Walker v. Hogue

185 P.2d 708, 67 Idaho 484, 1947 Ida. LEXIS 127
CourtIdaho Supreme Court
DecidedOctober 16, 1947
DocketNo. 7366.
StatusPublished
Cited by47 cases

This text of 185 P.2d 708 (Walker v. Hogue) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Hogue, 185 P.2d 708, 67 Idaho 484, 1947 Ida. LEXIS 127 (Idaho 1947).

Opinion

HYATT, Justice.

Hiram Walker, while employed as a carpenter’s helper for Martin Construction Company on September 19th, 1942, fell six feet from a scaffold, striking the ground with the back of his head, left shoulder and upper back as a result of which he was rendered unconscious for a few moments, and sustained injuries consisting of a 'basal skull fracture and sprain of the neck and left shoulder, resulting in stiffness in his neck and weakness of the left arm and loss of grip in the left hand. His attending physician, Dr. F. A. Pittinger, reported him surgically healed on March 1, 1943, and by reason of disability in his. neck and loss of function in his left arm, estimated his permanent disability as of 20% compared to loss of the arm at the shoulder. Liability under the Workmen’s Compensation Law, *487 Code 1932, § 43-901 et seq., was accepted by State Insurance Fund, surety for Martin Construction Company, and a compensation agreement was approved by Industrial Accident Board on March 19, 1943, under which Walker’s permanent partial disability for work was fixed in accordance with Dr. Pittinger’s estimate.

Between June, 1943, and September 25, 1945, on which latter date claimant was injured in a second accident hereinafter described, he worked intermittently shearing sheep, doing -farm work, digging and picking potatoes, cutting grass, grinding tools and performing similar jobs. Otherwise, he was intermittently subject to temporary periods of total disability. He suffered with pain in his neck and left arm when working, and this arm gradually became less useful.

On September 25, 1945, while picking apples in the employ of F. H. Hogue for whom Idaho Compensation Company was surety, claimant fell 12 feet from a fruit ladder set in an insecure place, striking the ground with his left shoulder and injuring his left shoulder and ribs. He was attended by Dr. H. L. Newcombe, who hospitalized him for three weeks and treated him for suspected fracture of the left scapula and separation of the left ninth costochondral articulation. On July 20, 1946, Dr. Newcombe discharged claimant as surgically healed of the injuries received September 25, 1945. Idaho Compensation Company as surety for Hogue accepted liability and made a compensation agreement with him, by which claimant was paid compensation for total temporary disability from September 25, 1945, to July 20, 1946. This agreement, dated July 30, 1946, was filed with the Board August 3, 1946, but never approved.

On or about May 29, 1946, claimant filed with' the'Industrial Accident Board an application for review and modification of the award for his first accident, asking additional compensation from Martin Construction Company and State Insurance Fund, alleging in substance a progressive change for the worse on account of his first injury until he was permanently disabled for work. On July 8, 1946, Martin Construction Company and State Insurance Fund answered, denying any increase in disability, alleging claimant’s second accident and injury of September 25, 1945, and claiming it was impossible, until claimant recovered therefrom, to determine what part, if any, of claimant’s alleged permanent disability was due to the accident of September 25, 1945, and what part, if any, attributable to that of September 19, 1942. On July 9, 1946, the Board ordered F. H. Hogue and Idaho Compensation Company brought in as additional parties defendant. These parties answered on September 12, 1946, admitting the allegations of claimant’s application, controverting the answer of Martin Construction Company and State Insurance Fund, alleging the compensation agreement with claimant for his - second injury, *488 and claiming any disability he might have was the result of his first injury.

The matter was heard by the Board on November 20 and 21, 1946. The Board found, and it is accepted by all defendants, that the claimant was a total disability at the time of the hearing. It was further found that such disability resulted from a neurosis or psychosis commencing after and on account of the first accident, which had gradually increased, but with marked progressiveness thereof after September 1, 1944; that his degree of disability prior to the second accident was not continuously ‘total and he was able to and did work intermittently; that he was unable to work at all after the second accident; and that while the second accident was not the major or sole cause of total disability, it contributed enough to make the claimant such and terminate his working career. By its award, the Board in effect apportioned payments for permanent and total disability between the two employers and their sureties.

