Wanke v. Ziebarth Const. Co. , 69 Idaho 64 ( 1948 )

April 7, 1942, Englebert Wanke sustained a personal injury by accident arising out of and in the course of his employment by respondent Ziebarth Construction Company. On his claim for compensation for the injuries sustained on that date the Industrial Accident Board awarded Wanke $1215.30. Thereafter, towit, January 14, 1946, appellant Wanke filed an application for modification of that award on the ground of a change in his condition. February 25, 1946, Wanke's employer and its surety by answer denied Wanke's condition had changed as a result of the accident. Following the hearing of the last above mentioned application, towit, April 10, 1946, the Board awarded appellant Wanke $106.92 for increase in his permanent disability, and in addition respondent Construction Company and its surety were required to tender appellant Wanke an operation for inguinal hernia, and in the event such tender was not made, then respondents were required to pay appellant Wanke $150 to cover the expense of such an operation, and, further, that by reason of the operation, respondents were also required to pay appellant the sum of $12 weekly not exceeding six weeks.

November 6, 1947, five years and seven months after the accident, appellant filed what is called a "Petition for Hearing" in which he alleges: "That claimant now is permanently and totally unable to work and applies for benefits under the law because of change in condition and error of the board in not awarding such benefits during the first [hearing] herein or at any time."

And in which petition it is also alleged appellant "has a permanent injury, disability for work consisting of complete and total inability to work" and in which appellant further alleges he has "incurred expenses in the sum of $600.00 for medical attendance, hospital and other services."

At the hearing of the said petition, appellant not being represented by counsel, the Board requested attorney Walter Oros "to act as amicus curiae on his [appellant's] behalf." Before any evidence was adduced respondents moved to dismiss the petition upon the ground, among others, that "More than four year have now elapsed since the date of the injury and claim for any further compensation is now barred by Section43-1407."

Mr. Oros was then asked if he had anything to say "with respect to the motion just made by the defendants [respondents]", to which came the reply:

"Mr. Oros: I have nothing to say."

Following the making of that statement, the record shows this:

"Mr. Oros: I would like to have the Board rule on the motion so I can make an offer of proof.

"Mr. Oppenheim: Motion granted."

Mr. Oros then made an offer to prove appellant "is now permanently and totally disabled and unable to work and that the Board on its last hearing as of April 10, 1946, and its Findings of Fact and Conclusions of Law was in error in that an award was not entered in sufficient benefit to which he was entitled under the law of this State. That he [Wanke] had a change of condition at that time and that he has a further change in condition at the present time, and he now is completely and totally disabled to work by reason of the said injury. He has paid out some $600 for medical and hospital care; that assuming for the sake of argument that disability benefits under the law are barred, still it does not bar him [Wanke] from his claim for $600 which he has incurred arising out of and by reason of this accident, it being his position that medical and hospital expenses are not in the category of compensation benefits that would be barred under the four year limitation."

In support of the offer of proof appellant was permitted to testify to the medical expenses incurred and paid out following the last above mentioned award of the Board, at the close of which respondents renewed their motion to strike "on the ground that any claim that the claimant may have is now barred by Section 43-1407, I.C.A., 1932."

"Mr. Oppenheim: Your last motion is granted."

Thereafter, towit, November 21, 1947, the Board made and filed findings of fact and rulings of law and entered thereon the following: "Wherefore, it is hereby ordered that claimant's claim, embodied in his petition of November 6, 1947, be and the same is hereby dismissed."

On appeal from that order claimant Wanke, among other things, challenged the constitutionality of sec. 43-1047, I.C.A., on numerous grounds as appears from the foregoing opinion filed June 24, 1948. Thereafter, to wit, July 12, 1948, claimant Wanke filed a petition for rehearing, which was granted and a rehearing ordered and had at our November 1948 term at Coeur d'Alene. In his petition for rehearing appellant urged the court erred in holding it would not review a question not raised by the pleadings or submitted to the tribunal below, appellant insisting the constitutionality of a statute can be raised for the first time on appeal. And, also, that the court erred in holding "Any defects or imperfections relative to Section 43-1407, I.C.A., as originally enacted in 1917, if any there were, would be cured by the re-enactment thereof as disclosed by the foregoing acts, and in the absence of other authority would be sufficient to negative contentions of appellant that said section is invalid."

Counsel for the respective parties, as well as Mr. Oros, were requested to brief certain questions, among others: Whether the Industrial Accident Board was vested with power or jurisdiction to decide the constitutionality of any provision of the Workmen's Compensation Law, and if so, how and in what manner should the question be raised before the Board; whether it was necessary to raise the question before the Board in order to preserve the right to have the question determined by this court; whether claimant by his "Petition for Hearing" and offer of proof was seeking compensation for a continuance of the same disability or for an increase in compensation based upon a change of conditions; whether, regardless of the claim and offer, should the Board, nevertheless have proceeded to hear and investigate the matter in full; and whether section43-1407, I.C.A., when considered in connection with sec.43-1107, I.C.A., applies to medical and hospital benefits.

