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JOHNSON v. INDUSTRIAL COMMISSION OF UTAH ET AL

Supreme Court of Utah
Dec 10, 1937
73 P.2d 1308 (Utah 1937)

Summary

holding that a claimant who filed for permanent total disability but was awarded permanent partial disability could apply to reopen his claim and seek additional benefits under the Commission's continuing jurisdiction at the end of his awarded compensation

Summary of this case from Employers' Reinsurance Fund v. Labor Comm'n

Opinion

No. 5834.

Decided December 10, 1937.

1. WORKMEN'S COMPENSATION. An award made by Industrial Commission for injuries sustained by employee while in course of employment, based on findings made at formal hearing, was a final adjudication as to matters therein decided, including issue as to employee's condition then existing, notwithstanding commission's continuing jurisdiction of the case, unless such award is set aside on review by the Supreme Court. 2. WORKMEN'S COMPENSATION. Where Industrial Commission denied employee a rehearing on an award for injuries sustained, employee had right to have the award reviewed by Supreme Court. 3. WORKMEN'S COMPENSATION. Where employee accepted compensation suggested by Industrial Commission and agreed to by insurance carrier without formal hearing, there was no award to review. 4. WORKMEN'S COMPENSATION. In hearing before Industrial Commission on injuries sustained by employee, where there was no permanent and complete loss of use of both arms so that employee was not, under statute, permanently disabled as matter of law, it was for the commission to decide from evidence the extent of disability (Rev. St. 1933, 42-1-63). 5. WORKMEN'S COMPENSATION. Evidence that a committee of physicians examined employee at different times and reported 75% disability of left arm and 25% disability of right arm, and employee's attending physician testified likewise, though in his opinion such disability constituted total disability, did not compel a finding of total disability but supported award for 75% permanent partial loss of function to right arm and 25% permanent partial loss of function to left arm. 6. WORKMEN'S COMPENSATION. Industrial Commission, in determining extent of an employee's disability, was not bound to follow opinion of expert witness, but should make its own finding from all the evidence. 7. WORKMEN'S COMPENSATION. Supreme Court will not disturb an award of Industrial Commission unless it appears that commission acted arbitrarily in determining such award. 8. WORKMEN'S COMPENSATION. Where Industrial Commission made an award for 200 weeks for injury to employee, and at end of such time employee believed he was entitled to further compensation, employee could then have a hearing of such matter, under continuing jurisdiction of the commission.

Silver King Coalition Mines Co. v. Industrial Commission, 92 Utah 511, 69 P.2d 608.

Babick v. Industrial Commission, 91 Utah 581, 65 P.2d 1133.

Standard Coal Co. v. Industrial Commission, 91 Utah 549, 65 P.2d 640.

Original proceeding on certiorari to review a compensation award of the Industrial Commission of Utah, by Ephraim Johnson against the Industrial Commission of Utah, Utah Construction Company, and the State Insurance Fund.

AWARD AFFIRMED.

J. Quill Nebeker and Henry Seeger, both of Ogden, for plaintiff.

Joseph Chez, Atty. Gen., and F.A. Trottier, of Salt Lake City, for defendants.


Certiorari to review an award of the Industrial Commission of Utah wherein plaintiff was granted compensation for 200 weeks as for permanent partial disability. He asserts that he was permanently, totally disabled at the time and for that reason has brought the case here for review. Plaintiff was injured while at work in the employ of the Utah Construction Company at Henefer, Utah. The State Insurance Fund is the insurance carrier.

Without formal hearing or award, the insurance carrier provided medical and hospital treatment and paid plaintiff compensation as for temporary total disability from the happening of the injury to October 1, 1933, and since that date has paid compensation as for permanent partial disability. He was twice examined by medical boards, and after the second examination the Industrial Commission suggested that he be paid 200 weeks' compensation as for permanent partial disability, which period should include previous payments made to him as for permanent partial disability. The insurance carrier agreed to abide by the recommendation and the payments were made accordingly.

