Albert F. Goetze, Inc. v. Pistorio

Markell, C. J., delivered the opinion of the Court. This is an appeal from a judgment on appeal from two decisions of the State Industrial Accident Commission. Claimant, while in the employ of employer, cementing a steel beam, was injured by falling when a board on which he was standing, and which was supported by two stepladders, broke. He fell to a concrete floor, striking his head and back.

He was in a hospital for some time, apparently recovered, and returned to work about April 3d or 6th. On June 1, 1950 he again fell from a scaffold and was thereby disabled from work for about three weeks. He then went to work for another employer, as a stonemason (which he considered easier work), at higher wages, from about the week ending June 21, 1950 until about the week ending March 14, 1951. He says he was unable to work from about March 14, 1951 until about November 7, 1951, when he began work for still another employer.

After the first accident he made claim for compensation. On January 23, 1950 the commission awarded him compensation for temporary total disability. After the second accident he again made claim for compensation. On June 16, 1950 he was awarded compensation for temporary total disability..

After hearing on the first claim on May 16, 1950 and on both claims on September 25 and December 4, 1950 and February 13 and May 2, 1951, the commission on June 26, 1951 made two decisions, (1) on the first claim, it terminated compensation for temporary total disability on April ¹⁵⁵ 6,1950, and awarded compensation for permanent partial disability at $20 per week for 30 weeks, for 20 per cent loss of use of left foot and at $20 per week, during continuance of such partial disability, not to exceed $1,125, for 15 per cent loss of industrial use of his back, and (2) on the second claim, it terminated compensation for temporary total disability on June 29, 1950. Claimant appealed from the decisions on both claims. The appeals were tried together. The jury found 35 per cent loss of use of left leg, 35 per cent loss of industrial use of back, and temporary total disability from phlebitis, as a result of the accidents, from March 14, 1951 to November 7, 1951.

On this appeal employer and insurer contend (1) that the trial court erred in permitting the jury to find temporary total disability for a period which began after all claim for “temporary total disability” had been “formally waived” before the commission; and (2) that the issues framed by the court were improper in failing to separate the consequences of the two accidents. At the argument appellants admitted that in the instant case failure to find separately the consequences of each accident makes no practical difference to the parties. This admission disposes of the second contention on this appeal. If different insurance were in force at the times of the two accidents, or in other conceivable circumstances, the contention might have merit.

We intimate no opinion on this point in other circumstances. Appellant’s principal contention is that claimant was permitted to by-pass the commission by submitting to a jury on appeal a question which had never been presented to the commission. In each of the cases the commission’s order of June 26, 1951 recites that the case was set for hearings at the request of claimant “to determine the following issues: 1. Nature and extent of claimant’s disability. * * In the course of the hearing before the commission on February 13, ¹⁵⁶ 1951