Skelly v. Sunshine Mining Co. , 62 Idaho 192 ( 1941 )

The amendment to the Constitution (sec. 9, art. 5), ratified November 3, 1936, admonishes us that "On appeal from orders ofthe Industrial Accident Board the court shall be limited to a review ofquestions of law." (1937 Sess. Laws, p. 499.) This court has, I think, heretofore observed the foregoing admonition as nearly as it is possible to do so. (Knight v. Younkin, 61 Idaho 612,105 P.2d 456, 459; Totten v. Long Lake Lumber Co., 61 Idaho 74,97 P.2d 596, 598; Potter v. Realty Trust Co., 60 Idaho 281,90 P.2d 699, 703.)

In the present case it seems to me, however, that the majority of the court is overstepping the limits set by the Constitution in this respect. In confirmation of my belief, I refer to the evidence quoted in the majority opinion which, in itself, seems to me, contains sufficient facts to support the findings and conclusion of the Industrial Accident Board, to the effect

"That claimant's condition has remained about the same since November of 1939, and that there has been no change in conditions resulting from the accident and injury to claimant since the 6th day of May, 1939".

I call special attention to the following excerpts from the testimony of Dr. Smith:

"He has no neurological signs indicative of any lesion in the brain.

. . . . . . . . . . . . . .

"I cannot find anything. There is nothing in our tests that coincides with the complaints. . . . .

On cross-examination:

"I don't think there is any substantial physical difference for I can't find any.

. . . . . . . . . . . . . .

"Q. One found suffering from traumatic neurosis is not a conscious malingerer, is he?

"A. Not entirely.

"Q. He is not conscious of the fact he is malingering, is he?

"A. Perhaps you would not call it malingering. I would say it is partially imaginary."

On redirect examination:

"Q. What changes, if any, have you found in Mr. Skelly between May 17, 1939, the date he got his permanent partial disability, and this time?

"A. There is a change in his complaints but not in hisphysical findings." (Italics supplied.)

In addition to the testimony quoted in the majority opinion and the foregoing, there was much other medical and expert testimony, among which was the testimony of Dr. Lynch, an experienced surgeon of Spokane, who has had special training in brain surgery and neurology. Dr. Lynch made a very thorough personal examination of the claimant and took his complete history which is recited in the doctor's testimony. He reaches the conclusion and expresses the opinion, that no substantial change has taken place in the condition of the claimant since the former award and, among other things, he says:

"Q. Were you able to find any objective symptoms which would account for the complaints Mr. Skelly makes?

"A. I could find no objective symptoms or anything that would lead me to believe there was a lesion of any portion of his brain.

"Q. What is the significance of his pointing out a localized pain to you in connection with the type of symptoms?

"A. That is a very common neurotic complaint. An individual who has headache from an injury to the covering of his brain or to his brain will almost never localize their pain to an area delineated by a finger point. Their pain is over the entire head. They have an apparently deep headache confined to one area. In neurology we look for the finger point pain because it means a functional disturbance as compared with an organic disturbance.

"Q. You mentioned he complained of shooting pains throughout his head. Would that follow any nerve channel, or did it?

"A. No. They do not.

"Q. What significance is that?

"A. It indicates a neurosis.

. . . . . . . . . . . . . .

"Q. Is there anything in connection with his physical person you could observe which would be responsible for those headaches other than the injury sustained at the Sunshine?

"A. Yes.

"Q. What, in connection with his physical person — physical examination would be responsible?

"A. The signs of neurosis this boy possesses. The transitory anesthesia, the finger point pain, the mans increased tolerance of alcohol and his insomnia, and all those signs of neurosis. The only objective findings this boy has is a cardinal symptom of neurosis and that is the type of anesthesia he presents. From that finding it strengthens my opinion this boy'sheadaches are on a neurotic basis at this time. If this boy hadan injury to his brain sufficient to produce as much headacheas he has, he would have to have some objective symptoms andthat I could not find, but I do find evidences of neurosis. (Italics supplied.)

"Q. But the neurosis is chargeable to the injury he sustained down there, is it not?

"A. Remotely so. The injury incited it.

"Q. What do you mean by remotely so?

"A. I have patients in my office who will come in complaining of symptoms like this boy who have never had a head injury. They have a neurosis as a result of some conflict not relating to an injury and for that reason I can visualize this boy with the same complaints as he is having domestic and financial worries, even without a head injury."

The only allegation of change in condition is that found in paragraph VI of the "Petition for Modification," which is as follows:

"VI. "That after the date of the above-mentioned agreement the physical condition of your petitioner changed and your petitioner suffered more and more severe headaches and the condition of the right arm of your petitioner became worse in that it became so painful that he was unable to lift or work with said right arm and shoulder, and the physical condition of your petitioner is now such that he has a permanent total disability because of the above-mentioned injuries to his head and shoulder."

The Board found "That claimant's condition has remained about the same," and I think there is evidence to sustain their finding. The people, by amending the Constitution, took from the court the authority to weigh evidence in compensation cases and vested the authority to do so in the Industrial Accident Board. Now, with unmistakable proof that "no change has occurred" in the physical condition of claimant, this court, nevertheless, is reversing the order of the Board because it is thought, perchance, the "condition . . . . wasneurotic in character or was traumatic neurosis, definitely traceable in part to his accident and injury." (Italics supplied.) If the neurosis is the result of the original accident (trauma), then the injury must have been received at that time and was "accident neurosis"; but at least one of the expert witnesses attributes the neurosis to anxiety, worry,domestic trouble, use of alcohol, etc. Were these not proper questions of fact addressed to the judgment of the board? Was the trauma not known at the time of the original award? Was the cause of the neurosis not known at that time?

