Opinion
No. 7,448.
Submitted December 3, 1935.
Decided December 12, 1935. Rehearing denied December 30, 1935.
Workmen's Compensation — Continuing Jurisdiction of Industrial Accident Board — When Decision of Board Res Adjudicata — By What Claimant's Rights Limited — When Disability Partial, When Total — Inability of Claimant to Earn Wages — How Disability to be Classed. Workmen's Compensation — When Only Decision of Industrial Accident Board Becomes Res Adjudicata. 1. An order or decision of the Industrial Accident Board denying a claim for compensation, thus ending the matter in dispute, becomes final and res adjudicata on failure of the aggrieved party to take an appeal within time, whether the decision was on a question of law or on the merits, but only upon the very issue which it determined, and the case cannot thereafter be reopened for reconsideration of the questions disposed of. Same — When Only Compensation Case to be Deemed Finally Closed. 2. Under the Workmen's Compensation Act and amendments no case in which compensation has been awarded shall be finally closed until the maximum period of payments for the disability for which the award was made has expired, except with respect to a final settlement after the expiration of two years from the date of the order awarding compensation, and in cases involving a compromise settlement. Same — Continuing Jurisdiction of Industrial Accident Board — When Award as "in Final Settlement" Unauthorized. 3. Under the last rule above, held that an order of the Industrial Accident Board made on application for compensation in addition to that formerly allowed allowing such compensation but declaring that it should be in "full and final settlement" was unauthorized and did not preclude the board on a later application for compensation within the maximum allowed by the statute from exercising its continuing jurisdiction. Same — "Permanent Injury" — Meaning of Term. 4. "Permanent" injury within the meaning of the Workmen's Compensation Act does not mean eternal or everlasting, but rather that the disability of the injured workman is lasting or continuous, as distinguished from temporary — that it will be long continuing. Same — Fixing of Period for Which Compensation Allowed — Board may Extend Award to Maximum Allowed by Statute. 5. A showing that an injured workman's disability has continued beyond the period fixed by the Industrial Accident Board for the payment of weekly compensation without actual change in his physical condition, authorizes the board, in the exercise of its continuing jurisdiction, to extend the period of payments within and up to the maximum provided by the statute. Same — When Disability of Workman may be Held to have Increased. 6. Under the provision of section 2956, Revised Codes 1921, authorizing the Industrial Accident Board to increase compensation awarded a claimant where it appears that his disability has "increased," disability may be held to have "increased" where, though it has remained in a sense constant and unchanged, it is shown that it will continue to the end for which the statute allows compensation. Same — Claimant's Rights Limited Only by Provision as to Maximum Number of Weeks Fixed as Limit. 7. In view of the legislative declaration that the weekly compensation fixed by any particular section of the Workmen's Compensation Act shall be paid during the period of disability, a claimant's rights are limited only by the provision of the Act as to the maximum number of weeks fixed by the legislature as a limit. Same — When Claimant's Disability Partial, When Total. 8. Aside from the loss of members of the body, the extent of an injured workman's disability is determined by answering the question whether or not he is able to earn wages by labor, and, if so, how his earning capacity compares with that before the injury; if he is still able to earn something as wages, his disability is partial; if not, it is total; the decision of the Industrial Accident Board on this question can only be reversed if arbitrary and not founded on substantial evidence. Same — Inability of Claimant to Earn Wages — How Disability to be Classed. 9. Where the Industrial Accident Board found on application of an injured workman for additional compensation that claimant could earn no wages, it should have classed his disability as total permanent, and awarded him weekly compensation during the period of disability, not exceeding 500 weeks from and after the date of injury.
Appeal from District Court, Musselshell County; Wm. L. Ford, Judge.
Mr. F.W. Mettler, for Appellant, submitted an original and a reply brief, and he and Mr. A.H. Angstman, of Counsel, argued the cause orally.
Messrs. Murphy Whitlock, for Respondent, submitted a brief; Mr. J.C. Garlington, of Counsel, argued the cause orally.
The sole question involved in this case is whether the plaintiff, an admittedly permanently and totally disabled workman as a result of an industrial accident while in the employ of the defendant, is entitled to compensation additional to the 150 weeks heretofore awarded to him by the Industrial Accident Board.
