Summary
In Munroe v. Sullivan Mining Co., 69 Idaho 348, 207 P.2d 547, the word received such an interpretation as used in I.C. § 72-1227, which provides that the Industrial Accident Board "shall" select a medical panel in a silicosis case from members of a silicosis panel; and in Miller v. Brinkman, 48 Idaho 232, 281 P. 372, this Court attributed a mandatory meaning to the word, as used in C.S. § 6726 [now I.C. § 5-905], setting forth conditions under which the court "shall" set aside a judgment.
Summary of this case from Swanson v. Employment Security AgencyOpinion
No. 7487.
June 18, 1949.
Appeal from Industrial Accident Board.
Proceeding under the Workmen's Compensation Act by William (Bill) Munroe, employee and claimant, opposed by the Sullivan Mining Company, employer and self-insurer. From an award by Industrial Accident Board for compensation for silicosis, claimant appeals.
Remanded with directions.
Walter M. Oros, Boise, E.B. Smith, Boise, Frank L. Benson, Creston, Montana, for appellant.
The Industrial Accident Board "must pursue the same general conduct that a court would exercise in safeguarding the fundamental, constitutional rights of the citizen, which cannot be abridged, except after due notice and a fair and impartial hearing." Cook v. Massey, 38 Idaho 264 at page 277, 220 P. 1088, 35 A.L.R. 200; Gauthier v. Penobscot Chemical Fiber Co., 120 Me. 73, 113 A. 28; Abrams v. Jones, 35 Idaho 532, 207 P. 724; F. W. Merrick, Inc. v. Cross, 144 Okl. 40, 289 P. 267; International Harvester Co. v. Industrial Commission, 157 Wis. 167, 147 N.W. 53, Ann.Cas. 1916B, 330; Bereda Mfg. Co. v. Industrial Board of Illinois, 275 Ill. 514, 114 N.E. 275.
Chas. E. Horning, Wallace, Sennett S. Taylor, Mullan, for respondent.
Questions not raised at hearing before Industrial Accident Board will not be considered on appeal. Miller v. Donovan, 11 Idaho 545, 550, 83 P. 608; Grant v. St. James Mining Co., 33 Idaho 221, 222, 191 P. 359; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 325, 227 P. 29; Foss v. Dahlquist, 48 Idaho 30, 32, 279 P. 407; Garrett Transfer Storage Co. v. Pfost, 54 Idaho 576, 585, 33 P.2d 743.
Appellant filed a claim for compensation for disability by an occupational disease, silicosis, and since it involved medical questions relative thereto, a medical panel was ostensibly selected by the Board with reference thereto, under Section 72-1231, I.C., and ultimately an award was made.
The appeal presents numerous errors, the determination of one sufficing to dispose of this case for the present.
Section 72-1227, I.C., provides the Governor shall appoint from recommended eligibles a silicosis panel of six physicians, four of whom shall have had at least five years experience in silicosis and two in roentgenology. As needed, the Boars shall select three of these for a medical panel.
The Board herein selected two from such silicosis panel of six; the third, though formerly a member, was not then one of the six appointed by the Governor for the pertinent period.
The functions of a grand jury are similar to those of the medical panel. Though the findings of the latter are more binding, therefore, there should be at least as much compliance with the statute with regard thereto. Those serving on a grand jury must be properly selected, State v. Roberts, 33 Idaho 30, 188 P. 895, and on a parity of reasoning, if the medical panel is not selected in accordance with the statute, it would not be a legal body — hence its decision, though unanimous, a nullity.
The terms of the statute are controlling, Kindall v. McBirney, 52 Idaho 65, 11 P.2d 370; Chmielewska v. Butte Superior Mining Co., 81 Mont. 36, 261 P. 616; Davis v. Industrial Accident Board, 92 Mont. 503, 15 P.2d 919, at page 921; State ex rel. Magelo v. Industrial Accident Board, 102 Mont. 455; 59 P.2d 785, at page 789, and in mandatory terms, "shall," Miller v. Brinkman, 48 Idaho 232, at page 235, 281 P. 372; Kivett v. Crouch, 61 Idaho 536, 104 P.2d 21, require the medical panel be drawn from the silicosis panel. This was not done. No properly constituted medical panel having considered appellant's case, the award cannot stand. Section 72-1231, I.C.
The cause is, therefore, remanded for the Board to refer the claim to a valid panel and proceed accordingly.
Costs awarded to appellant.
HOLDEN, C.J., and PORTER, TAYLOR and KEETON, JJ., concur.