Plaintiff requested a formal hearing before the Industrial Commission alleging he was suffering a permanent total disability. The Industrial Commission, after two formal hearings, made findings that "as a result of said injury the applicant has sustained 75% permanent partial loss of function to the right arm at the shoulder and 25% permanent partial loss of function to the left arm at the shoulder. The applicant is not permanently and totally disabled as a result of said injury." The commission thereupon directed payment of the maximum weekly compensation for 200 weeks in addition to the amount paid as for temporary total disability.

Defendant made a motion to dismiss the proceeding in this court, alleging it was prematurely brought because the case in its present situation is moot. Its argument is that plaintiff would be receiving the same amount per week of compensation until the end of 200 weeks whether the 1-3 commission considered he had been permanently totally disabled or only permanently partially disabled and that he would be entitled to a hearing respecting his then condition at the end of the 200 weeks under the continuing jurisdiction of the commission. It is also suggested that the award is not a final one. Notwithstanding the continuing jurisdiction of the commission over the case, the award as made was a final adjudication as to the matters therein decided, including the issue as to plaintiff's condition then existing. Plaintiff had the right, after denial of his motion for rehearing, to have the award reviewed by this court. It is even more clear that the insurance carrier, had it believed the award unlawful or unjust, would have the right of review. If plaintiff had accepted the compensation suggested by the commission and agreed to by the insurance carrier without a formal hearing, there then would have been no award to review; but after a formal hearing, the entry of an award, and denial of motion for a rehearing, the award is final unless set aside by this court. The motion to dismiss is denied.

Plaintiff contends the commission erred in finding that "the applicant is not permanently and totally disabled as a result of said injury" and in awarding compensation as for permanent partial disability only. Plaintiff's condition does not fit into the classification 4-6 described in the last sentence of section 42-1-63, R.S. Utah 1933; that is, there was no permanent and complete loss or loss of use of both arms so that he would be permanently disabled as a matter of law. It was then for the commission to decide from all the facts and circumstances in evidence whether he was so disabled. The finding was that he was not. Two different committees of physicians examined plaintiff at different times and reported their findings to the commission. The last of these reported that plaintiff had suffered a 75 per cent disability of the right arm and a 25 per cent disability of the left arm. Dr. W.R. Brown, plaintiff's attending physician, testified to a similar effect and also, in his opinion, the applicant was totally and permanently disabled. This was an opinion, of course, on the ultimate fact in issue which was for the Commission itself to decide. The commission was not bound to follow such opinion, but should, as it did, make its own finding from a consideration of all the evidence. Silver King Coalition Mines Co. v. Industrial Commission, 92 Utah 511, 69 P.2d 608.

The evidence does not compel a finding of total permanent disability and does support the award as made. Unless we can say the commission acted arbitrarily (which we cannot on the record), the award must be sustained. Babick v. Industrial Commission, 91 Utah 581, 65 P.2d 1133. If plaintiff's 7, 8 condition at the end of 200 weeks, during which he is paid compensation, is such that he believes he is entitled to further compensation, there is a way open for a hearing and determination of such matter under the continuing jurisdiction of the Commission. Standard Coal Co. v. Industrial Commission, 91 Utah 549, 65 P.2d 640.

The award of the Industrial Commission is affirmed.

HANSON, MOFFAT, WOLFE, and LARSON, JJ., concur.


Summaries of

JOHNSON v. INDUSTRIAL COMMISSION OF UTAH ET AL

Supreme Court of Utah
Dec 10, 1937
73 P.2d 1308 (Utah 1937)

holding that a claimant who filed for permanent total disability but was awarded permanent partial disability could apply to reopen his claim and seek additional benefits under the Commission's continuing jurisdiction at the end of his awarded compensation

Summary of this case from Employers' Reinsurance Fund v. Labor Comm'n
Case details for

JOHNSON v. INDUSTRIAL COMMISSION OF UTAH ET AL

Case Details

Full title:JOHNSON v. INDUSTRIAL COMMISSION OF UTAH et al

Court:Supreme Court of Utah

Date published: Dec 10, 1937

Citations

73 P.2d 1308 (Utah 1937)
73 P.2d 1308

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