Our legislature provided for liberal construction of this law. It has provided for a board, empowering it to fix and determine compensation to be paid; to specify the manner in which compensation shall be paid, and reading the law as a whole, it would seem, except in the case of a death by reason of injury, the jurisdiction over cases of disability shall be continuing during the period of disability, not exceeding 500 weeks. At the time of the injury or at the time of hearings before the board it cannot be definitely determined as to the period of recovery. To meet such situations section 2956, Revised Codes 1921, was enacted, as follows: "Nothing contained in the preceding section shall however be construed to limit the right of the board, at any time after the date of its award and from time to time, after due notice and upon the application of any party interested, to review, diminish or increase, within the limits provided by this Act, any compensation awarded upon the grounds that the disability of the person in whose favor such award was made has either increased, or diminished or terminated." The purpose of this section is that the case is always open, so long as the disability of the claimant continues, that justice may be done to all concerned.
The word "increase" as a general term, applies to duration, just as the word "terminated," as used in the above section, also refers to duration. If the disability continues, the statute requires that "compensation shall be paid during the period of disability," not exceeding 500 weeks — that is, for the duration of the disability, or until it is "terminated." So long as a thing continues, it is not terminated. The words "increased or diminished, or terminated," found in the statute, clearly have reference to the period of duration of the disability, and not to the degree or extent of the disability, that is, as to whether it is partial or total. The payments of compensation can only be terminated by the termination of the disability (or by the expiration of 500 weeks), except by the payment of a lump sum, or by full and final compromise settlement. ( Continental Casualty Co. v. Industrial Commission, 70 Utah, 354, 260 P. 279; Carter v. Industrial Commission, 76 Utah, 520, 290 P. 776.)
The testimony of Dr. Person is that from the condition of the claimant it is impossible to state how long such a condition will continue. A disability for an indefinite period is construed as being permanent in character. ( Sykes v. Republic Coal Co., 94 Mont. 239, 247, 22 P.2d 157.)
The testimony of both claimant and the physician is to the effect that the former has no earning capacity whatever, can do no work at which he could earn wages, therefore his disability is total. (Id.) No testimony was offered by the defendant. "No evidence was offered in resistance of the claim. Thus the facts are admitted and undisputed." ( Ryan v. Industrial Accident Board, 100 Mont. 143, 45 P.2d 775.)
In the lower court it was contended by counsel for defendant that the decision of December 19, 1931, by the board, was final and res adjudicata, notwithstanding the provisions of sections 2952 and 2956, Revised Codes of 1921. It is the contention of counsel for claimant that under the provisions of the two sections there is really no such thing as a final order, in the sense of a final judgment. (33 C.J., sec. 18, p. 1061.)
Paraphrasing language found in Woin v. Anaconda Copper Min. Co., 99 Mont. 163, 43 P.2d 663, 668: "The question here is whether claimant's recovery from the accident of April 7, 1930, was complete at the end of the 150 weeks allowed by the board, or whether the admitted total disability of claimant, existing at the termination of the said 150 weeks, still exists and continues."
The injured workman continues in the employ of his employer during the entire period of his disability, unless terminated in some other manner than by the mere happening and continuance of his disability. ( Wirta v. North Butte Min. Co., 64 Mont. 279, 290, 210 P. 332, 30 A.L.R. 964.)
Claimant has received compensation for only 150 weeks. He is entitled to 500 weeks, and neither the order of December 19, 1931, nor the order of July 5, 1933, has deprived him, nor can lawfully deprive him, of his clear rights under the Compensation Act to be paid compensation during the period of his disability.
The order of the Industrial Accident Board dated December 19, 1931, was and is conclusive of all issues in dispute up to that time. Much complaint is made by appellant that the order of the Industrial Accident Board of December 19, 1931, was not a final order. The inference is that no such order can be final unless and until full five hundred weeks at the proper rate per week is paid and that under the continuing jurisdiction of the board, without cause and notwithstanding, the board may open up a case and increase the award previously made.
Under section 2947, Revised Codes 1921, the board in this matter as well as every other compensation matter has "full power, authority, and jurisdiction to try and finally determine the issues involved. Such final determination is subject only to review in the manner and within the time in said Workmen's Compensation Act provided." ( Goodwin v. Elm Orlu Min. Co., 83 Mont. 152, 269 P. 403.) The review contemplated by the section is the hearing on appeal to the district court. (Secs. 2950-2960.)
The order of December 19, 1931, gave notice to claimant as to its finality, that is, its conclusiveness, by ordering payment by respondent to appellant of one hundred fifty weeks of compensation at the rate of $19 per week, less the number of weeks theretofore paid, and by ordering the acceptance of same number of weeks at the same rate by the appellant "in full and final settlement of his claim for compensation."