From this award the defendants F. H. Hogue and its surety Idaho Compensation Company appeal, claiming that the Industrial Accident Board erred:

(a) In not finding that claimant’s first injury was the sole cause of his disability;

(b) In not finding that claimant’s disability was through a recurrence of the first injury, and that the State Insurance Fund was (solely) liable;

(c) In not finding as a matter of law that claimant’s first injury was the natural and proximate cause of his disability, and that the award should be (solely) against the original insurance carrier;

and further claiming that the Findings of Fact of the Board are not based on any substantial, competent evidence.

Appellants’ contentions may be summarized to this effect: That the Board erred in not finding that claimant’s first injury was the sole cause of his total and permanent disability, and that there is no substantial, competent evidence to support the finding of the Board that" claimant’s second injury contributed to such total and permanent disability.

Appellants stress the medical testimony of Dr. Pittinger, Dr. Kellogg and Dr. Newcombe, all of whom in response to hypothetical questions gave their opinion that claimant’s total disability was attributable to the first accident. However, Dr. Pittinger also testified that he had no opinion as to the amount or degree of disability that the claimant suffered on account of his first accident, and that he would not say that none of the claimant’s present condition was the result of his second injury; that his opinion was based entirely upon the history given in the hypothetical question, and that when he had examined the claimant on December 11, 1945, he had assumed ■that the claimant’s psycho neurosis was due in a major part to the second accident. Dr. Kellogg, who examined the claimant in *489 June, 1945, and again at the hearing, admitted on cross-examination that the second injury could have speeded up the progressive process of the claimant getting worse, and that he would not rule out the possibility of the present condition being a result of the second injury. Dr. Newcombe testified that the man was not able to work when discharged by him, but thought this was due rather to a previous existing condition. Dr. Newcombe went no further than to say that claimant’s first accident was a “possible” cause of his present disability.

The claimant’s testimony was somewhat vague, but he testified that he had been unable to work since his second injury, and that his condition prior to his second accident was not as bad as at the time of hearing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. Emmett Manor
997 P.2d 621 (Idaho Supreme Court, 2000)
Huerta v. School Dist. No. 431
773 P.2d 1130 (Idaho Supreme Court, 1989)
Urry v. Walker & Fox Masonry Contractors
769 P.2d 1122 (Idaho Supreme Court, 1989)
Baldner v. Bennett's, Inc.
649 P.2d 1214 (Idaho Supreme Court, 1982)
Thom v. Callahan
540 P.2d 1330 (Idaho Supreme Court, 1975)
Ellis v. Dravo Corp.
540 P.2d 294 (Idaho Supreme Court, 1975)
Hite v. Kulhenak Building Contractor
524 P.2d 531 (Idaho Supreme Court, 1974)
Dean v. Dravo Corporation
511 P.2d 1334 (Idaho Supreme Court, 1973)
Bottoms v. Pioneer Irrigation District
511 P.2d 304 (Idaho Supreme Court, 1973)
Madron v. Green Giant Company
497 P.2d 1048 (Idaho Supreme Court, 1972)
Johnson v. Boise Cascade Corporation
456 P.2d 751 (Idaho Supreme Court, 1969)
Duggan v. Potlatch Forests, Inc.
441 P.2d 172 (Idaho Supreme Court, 1968)
Dawson v. Hartwick
428 P.2d 480 (Idaho Supreme Court, 1967)
Wilson v. Gardner Associated, Inc.
426 P.2d 567 (Idaho Supreme Court, 1967)
Bradshaw v. Bench Sewer District
414 P.2d 661 (Idaho Supreme Court, 1966)
State v. McFarland
401 P.2d 824 (Idaho Supreme Court, 1965)
Bennett v. Bunker Hill Company
399 P.2d 270 (Idaho Supreme Court, 1965)
Duerock v. Acarregui
390 P.2d 55 (Idaho Supreme Court, 1964)
Comish v. J. R. Simplot Fertilizer Co.
383 P.2d 333 (Idaho Supreme Court, 1963)
Stockdale v. Sunshine Mining Co.
373 P.2d 935 (Idaho Supreme Court, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
185 P.2d 708, 67 Idaho 484, 1947 Ida. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-hogue-idaho-1947.