The majority opinion in this case accomplishes in an indirect way what we disapproved in Zapantis v. Central Idaho Min. Mill. Co., 61 Idaho 660, 106 P.2d 113, in that it, in effect, changes and revises an order and judgment of the Board after it has become final, and accomplishes that judicial feat, under the assumption that the evidence shows, without conflict, that a "change of condition" had taken place, — whereas in the Zapantis case we held that "after a judgment [of the Board] has been entered and has become final," the case cannot be reopened and revised and passed upon anew.

The objection to the introduction of the testimony of the doctors is predicated on subd. 4 of sec. 16-203, I. C. A., reading as follows:

". . . . 4. A physician or surgeon can not, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient."

If this were an ordinary action at law for damages, objection here made would be well taken, but it is not thought that a proceeding like this, under the Workmen's Compensation Law, is an action within the meaning of the foregoing statute. It is clearly not an action at law; it is rather a specialproceeding.

Section 43-902 repeals the common law system governing such actions at law and abolishes the right to prosecute a civil action in such cases, substituting therefor the Workmen's Compensation Law. (Title 43, chap. 9, I. C. A.)

Section 43-1107 provides that the employer shall furnish "an injured employee such reasonable medical, surgical or other attendance . . . . as may be required or be requested by the employee immediately after an injury, and for a reasonable time thereafter. If the employer fails to provide the same, the injured employee may do so at the expense of the employer."

Section 43-1108 provides for hospital contracts or agreements and authorizes the assessment of the employee for the benefits of such contract.

Section 43-1201 provides that:

"After an injury and during the period of disability the workman, if so requested by his employer, or ordered by the board, shall submit himself to examination, at reasonable times and places, to a duly qualified physician or surgeon designated and paid by the employer. . . . . If a workman refuses to submit himself to or in any way obstructs such examination, his right to take or prosecute any proceeding under this act shall be suspended until such refusal or obstruction ceases, and no compensation shall be payable for the period during which such refusal or obstruction continues."

Section 43-1405 provides that the Industrial AccidentBoard or any member thereof may appoint a duly qualifiedphysician to examine the injured employee and report.

From the foregoing sections, it seems clear that the legislature did not intend or contemplate that the testimony of a physician, attending an injured employee, should be privileged from testifying in a case where the employee is seeking compensation under the compensation law. On the contrary, it is very clear that it was anticipated that the testimony of attending physicians would be material and essential in establishing the character, nature, and extent of the injury and, to a large degree, in determining the amount of compensation the injured workman will be entitled to receive.

It would be very difficult to fairly and equitably administer the compensation law or, with any reasonable degree of accuracy, determine the actual facts involved in a compensation claim, if the claimant may, when he thinks it advantageous to him, claim the privilege accorded by sec. 16-203, as applied in ordinary actions at law.

There is authority from the courts of other states, having similar statutes, supporting the views above expressed. In the case of McFeely v. Industrial Acc. Com., 65 Cal. App. 45,223 P. 413, 415, in discussing an objection to the admission of evidence of physicians and specialists, the court said:

"We think, however, that there cannot be any question of the competency of this testimony in the light of the statutory law and decisions of this state. Workmen's Compensation Insurance and Safety Act of 1917, sec. 19, subd. (c)."

In Winthrop v. Industrial Ace. Com., 19 P.2d 841, the District Court of Appeals of California had occasion to comment on the evidence given by the surgeon who attended the case, and held that his testimony was not privileged under the generalstatute. Paragraph 1 of the syllabus reads as follows:

"Law of privileged communications held inapplicable to surgeon performing operation on compensation claimant to remove disability."

In that case the court annulled the award made by the commission and remanded the case for further proceedings. The commission subsequently heard the case and entered an award and thereafter the matter was again taken to the court of appeals for review. (Winthrop v. Industrial Acc. Com., (Cal.App.)22 P.2d 579.) In the latter case the court adopted and approved the former opinion of the same court, and paragraph one of the syllabus to that opinion is the same as above quoted.

In Korobchuk's Case, 277 Mass. 534, 179 N.E. 175, 176, the Massachusetts court said: "Under G.L.c. 152, sec. 9, the report of a duly qualified impartial physician appointed by the Industrial Accident Board may be received in evidence." See, also, the following cases: Phillips' Case, 278 Mass. 194,179 N.E. 691, 692; Union Lumber Co. v. Industrial Ace. Com.,124 Cal. App. 584, 12 P.2d 1047, 1048.

The Supreme Court of Michigan, in the case of La Count v. VonPlaten-Fox Co., 243 Mich. 250, 220 N.W. 697, 699, has said:

"The privilege of the patient is not of common law, but rests upon the statute, and the waiver thereof is in the same statute, to prevent the suppression of evidence by one seeking aid of the law in securing compensation for a personal injury."

No case has been called to our attention from this court, in which the question has been considered or passed on, although in most of the industrial accident cases the testimony of the attending physician or surgeon has been uniformly received without controversy. (Hillman v. Utah Power Light Co.,56 Idaho 67, 74, 51 P.2d 703.)

I agree, therefore, that sec. 16-203, subd. 4,supra, does not apply to the testimony of physicians, in so far as it relates to injuries received in accidents under the Workmen's Compensation Law.

The order appealed from should be affirmed.