Payments under said order were made by respondent and accepted by appellant. No application for rehearing was ever made or filed and no appeal to the district court was ever made or prosecuted. Without application for rehearing and without appeal as by our statute provided, all issues in said cause, up to the time of said order, must stand as finally determined. ( State ex rel. Mulholland v. District Court, 88 Mont. 400, 404, 293 P. 291.) The same rule applies when no application for rehearing is made, and when no appeal is taken from the order and award of the board. ( State ex rel. Roundup Coal Min. Co. v. Industrial Accident Board, 94 Mont. 386, 23 P.2d 253; Shugg v. Anaconda Copper Min. Co., 100 Mont. 159, 46 P.2d 435.) In the sense that it is conclusive, we contend that the order of December 19, 1931, made by the Industrial Accident Board in this matter was final. In the sense that the matters before the board were subject to change, the order was interlocutory. The continuing jurisdiction of the Industrial Accident Board of this state as set forth in sections 2952 and 2956, Revised Codes 1921, has been very well defined in the two cases last above cited.
The order of the board dated July 5, 1933, dismissing claimant's request for additional compensation, was in accordance with the law and the facts. We come before this court with the presumption in favor of that order of the board and of the judgment of the district court. ( Radonivich v. Anaconda Copper Min. Co., 91 Mont. 437, 8 P.2d 658; Rom v. Republic Coal Co., 94 Mont. 250, 22 P.2d 161.) The record before the court does not preponderate against the order of the board. ( Morgan v. Butte Central Min. Co., 58 Mont. 663, 194 P. 496; Rom v. Republic Coal Co., supra.)
The board under section 2952, as amended by Chapter 177, Laws of 1929, may rescind, alter or amend any order, decision or award only upon notice and after opportunity to be heard is given to the parties in interest and upon "good cause" appearing therefor. This "good cause" would appear to be, in view of the construction given by this court to sections 2952 and 2956, proof of further and additional disability resulting from the industrial accident, other than the disability existing at the time of the final order of the board — in this case the order of December 19, 1931. The showing would necessarily consist of evidence illustrating something in addition to and different from that appearing in the record before the board prior to its final order.
Analyzing the testimony given by claimant, which is all the testimony ever given by the appellant respecting his condition, it will be seen that his story is the same all the way through. There is nothing therein to show the board, the district court or this court that there has been any change of circumstances to justify any change or amendment of the final order of the board dated December 19, 1931. According to claimant's own physician, claimant's condition is static, the progression is arrested and not only is "good cause" not shown, but it has been demonstrated by appellant himself that the board was without any authority to change or alter its order and award of December 19, 1931.
If, as we contend, the issues which were before the board at the time of the order of December 19, 1931, are res adjudicata, then, right or wrong, its order must stand and the total failure on part of appellant to demonstrate before the board at the most recent hearing that there had been any change in condition must lead inevitably to the conclusion that the order of July 5, 1933, dismissing claimant's petition for additional compensation was according to the law and facts.
Appellant's only means of escape from our contention is through his claim that the mere fact that the disability continued in the same condition as at first constitutes an "increase" in the disability within the meaning of section 2956. Our research on the point discloses that the reason for this simply is that all the decided cases hold contrary to appellant's contention. ( Independence Indemnity Co. v. White, (Tex.Com.App.) 27 S.W.2d 529; Sei v. Guthrie Co., (Mo.App.) 50 S.W.2d 664; Hassell v. C.J. Reinke Lumber Co., (Mo.App.) 54 S.W.2d 758; Burley v. Central Paper Co., 221 Mich. 595, 192 N.W. 538; Connelly v. Carnegie Dock Co., 148 Minn. 333, 181 N.W. 857; Deep Rock Oil Co. v. Evans, 167 Okla. 66, 28 P.2d 7; Shell Petroleum Co. v. Patton, 167 Okla. 246, 29 P.2d 86.) The latter is a case strikingly like the instant case in its fact situation.
Martin Meznarich has appealed from a judgment of the district court of Musselshell county sustaining an order of the Industrial Accident Board denying to him additional compensation for an injury sustained while in the employ of the Republic Coal Company.