At the outset, it may be stated appellant agrees with respondents that: "* * * the question of a statute's constitutionality is a judicial problem that only the courts have power to decide. It is not a proper question for determination by an administrative board even though it may in its normal proceedings exercise quasi judicial powers."

But appellant insists, and we think correctly, that the constitutionality of any part or provision of the Workmen's Compensation Law may be raised for the first time on appeal, where no prejudice will be suffered by the adverse party, Cole v. Fruitland Canning Ass'n, 64 Idaho 505, 134 P.2d 603, as in the case at bar. Nevertheless, there may be instances where it would be better practice to raise any such question at the first opportunity, for the information of the Board and the adversary party, the challenge to be stated in ordinary and concise language.

Furthermore, while it is too late to question the validity of a statute, after codification, on the ground of some alleged defect in the title, Anderson v. Great Northern R. Co.,25 Idaho 433, 442, 138 P. 127, Ann.Cas. 1916C, 1919; Curoe v. Spokane I. E. R. Co., 32 Idaho 643, 646, 186 P. 1101, 37 A.L.R. 923; Emmett Irr. Dist. v. McNish, 38 Idaho 241, 244, 220 P. 409, it has never been held in this jurisdiction to be too late to challenge the constitutionality of a statute at any time after codification, where the challenge is not based on defect of title.

That brings us to the consideration of appellant's attack on the constitutionality of sec. 43-1407, I.C.A., in that it is insisted it denies the guaranties found in article 1, sec. 13, of the constitution of the state of Idaho and the 14th amendment of the constitution of the United States. The grounds of the attack are in substance: That such section deprives appellant of property and property rights without due process of law; that it makes "a classification not based upon a reasonable difference between the groups" classified; that it "makes an arbitrary classification"; that it is "arbitrary and unfair and hence a denial of due process and equal protection of the laws."

Section 43-1407, supra, in so far as material here, provides: [Sec. 43-1407] "On application made by any party within four years of the date of the accident causing the injury, on the ground of a change in conditions, the board may at any time, but not oftener than once in six months, review any agreement or award, and on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, subject to the maximum and minimum provided in this act, * * *."

Can it be seriously contended that that section denies either equal protection of the laws or due process of law, or that it is arbitrary and unfair, or that it makes any classification whatsoever, or that it deprives any person of property or property rights? Just a casual reading of the section discloses that instead of denying either equal protection of the laws or due process of law, section 43-1407, supra, gives "any party," that is to say any interested party, who, for any reason desires to obtain a review of any prior agreement or award, on the ground of "a change in conditions," a complete remedy by application, in that "on application" any interested party may have a prior "agreement or award" reviewed by the Industrial Accident Board on the ground of a "change in conditions," and on such review or examination into the matters presented by such application, the Board may end, diminish or increase "the compensation previously agreed upon or awarded". Further: Instead of limiting the remedy so given, to any single person or group of persons, or class or classes, the remedy is given to "any party" seeking relief. Instead of being arbitrary or unfair, the section treats all persons affected alike. Instead of depriving any person of a right, the section provides for a review and examination into any right, and all rights involving "a change in conditions" previously agreed upon or awarded," and a determination thereof. Moreover, the provision limiting the making of an application to four years, "but not oftener than once in six months," also applies to all alike. While the section provides applications must be made within a fixed period, towit, four years, that could not render it unconstitutional, in that if the legislature intended to limit the time within which applications could be made, as it appears it did, it was necessary to fix a definite period. Either the legislature had to fix a definite period or not legislate at all. And on matter what time might be fixed, there would no doubt be instances where disabilities would develop after the period had expired. For these reasons section43-1407, supra, is not subject to the attack made upon it by appellant.

But appellant insists he alleged in his "Petition for Hearing" "both a change of condition and error on the part of the Board in not awarding him compensation to which he was entitled at the first hearing or at any time. If claimant's physical condition has become progressively worse he should be entitled to recover additional compensation for the increase in the extent of his permanent injuries under Sec. 43-1113, I.C.A."

And appellant also contends he was totally disabled for work March 15, 1944, and that the Board so found in its amended findings of fact dated April 22, 1944, reading as follows: "That as the result of the injury the claimant was totally temporarily disabled for work from and after the said 7th day of April, 1942, until the 15th day of March, 1944, at which time he was surgically healed of his injury and now has as a result of his injury by accident a permanent partial disability equal to and comparable with 30% of the loss of the left leg at the hip joint, so as to preclude the use of an artificial limb."

