Price v. Industrial Commission of Utah

63 P.2d 592, 91 Utah 152, 1937 Utah LEXIS 5
CourtUtah Supreme Court
DecidedJanuary 4, 1937
DocketNo. 5708.
StatusPublished
Cited by8 cases

This text of 63 P.2d 592 (Price v. Industrial Commission of Utah) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. Industrial Commission of Utah, 63 P.2d 592, 91 Utah 152, 1937 Utah LEXIS 5 (Utah 1937).

Opinion

WOLFE, Justice.

On December 2, 1929, Price was awarded a pension of $85 a month by the Industrial Commission of Utah, to be paid out of the Firemen’s Pension Fund. In July of 1933 this was reduced to $60 a month in accordance with chapter 33, Laws of Utah 1933. On March 2, 1935, Price, pursuant to notice from the Industrial Commission, appeared before the commission for physical examination for the purpose of rerating. As a consequence of this examination and hearing, the monthly pension of Price was reduced from $60 to $20. The modified award was based on the finding by a majority of the commission that there was a 25 per cent. *154 permanent loss of bodily function under subsection 3, § 42-4-4, R. S. Utah 1933, as amended by chapter 33, Laws of Utah 1933, reading as follows:

“(3) Any paid fireman or volunteer fireman who is suffering from a mental or physical disability which is the result of accident, injury or exposure while in the performance of duty, shall be entitled to a pension as follows: For a disability equal to 25% loss of bodily function as an active fireman, the sum of $20 per month; for a 50% disability, the sum of $40 per month; and for 100% disability, the sum of $60 per month; provided, however, that if such disability is removed then such pension shall cease, and be it further provided that such pension begin only after the period for which said fireman draws compensation under the Workmen’s Compensation Act has ended.”

A committee of physicians examined the plaintiff and gave as its report that as a human being he sustained a disability of approximately 5 per cent., but as an active fireman he sustained a 100 per cent, disability. On this finding, one of the commissioners dissented, stating:

“I do not concur with the majority of the members of the Commission in awarding a pension of $20.00 per month in this case. I feel that the applicant should be rated on the basis of loss of bodily function as an active fireman and should be paid the maximum amount as provided by law.”

The Attorney General tells us that he agrees with the minority opinion of the commission because “this court has repeatedly held that every word, phrase, clause and sentence of a statute must be given effect and must be given a reasonable meaning.” (Italics supplied.) If this court held that, it held nonsense because we have had statutes wherein it was impossible to give a reasonable or, at times, any meaning to every word, phrase, clause, or sentence. If we held we were under a bounden duty to do the impossible, we held wrongly. But we surmise that the Attorney General meant to insert in his statement the clause, “Wherever reasonably possible, effect should be given,” etc. The Attorney General thinks that effect should be given to the words “as an active fireman.” The ma *155 jority of the commission thought that it was impossible to give effect to the word “bodily,” and at the same time to the words “as an active fireman.” Whichever way the phraseology is taken, it is so ambiguous that it should be clarified by the legislature.

Perhaps the best approach to the problem is to consider the effect of omitting the word “bodily,” leaving in the words “function as an active fireman,” and then leave in the word “bodily” and omit the words “as an active fireman,” and, thirdly, see if both can be given effect with any kind of sense. Certainly, on first impression, a man cannot suffer any more loss of bodily function as a lawyer, musician, foreman, bookkeeper, brakeman, or any other vocation than he can as a fireman. If he suffers loss of bodily function, he suffers it regardless of what he does. The reduction of the orbit of his bodily activity because of the loss of a bodily function is the same regardless of vocation, but the effect of such loss in one vocation as compared to another may be enormously different. It seems too obvious to mention that a singer losing one finger would be little affected as compared to Paderewski losing a finger.

If we omit the word “bodily” and make the clause read “loss of function as an active fireman,” we have the word “function” relating to the vocation of “active fireman.” Here we have some difficulties, but by no means as great as when we try to give effect to both parts of the sentence. A 25 per cent loss of function “as an active fireman” would first take in all the functions of an active fireman, regardless of what particular duty an active fireman might be assigned to. Thus, an active fireman is supposedly one who can perform all the functions which an active fireman may be called on to do. If one active fireman should happen to be assigned- to the telephone switchboard and another to keeping records, these men would be also capable, if active firemen, of climbing ladders, handling hose, running fire vehicles (at least, if so trained), and all the other manifold activities which active firemen are called to do in their *156 drills and in an actual fire and about the station when not on drill or fighting fires. After these are summed up from this as a base, the percentage of loss of these total activities is estimated. If only 25 per cent., he gets $20' a month. If less, he probably would get nothing under this interpretation. This does not mean that he would be good as a fireman. In fact, the statute seems to contemplate that before he gets any pension he must cease to work as a fireman. It may be that a man who suffers 5 per cent loss of function as an active fireman could not function at all as an active fireman, but would have to procure some other work. We know nought about that. The pension he would be entitled to under the suggested phraseology would be determined by comparing all the functions of an active fireman which he could still do in the manner of an active fireman (if he could do them but only slowly and laboriously, he would probably not be considered as being able to exercise that particular function), with all the functions that he or the ordinary active fireman could and is supposed to be able to perform.

We now consider the sentence leaving in the word “bodily” and omitting the words “as an active fireman.” This brings the inquiry into determining simply his loss of bodily function as a man, just as is done under the next to the last paragraph of section 42-1-62, R. S. 1933. The doctors testify as to what his loss of bodily function is, regardless of his ability to work as an active fireman or in any other work. That is, testimony unrelated to vocational ability. It is the impairment of his normal bodily function caused by the accident. A very small impairment might leave him in shape to do many other things but not permit him to do the active work of a fireman. A slight limp or a slight impairment of the heart amounting to a 5 per cent impairment of bodily function might prevent him from running up ladders or standing on a wall, but not impair his ability to do most other work. As in the instant case, he had 5 per cent impairment of bodily function which put *157 him out of the running as a 100 per cent active fireman, if indeed the doctors were competent to testify as to his impairment as an active fireman.

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Bluebook (online)
63 P.2d 592, 91 Utah 152, 1937 Utah LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-industrial-commission-of-utah-utah-1937.