Meznarich was accidentally injured while working in the company's coal mine on April 7, 1930; he filed his claim for compensation, on which a hearing was had resulting in an order of the board classifying his disability as temporary total, and requiring the company to pay to the injured workman $19 per week for 26 weeks, or "until the further order of the board." A year later the injured man petitioned the board for additional compensation, and, after a hearing, the board made its order in which it declared that the only question presented was as to whether Meznarich's disability has continued, and, finding no improvement in the man's condition and that he was "unable to earn any wages," granted him compensation for an additional 124 weeks, but declared "this to be in full and final settlement" and must be accepted as such. Meznarich neither moved for a rehearing nor appealed from this order and accepted the benefits thereof.
On April 28, 1933, the injured workman again petitioned the board for additional compensation and for a lump-sum settlement on the theory that he was entitled thereto because his disability still continued unchanged. The board ruled, on a hearing had, that the claimant could only introduce testimony tending to show a change for the worse in his physical condition since the last order, made on December 19, 1931. The evidence produced showed "neither improvement nor progression," and therefore the board entered an order dismissing the petition, therein declaring: "The board further finds that it has not authority to make an award of compensation after having once made an award in full and final settlement of the claim for compensation, unless there is an aggravation of the condition of the claimant after the original award." The claimant moved for a rehearing, which motion was denied, and then appealed to the district court. In its judgment of dismissal the court stated its reasons therefor as follows: "The plaintiff has failed to show any change in his physical condition or * * * further disability * * * than the disability at the time of the hearing proceeding and final award of December 19, 1931. That the Industrial Accident Board in making the final order and award of December 19, 1931, regularly pursued its authority and that said order, award and findings * * * ought to be sustained and that the said order and award, and such findings are reasonable under all the circumstances of the case."
While the evidence before the board and before the court is in the record, the question presented by this appeal is as to whether or not the claimant is entitled to additional compensation as a matter of law, on the facts as found by the board.
It will be noted that the attitude of the board, as expressed in its orders, was that, on his second application for compensation, the claimant was entitled to additional compensation on a showing that "his disability has continued," because the first order was interlocutory, but was not entitled to further compensation on a like showing at a later date because the board had made a "final" order on December 19, 1931, but could then be awarded additional compensation on a showing of a change in his physical condition, or a further disability manifested after the making of the "final" order. This position taken by the board was sustained by the court, and its soundness, under the law, is the first question for determination.
Under our Workmen's Compensation Act, the Industrial Accident [1] Board is "vested with full power, authority, and jurisdiction to try and finally determine" all disputes and controversies arising under the Act, "subject only to review in the manner and within the time in this Act provided" (sec. 2947, Rev. Codes 1921), and, possessing quasi-judicial powers, the board may determine questions of law arising in the course of such disputes and controversies. ( Goodwin v. Elm Orlu Min. Co., 83 Mont. 152, 269 P. 403.)
All orders, rules and regulations, findings, decisions and awards of the board "shall be conclusively presumed to be reasonable and lawful, until and unless they are modified or set aside by the board or upon review." (Sec. 2948, Id.) The "review" mentioned in the two sections cited is by appeal to the district court (sec. 2959, Id., as amended by Laws 1929, Chap. 177, sec. 10), and then to the supreme court. (Sec. 2962, Id.) Therefore, when the board renders its decision denying a claim for compensation and thus ending the matter in dispute, the order or decision becomes final, conclusive, and res adjudicata on failure of the aggrieved party to take an appeal within time, and this is so whether the decision is on a question of law ( State ex rel. Roundup Coal Min. Co. v. Industrial Accident Board, 94 Mont. 386, 23 P.2d 253), or on the merits. ( Shugg v. Anaconda Copper Min. Co., 100 Mont. 159, 46 P.2d 435.)
After an order of the board has become "final," the case cannot be reopened for a reconsideration and redetermination of the questions determined and disposed of. But the judgment of the district court, in this class of cases, determines only that which was before the court for determination, and goes no further. "It is final and, therefore, res adjudicata, upon the very issue which it determines, and upon that only" ( State ex rel. Mulholland v. District Court, 88 Mont. 400, 293 P. 291, 293), and this is so with respect to the orders and decisions of the board. ( State ex rel. Roundup Coal Min. Co. v. Industrial Accident Board, above.)
It follows that the parties to the present controversy are precluded from seeking to reopen the case for a retrial of the issues determined by the order of December 19, 1931, in so far as they were issues before the board. However, no issue was presented to the board as to whether or not its order then made should be interlocutory or final, and the declaration of the board that the order and award should be in full and final settlement of the claim can only be justified by pointing out some provision of the Act authorizing a "final" award of less than the compensation provided for the particular disability, by the provisions of the Act.
