CROCKETT, Justice:
Mollerup Van Lines and its insurer, Liberty Mutual Insurance Company, seek reversal of a supplemental order in favor of Tyven Adams for workmen’s compensation and surgery for his injured back.
It is not disputed that the applicant Adams suffered an accidental injury while working for Mollerup. In attempting to lift a truck wheel on to its axle, he slipped and something “popped” in his back, causing him to fall to the ground. Subsequently, upon a hearing before the Commission, and on the basis of the report of a medical advisory board, he was given a lump sum payment of $374.50 for permanent disability of 5% loss of bodily function.
The condition of Mr. Adams’ back later became so bad that he was unable to work, and his doctor recommended surgery. He filed an application for workmen’s compensation against his subsequent employer, Wasatch Construction Company., At the hearing on this application, when the evidence seemed to indicate that his condition and disability was really attributable to the Mollerup accident, the Commission ordered that Mollerup and its insurer, Liberty Mutual, be brought in as parties, which was done. At the further hearing, upon being [238]*238questioned why he had not had the necessary operation to fix his back, he responded that he had been waiting for “this insurance.” Upon the basis of the evidence and the medical panel report, the Commission found that the condition of his back was the result of the Mollerup injury. It ordered that the plaintiff pay Mr. Adams “temporary total disability from January, 1963, until he is released by his physician,” and that he be proffered the necessary surgery. It is this supplemental order which the plaintiffs attack.
The ordinary rule of res judicata is not applicable to the instant proceeding. Inherent in the act is recognition that industrial injuries cannot always be diagnosed with absolute accuracy, nor their consequences predicted with complete certainty. Section 35-1-78, U.C.A.1953 provides that “the powers and jurisdiction of the Commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings, or others with respect thereto, as in its opinion may be justified.” Accordingly, even though the Commission has made an award, if there later develops some substantial change or new development with respect to the injury than was known or was contemplated at the time of the original award, upon proper proceedings the Commission can make such adjustment as is just and reasonable and in conformity with the act.1
The difficulty which confronted the Commission, and which has now come to us, is that the applicant Adams has had two injuries to his back since the Mollerup accident. One while working at the Iver-son Service Station in lifting a battery; and the other while working for the Wasatch Construction Company when he fell off the tongue of a scraper. It ■ is the plaintiffs’ contention that the applicant’s present disability is attributable to these later accidents rather than to the Mollerup incident as found by the Commission. Whether it could have found that either or both of the subsequent injuries were the cause of his present condition and disability, is not our concern.
The question of critical and controlling importance is whether there is a reasonable basis in the evidence to support the finding that his disability resulted from the Mollerup incident. In addition to the testimony of the applicant himself, which tends to provide a factual basis supporting the decision, there is the report of the medical panel.
Pursuant to Section 35-1-77, U.C.A.1953, the Commission appointed the panel, consisting of Dr. Boyd G. Holbrook, Chair[239]*239man, Dr. S. W. Allred, and Dr. L. N. Osmond. The panel report stated the conclusion that:
This man’s present condition represents a continuation of the injury of April 9, 1958, [The Mollerup incident] and the subsequent minor accidents have not been significant in the overall progress of his condition since that injury.
It is true that under the provisions of that section when the report is challenged it “shall not be considered as evidence in the case except insofar as it is sustained by the testimony admitted.” It therefore becomes essential to determine whether the'testimony of Dr. Holbrook “sustained” the medical panel report or repudiated it. On that question the following excerpts are pertinent:
“BY MR. PUGSLEY: (Counsel for Mr. Adams)
“Q. Dr. Holbrook, your panel was aware of the 1958 [Mollerup] and the 1960 [Iverson] injuries as well as the 1962 [Wasatch] injury at the time of your examination of Mr. Adams, was it not?
“A. Yes.
“Q. And you were also aware of this apparent arthritic spurring that showed in the later X-rays when you made the examination ?
“A. Yes.
“Q.' Now notwithstanding that awareness, etc., the conclusions that are shown on the last page of the panel’s report, particularly No. 1: ‘This man’s present condition represents a continuation of the injury of April 9, 1958’ was made by you ?
“A. That’s correct.
