Patrick v. Smith Baking Co. , 64 Idaho 190 ( 1942 )

I concur with the majority opinion that under the liberal practice that should be pursued by the board its holdings were unduly restrictive. I am not prepared to agree with the statement in the majority opinion "no prejudice resulted in this case."

The pertinent question before the board was whether or not the second injury caused by an alleged accident sustained by claimant on October 9, 1941, was but a recurrence of the first injury sustained on December 5, 1939 and the proximate cause of the second injury. The board made no specific finding upon this point. The rule is well settled that:

"Where there have been two accidents to an employee, the question of whether the disability sustained by him should be attributed to the first accident or to the second accident depends on whether or not the disability sustained was caused by a reoccurrence of the original injury or by an independent cause." (Syllabus by court in N.Y. Indemnity Co. v. Miller, (Okla.) 22 P.2d 107.)

Where a person has a recurrence of a condition, the question of whether or not the employer at the time of the original injury or the employer at the time of the second injury is responsible for additional compensation becomes one of proximate cause, and if the condition was such that the proximate cause of the injury was the first accident, then the employer at the time of the first accident is liable for the additional compensation. If, in the instant case, the second injury was a recurrence of the first injury, claimant should have proceeded under the provisions of sec. 43-1407, I.C.A. The application of the above rule is illustrated in Tippett Bond,et al., v. Moore, et al., 31 P.2d 583, (Okl.), where the court said:

"* * where the resulting disability was attributable to two different accidents suffered by a claimant while working for two different employers, that it becomes the duty of the commission to determine the amount of disability attributable to each accidental injury and to apportion the employer's liability accordingly. The cause of the claimant's disability in this case presented to the commission a question of fact. * * * The finding of the Industrial Commission on questions of fact are binding and conclusive on this court if supported by an competent evidence."

The Industrial Accident Board is an administrative board; strict rules of evidence should not be invoked in their investigations but great liberality should be indulged to the end that all of the facts be disclosed. The board should likewise find upon all material facts. As was said in In re MacKenzie, 54 Idaho 481, 491, 33 P.2d 113, "But in this case the specific fact which is controlling was not found by the board. The board is a fact-finding body; it heard and saw the witnesses when they testified, and examined the premises, and it was and is its duty, when such can be done under the evidence, to make the necessary specific findings of fact which are controlling." (Italics ours.) (See also Smith v. MercyHospital, 60 Idaho 674, 679, 95 P.2d 580, and cases cited therein.) There was no finding made by the Board that the second injury was an independent accident and injury. The pertinent, controversial fact was entirely ignored by the Board's Findings of Fact. Appellant, Idaho Compensation Company, did not have a fair and impartial hearing due to the inadvertence of the board's rulings on admission and exclusion of testimony and as heretofore stated made no specific findingon the pertinent question before it, namely, was the second injury a recurrence of the first injury, or was it an independent accident and injury.

The cause should be remanded with instructions to the board to rehear the case, permitting appellant, Idaho Compensation Company, to cross-examine claimant and his witnesses fully upon the pertinent question herein above indicated, to receive further testimony upon this point if offered by either party, and to make a specific finding of fact and ruling of law upon the pertinent question involved.

No costs should be allowed.