Ellis v. Dravo Corp.

BAKES, Justice

(dissenting):

I would remand this matter to the Industrial Commission for further findings. The two critical findings of fact which were necessary for the proper resolution of this case were: (1) did the claimant suffer any permanent injury to his liver; and (2) if so, did that permanent injury result in any permanent impairment or disability to the workman within the meaning of the workmen’s compensation act? There was substantial, competent medical testimony introduced on behalf of the claimant and the employer on those two issues. However, the Industrial Commission did not resolve those factual issues. It merely found that the claimant did not sustain his burden of proof, which is not a finding of fact at all but a conclusion of law.

If the claimant had presented no expert medical testimony concerning any impairment to his liver as a result of the hepatitis, then the Commission would be correct in concluding that he had failed to sustain his burden of proof and would be justified in denying his claim on that ground. See Dean v. Dravo Corp., 95 Idaho 558, 511 P.2d 1334 (1973). However, when the claimant introduced competent medical testimony that he had suffered a permanent partial disability of 33% as a result of injury to his liver from the serum hepatitis caused by the surgery, and that testimony is then contradicted by a medical expert for the employer who denies that there is such permanent injury to the liver, it is the obligation of the Industrial Commission to resolve the factual dispute and determine whether there was or was not permanent injury to the liver causing disability. The practice of avoiding those difficult factual determinations by concluding that one party or the other has not met its burden of proof does not satisfy the Commission’s constitutional and statutory obligation to find the facts from the evidence presented. It may be easier to tell a claimant that he has failed to meet his burden of proof, rather than to tell him that he has not sustained the injury that he claims. However, it is the Commission’s duty under the law to resolve the factual disputes and find the facts.

I would reverse the order of the Industrial Commission and remand the cause to it to make the factual determination of whether or not the claimant was disabled as a result of injury to his liver resulting from the serum hepatitis contracted in the course of an operation necessitated by the industrial accident.

SHEPARD, J., concurs.