“Q. You referred to: ‘That subsequent minor accidents have not 'been significant.’ Was that the conclusion of all of the participants in the panel?
“A. It was.
“MR. PUGSLEY: I believe that’s all.
“BY MR. SNOW: (Counsel for Mol-lerup and Liberty Mutual)
“Q. All right. Are you trying now to say that if this man had had no incident at Mick Iverson’s, and had been going about a job we’ll say as sedentary as mine, and had had no injury at Wasatch, where he went off the Caterpillar, are you saying to us now that this man would today be in the same condition that he now is, after having had these injuries ?
“A. I would say that he most likely would be in similar condition. I can’t say for sure that it would be the same. But this is a degenerative process that has been slowly progressing. His condition has been gradually getting worse both radio-graphically and symptomatically, and this would have happened, — in [240]*240the opinion of the panel — irrespective of these two occurrences.”
It will be noted from the context that “these two occurrences” refer to the incidents at Iverson’s Service Station and The Wasatch Construction Company. It is but fair to concede that on cross-examination the doctor did admit that the subsequent accidents presented some difficulty in determining the cause of the applicant’s disability. However, even though he admitted this difficulty, he did not say that it was impossible.
In appraising the effect of this evidence, it is well to keep in mind that this proceeding is different from an ordinary lawsuit in that it is not an adversary proceeding. It is purposed to be an impartial inquiry as to whether the applicant is eligible for workmen’s compensation. This is especially so as to the panel report and the testimony of Dr. Holbrook, both of which resulted from appointment by the Commission to make an independent investigation and report for its guidance.
Free access — add to your briefcase to read the full text and ask questions with AI
CROCKETT, Justice:
Mollerup Van Lines and its insurer, Liberty Mutual Insurance Company, seek reversal of a supplemental order in favor of Tyven Adams for workmen’s compensation and surgery for his injured back.
It is not disputed that the applicant Adams suffered an accidental injury while working for Mollerup. In attempting to lift a truck wheel on to its axle, he slipped and something “popped” in his back, causing him to fall to the ground. Subsequently, upon a hearing before the Commission, and on the basis of the report of a medical advisory board, he was given a lump sum payment of $374.50 for permanent disability of 5% loss of bodily function.
The condition of Mr. Adams’ back later became so bad that he was unable to work, and his doctor recommended surgery. He filed an application for workmen’s compensation against his subsequent employer, Wasatch Construction Company., At the hearing on this application, when the evidence seemed to indicate that his condition and disability was really attributable to the Mollerup accident, the Commission ordered that Mollerup and its insurer, Liberty Mutual, be brought in as parties, which was done. At the further hearing, upon being [238]*238questioned why he had not had the necessary operation to fix his back, he responded that he had been waiting for “this insurance.” Upon the basis of the evidence and the medical panel report, the Commission found that the condition of his back was the result of the Mollerup injury. It ordered that the plaintiff pay Mr. Adams “temporary total disability from January, 1963, until he is released by his physician,” and that he be proffered the necessary surgery. It is this supplemental order which the plaintiffs attack.
The ordinary rule of res judicata is not applicable to the instant proceeding. Inherent in the act is recognition that industrial injuries cannot always be diagnosed with absolute accuracy, nor their consequences predicted with complete certainty. Section 35-1-78, U.C.A.1953 provides that “the powers and jurisdiction of the Commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings, or others with respect thereto, as in its opinion may be justified.” Accordingly, even though the Commission has made an award, if there later develops some substantial change or new development with respect to the injury than was known or was contemplated at the time of the original award, upon proper proceedings the Commission can make such adjustment as is just and reasonable and in conformity with the act.1
The difficulty which confronted the Commission, and which has now come to us, is that the applicant Adams has had two injuries to his back since the Mollerup accident. One while working at the Iver-son Service Station in lifting a battery; and the other while working for the Wasatch Construction Company when he fell off the tongue of a scraper. It ■ is the plaintiffs’ contention that the applicant’s present disability is attributable to these later accidents rather than to the Mollerup incident as found by the Commission. Whether it could have found that either or both of the subsequent injuries were the cause of his present condition and disability, is not our concern.