A thorough search of the Act reveals no such authority; on the [2, 3] contrary, the Act specifically provides against a final judgment as to the claimant's physical condition so long as he has not received all that he might receive under the Act, by declaring that "the board shall have continuing jurisdiction over all its orders, decisions and awards, and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter, or amend any such order, decision or award made by it upon good cause appearing therefor. Provided, that the board shall not have power to rescind, alter, or amend any final settlement or award * * * more than two years after * * * made, or * * * final compromise settlement of compensation." (Sec. 2952, Rev. Codes 1921, as amended by sec. 9, Chap. 177, Laws 1929.) And nothing in the section providing for rehearing shall "be construed to limit the right of the board," under the above section, "to review, diminish, or increase, within the limits provided by this Act, any compensation awarded upon the grounds that the disability of the person in whose favor such award was made has either increased or diminished or terminated." (Sec. 2956, Rev. Codes 1921.) A third section of the Act, dealing with the same subject, declares: "If aggravation, diminution, or termination of disability takes place or be discovered after the rate of compensation shall have been established, or compensation terminated in any case, where the maximum payments for disability as provided in this Act have not been reached, adjustments may be made to meet such changed conditions by increasing, diminishing or terminating compensation payments in accordance with the provisions of this Act." (Sec. 2924, Rev. Codes 1921, as amended by sec. 6, Chap. 177, Laws of 1929.)
These Acts are in pari materia and must be construed together; so read, they evidence a clear legislative intent that no case in which compensation has been awarded shall be finally closed until the maximum period of payments for the disability for which such award has been made has expired, except that, under the amendment of 1929 to section 2952, above, this power is withdrawn with respect to "any final settlement" after the expiration of two years from the date the order awarding compensation is made, and in cases involving a compromise settlement.
The mere fact, then, that the board purported to make the order of December 19, 1931, "final," is of no force or effect, as that provision of the order was in contravention of the statutes vesting power in the board, and the board could not thus divest itself of the continued jurisdiction vested in it by the Act. ( National Engineering Corp. v. Industrial Accident Commission, 193 Cal. 422, 225 P. 2; Millspaugh Irish Co. v. Lunte, 82 Ind. App. 143, 144 N.E. 147.)
The remaining question for determination is whether or not a [4, 5] showing that an injured workman's disability has continued beyond the period fixed by the board for the payment of weekly compensation without actual change in his physical condition, authorizes the board, in the exercise of its continuing jurisdiction, to extend the period of payments within and up to the maximum provided by the Act. In support of the assertion that such power does not exist, counsel for the company cite cases from Texas, Oklahoma, Missouri, Minnesota and Michigan. These decisions are not persuasive here, owing to the marked difference in the statutes considered.
In Texas, Oklahoma and Missouri the Compensation Act grants power to modify an award only upon "showing a change of conditions" (sec. 12d, Art. 8306, title 130, Rev. Civ. Stats. Texas; sec. 3340, Rev. Stats. 1929, Missouri (Mo. Stats. Ann. sec. 3340, p. 8273); sec. 7296, C.O.S. 1921, Oklahoma); and in Minnesota the board may modify an award "on the ground of increase or decrease of incapacity due solely to the injury." (Sec. 8222, Gen. Stats. 1913, Minnesota.) In the Michigan case cited ( Burley v. Central Paper Co., 221 Mich. 595, 192 N.W. 538, 539), it is true the court stated that it had theretofore held the board has no authority to grant a rehearing of matters already decided by it, but declared: "It has not held that where the physical condition of the injured employee has changed the board may not on petition reopen the case." However, in Michigan "there is no provision in the law for a rehearing after a final order is made" ( Pocs v. Buick Motor Co., 207 Mich. 591, 175 N.W. 125), but by a liberal construction of their Act in order to carry into effect the beneficent purposes thereof, the court holds that the final decision is res adjudicata as to "the essentials leading up to the award, * * * except the physical condition of the injured employee, which naturally and legally remains open to inquiry." ( Beckwith's Estate v. Spooner, 183 Mich. 323, 149 N.W. 971, 972, Ann. Cas. 1916E, 886.) There is nothing in the Burley Case, above, to indicate that the Michigan court would not extend its declaration to include the power to extend the period of compensation, in a proper case, on a showing that the disability continued beyond the period estimated by the board in making the original award.
