarily follow. The fact that a man’s back retains 75% of its normal functions does not prove that he has the strength or endurance to do 75% of a days work. A person may retain all the normal bodily functions of his organs and still be so weak or be in such pain that he would be totally disabled from obtaining remunerative employment. He may also be physically able to do certain kinds of work and still be unable to obtain such employment on account of lack of training or skill in such fields. In either of these events he would be totally disabled.

The testimony here went much further than merely to show applicant’s lack of functional disability. Three doctors testified that in their opinion he is able to perform ordinary manual labor, specifically mentioning carpenter work, farming, plowing and harrowing and digging with pick and shovel in mines. They did concede, however, that he could not do the most heavy lifting or the most difficult labor. From the kind of work these doctors testified he could do, they clearly indicated that they did not agree with applicant’s description of his condition nor with the description of his condition given by the doctors who testitfied in his favor. If he is capable of doing this kind of work then he would have no trouble in obtaining remunerative employment, and he is not totally disabled. The evidence was therefore sufficient from which the commission could have reasonably so found.

This case, however, must be reversed for another reason. Commissioner Jugler, the only commissioner who heard the evidence and saw the demeanor of the witnesses while testifying did not participate in the decision, and as far as the record discloses, he made no findings, either written or oral which made his opinion of the evidence available to the commisison in making its decision. Where, as in this case, the evidence is not entirely documentary, and there is a sharp conflict in the evidence, the credibility or lack thereof, of the witnesess is of paramount importance. Only a person who actually hears and sees a witness while testifying is in a position to determine the weight or credibility which should be given to such testimony. The opinion of such a person is a necessary factor in making any findings of fact. The situation is analogous to that of a judge who has tried a case, sitting without a jury, and whose office is either terminated or he resigns or dies before he has made findings of fact and conclusions of law. As stated in Case v. Fox et al., 138 Or. 453, 7 P. 2d 267, page 268,

“ * * * we can readily perceive that a successor to a trial judge who was removed by death before he had announced any findings of fact, or had in any other manner pronounced judgment upon the cause, could not render findings of fact * * *”

the reason being that the issue presented requires a weighing of testimony. See also, Labont v. Lacasse, 78 N. H. 489, 102 A. 540; McAllen v. Souza, 24 Cal. 2d 247, 74 P. 2d 853; Bahnsen v. Gilbert, 55 Minn. 334, 56 N. W. 1117.

There is a conflict in the authorities as to the power of a judge other than the one who tries the case to render a judgment or make a decision thereon. 30 Am. Jur. 750, Sec. 38.

Where there is a conflict in the testimony, and the weight and credibility to be given testimony of the various witnesses is the determining factor, in order to accord a “full hearing” to which all litigants are entitled, the person who conducts the hearing, hears the testimony, and sees the witnesses while testifying, whether a member of the board, or an examiner or referee, must either participate in the decision, or where, at the time the decision is rendered, he has severed his connections with the board, commission or fact finding body, the record must show affirmatively that the one who finds the facts had access to the benefit of his findings, conclusions and impressions of such testimony, by either written or oral reports thereof. This does not necessarily require that all of the commisison-ers must be present at the hearing, or even that the one hearing the evidence must concur in the result, but his opinion on the testimony must be available to the commission in making its decision. This is in harmony with the law on this subject regarding commission and quasi-judicial triers of fact in the Federal Courts. See 1 Vom Bauer’s Federal Administrative Law, 318 to 322, section 310 to 313; United States ex rel. Ohm v. Perkins, 2 Cir., 79 F. 2d 533; United States v. Nugent, 6 Cir., 100 F. 2d 215; Morgan v. United States, 1936, 298 U. S. 468, 80 L. Ed. 1288, 56 S. Ct. 906; Id., 1938, 304 U. S. 1, 58 S. Ct. 773, 82 L. Ed. 1129.

The showing here does not meet these requirements and the case is therefore reversed and remanded for a rehearing, with costs to applicant.

McDonough, j., concurs.