Appellant is mistaken in his construction of that finding. The Board did not find appellant was totally disabled for work March 15, 1944. What the Board found was, as the finding itself clearly states: That appellant was totally temporarily disabled for work from April 7, 1942, until March 15, 1944, further finding that on March 15, 1944, appellant was surgically healed of his injury but as a result of the accident April 7, 1942, he had a permanent partial disability, not total disability. And if appellant's disability for work March 15, 1944, was total, as he now contends, and not partial, he should have appealed from the award.

Furthermore, if appellant's physical condition was "continuing" and becoming "progressively worse" as he also contends, and he was, for that reason "entitled to recover additional compensation," the Workmen's Compensation Law gave him a complete remedy by appeal. And if it be true, that "Actually, appellant has been unable to work since the accident and that fact stands out irrespective of all the arguments that may be advanced in opposition to his right to recover compensation for his "disability for work" (emphasis added), appellant had ample time within which to make an application and showing, and if the Board denied an award, could also have appealed from that.

Furthermore, the record discloses appellant in his Application for Modification of Award, filed January 14, 1946, not only claimed compensation on the ground of a change in his condition, but also claimed compensation for "permanent total disability". Instead of awarding compensation for permanent total disability, the Board awarded permanent partial disability as above pointed out. If the Board erred in making that award, by thereby denying an award for "permanent total disability", appellant should have appealed. It was too late, November 6, 1947, to either appeal or make an application or for the Board to examine into or determine any of those matters.

Appellant also contends sec. 43-1407, supra, is unconstitutional on another ground, to wit, that it is a special law and, therefore, prohibited by art. 3, sec. 19, of the constitution of the state of Idaho. Appellant does not correctly construe the section. As hereinbefore pointed out, the section is general in terms, all persons subject to it are treated alike as to privileges, protection and in every other respect. In State v. Horn, 27 Idaho 782, 793, 152 P. 275, 279, this court said: "It is well settled that a law is not special in character "if all persons subject to it are treated alike, under similar circumstances and conditions, in respect both of the privileges conferred and the liabilities imposed.' "

See also Mix v. Board of Com'rs of Nez Perce County, 18 Idaho 695,112 P. 215, 32 L.R.A., N.S., 534; Ada County v. Wright,60 Idaho 394, 2 P.2d 134, and Hanson v. De Coursey, 66 Idaho 631,637, 166 P.2d 261.

We come now to the question: May claimant Wanke recover money expended for hospital and medical care (after the last award of the Board April 10, 1946) on an application therefor filed with the Board November 6, 1947, more than five years after the date he was accidentally injured?

On that question our attention is directed to secs. 43-1107 and 43-1407, I.C.A. In so far as pertinent those sections provide:

[Sec. 43-1107] "Medical attendance. — The employer shall provide for an injured employee such reasonable medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus, as may be required or be requested by the employee immediately after an injury, and for a reasonable time thereafter. * * *"

[Sec. 43-1407] "Modification of award and agreements — Time within which made. — On application made by any party within four years of the date of the accident causing the injury, on the ground of a change in conditions, the board may at any time, but not oftener than once in six months, review any agreement or award, and on such review may make an award ending, diminishing or increasing the compensation previously agreed upon or awarded, * * *."

It should be pointed out here the record does not show claimant's injuries required continuous medical treatment and care from the date of the accident, as apparently true in Flock v. J.C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707. On the contrary, the record shows and the Board found claimant "was surgically healed of his injuries," though left in a condition of permanent partial disability. So that it seems unnecessary to construe either or both of the above quoted sections with reference to whether they do, either when construed together or singly, provide for continuous treatment regardless of the length of time involved. There remains for consideration the contention that regardless of the time which may elapse between the date injuries are sustained and the development of physical troubles later (even where as in the case at bar, the injured employee immediately after the accident is given surgery, hospitalization and medical treatment), the expense incurred or paid out for additional medical, surgical and other treatment may be recovered, and so on ad infinitum.

In construing section 42-1107, supra, it must be conceded it does not expressly require an employer to provide an injured employee with "medical, surgical or other attendance or treatment" under such circumstances. Nor do we find any language therein which impliedly requires an employer to provide treatment for undiscovered physical troubles arising after all the known injuries have been treated and taken care of. Nor do we find any such requirement construing secs.43-1107 and 43-1407, supra, together, unless these two sections when construed together be construed to include medical, surgical and other attendance and treatment as "compensation", within the meaning of sec. 43-1407, supra. Assuming, but not deciding, these sections should be so construed, would not aid claimant in recovering in that his claim would be barred even under that construction.

It follows the order of the Board must be affirmed, and it is so ordered, with costs to respondents.

GIVENS and HYATT, JJ., and TAYLOR and SUTPHEN, Dist. JJ., concur.