The question of critical and controlling importance is whether there is a reasonable basis in the evidence to support the finding that his disability resulted from the Mollerup incident. In addition to the testimony of the applicant himself, which tends to provide a factual basis supporting the decision, there is the report of the medical panel.
Pursuant to Section 35-1-77, U.C.A.1953, the Commission appointed the panel, consisting of Dr. Boyd G. Holbrook, Chair[239]*239man, Dr. S. W. Allred, and Dr. L. N. Osmond. The panel report stated the conclusion that:
This man’s present condition represents a continuation of the injury of April 9, 1958, [The Mollerup incident] and the subsequent minor accidents have not been significant in the overall progress of his condition since that injury.
It is true that under the provisions of that section when the report is challenged it “shall not be considered as evidence in the case except insofar as it is sustained by the testimony admitted.” It therefore becomes essential to determine whether the'testimony of Dr. Holbrook “sustained” the medical panel report or repudiated it. On that question the following excerpts are pertinent:
“BY MR. PUGSLEY: (Counsel for Mr. Adams)
“Q. Dr. Holbrook, your panel was aware of the 1958 [Mollerup] and the 1960 [Iverson] injuries as well as the 1962 [Wasatch] injury at the time of your examination of Mr. Adams, was it not?
“A. Yes.
“Q. And you were also aware of this apparent arthritic spurring that showed in the later X-rays when you made the examination ?
“A. Yes.
“Q.' Now notwithstanding that awareness, etc., the conclusions that are shown on the last page of the panel’s report, particularly No. 1: ‘This man’s present condition represents a continuation of the injury of April 9, 1958’ was made by you ?
“A. That’s correct.
“Q. You referred to: ‘That subsequent minor accidents have not 'been significant.’ Was that the conclusion of all of the participants in the panel?
“A. It was.
“MR. PUGSLEY: I believe that’s all.
“BY MR. SNOW: (Counsel for Mol-lerup and Liberty Mutual)
“Q. All right. Are you trying now to say that if this man had had no incident at Mick Iverson’s, and had been going about a job we’ll say as sedentary as mine, and had had no injury at Wasatch, where he went off the Caterpillar, are you saying to us now that this man would today be in the same condition that he now is, after having had these injuries ?
“A. I would say that he most likely would be in similar condition. I can’t say for sure that it would be the same. But this is a degenerative process that has been slowly progressing. His condition has been gradually getting worse both radio-graphically and symptomatically, and this would have happened, — in [240]*240the opinion of the panel — irrespective of these two occurrences.”
It will be noted from the context that “these two occurrences” refer to the incidents at Iverson’s Service Station and The Wasatch Construction Company. It is but fair to concede that on cross-examination the doctor did admit that the subsequent accidents presented some difficulty in determining the cause of the applicant’s disability. However, even though he admitted this difficulty, he did not say that it was impossible.
In appraising the effect of this evidence, it is well to keep in mind that this proceeding is different from an ordinary lawsuit in that it is not an adversary proceeding. It is purposed to be an impartial inquiry as to whether the applicant is eligible for workmen’s compensation. This is especially so as to the panel report and the testimony of Dr. Holbrook, both of which resulted from appointment by the Commission to make an independent investigation and report for its guidance. Therefore, neither party is necessarily bound by any statement or admission made either in the report, or in the testimony of the doctor. It was both the duty and the prerogative of the Commission to view his entire testimony together and it could believe those statements which impressed it as being true,2 even though there may have been some seeming contradictions in other parts of his testimony.3 It is our opinion that this testimony looked at in that light could reasonably be regarded by the Commission as sustaining the report of the medical panel, which in turn justifies the decision.
We are sensitive of the fact that due to the continuing jurisdiction of the Commission as above set forth, there is danger of unfairness and injustice in imposing liability upon an employer for a supplemental award based upon a prior injury such as this. The only safeguard against this danger is the prudence and caution of the Commission, which we fully agree should be exercised to a high degree in regard to such situations. Nevertheless, it is firmly established that the Commission has the exclusive prerogative of judging the credibility of the witnesses, appraising the evidence and finding the facts, which must not be disturbed if there is a reasonable basis therein to support them, as we [241]*241have concluded exists here.4 (All emphasis added)
The award is affirmed. Costs to defendants.
McDONOUGH and WADE, JJ., concur.