The Minnesota case cited ( Connelly v. Carnegie Dock Fuel Co., 148 Minn. 333, 181 N.W. 857, 858) merely holds that a judgment in a compensation case cannot be amended by the district court because of judicial error therein, but cites a case ( State v. District Court, 136 Minn. 147, 161 N.W. 391, 392), seemingly supporting the company's view, but pointing out that the section on modification of awards, because of its wording, "was not intended as a method of correcting errors in fixing the amount of compensation." The decision but holds, as do we, that these cases cannot be reopened for the purpose of relitigating matters once determined. Likewise the Oklahoma cases cited are not in point here. Further, the supreme court of Oklahoma has held that section 7296, C.O.S. 1921, which is that portion of their Act fixing the rate and period of compensation in the several classes of disability and providing that compensation shall be paid "during the continuance" of the disability not to exceed a definite number of weeks, a composite of our sections 2912 to 2920, vests in their commission authority to reopen a case and award additional compensation for partial permanent disability found to exist after an award of partial temporary disability "without a change in condition of the claimant." ( Geis Price Grain Co. v. Bailey, 155 Okla. 302, 9 P.2d 424, 425.) This is the extent to which the board is asked to go in the application here denied; the claimant does not seek to relitigate matters finally determined by the former orders of the board.
In legal effect, those orders fixed and determined claimant's right to compensation under the law, and then, by the first order, the board estimated that he would recover from his disability in 26 weeks; this prediction having proved erroneous, by the second order it estimated or prophetized that his disability would not extend beyond 150 weeks. It is true that in the latter order the board declared his disability to be "permanent," but, as used in the Workmen's Compensation Acts, this term does not mean eternal or everlasting, but merely that the disability is lasting or continuous, as distinguished from temporary — that it will be long continuing. ( Sykes v. Republic Coal Co., 94 Mont. 239, 22 P.2d 157.)
Construing a statute which permits a modification of the [6] "award" when it is shown that "the disability of the workman has increased or diminished" in a case similar to the case at bar, the supreme court of Kansas has, we think, correctly stated the purpose of granting the board continuing jurisdiction, as follows: "What effect an injury will have on the capacity to work is necessarily a matter of prediction in most cases. The arbitrator's prediction may not accord with the facts disclosed by lapse of time. Capacity may increase or decrease beyond what the award contemplated, and compensation should be adjusted accordingly. Therefore, review and modification of the award are provided for at the instance of either the employer or employee. A modified award is still likely to rest in prediction and, if the prediction should prove to be wide of the truth, further adjustment to accord with the facts ought to be made.
"In this instance, what was believed to be temporary disability * * * has been found to be permanent. While in one sense the disability has remained constant, it has increased in the sense that it will continue to the end of the period for which the statute allows compensation, three years longer than * * * last predicted. This being true, the court concludes that plaintiff's disability has increased, within the meaning of the statute." ( Corvi v. J.R. Crowe Coal Min. Co., 119 Kan. 244, 237 P. 1056, 1058.)
In our opinion, this is the correct interpretation to be given to the phrase "upon the grounds that the disability of the person in whose favor such award was made has * * * increased" (sec. 2956), even though that phrase may be held to be a limitation of the power of the board to modify its award "upon good cause" (sec. 2952), under the rule of liberal construction of the Act imposed upon the court by section 2964, Revised Codes 1921, and is not in conflict with the declaration of this court in State ex rel. Mulholland v. District Court, above, as the court was there dealing only with the situation presented in that case, and did not there declare that relief under sections 2952 and 2956 is confined to the "change in circumstances" which "the law itself anticipates."
We are aware that in California the two sections similar to our sections 2952 and 2956 were held to be in pari materia and to limit modification to cases showing a change in physical condition, but the people of California evidently did not take kindly to that interpretation, for they amended the Constitution and the Compensation Act to some extent, and thereafter the court held that the power to modify extended to further award for permanent disability when that disability had existed from the beginning. ( Bartlett Hayward Co. v. Industrial Accident Commission, 203 Cal. 522, 265 P. 195.) The California court gave too narrow a construction to the sections quoted in its earlier decisions and thus went contrary to the intention of the legislature.
"Compensation laws proceed upon the theory that the injured workingman is entitled to pecuniary relief from the distress caused by his injury, as a matter of right; * * * that his compensation shall be certain, limited by the impairment of his earning capacity, proportioned to his wages, and not dependent upon the skill or eloquence of counsel or the whim or caprice of a jury * * * and * * * without the economic waste incident to protracted litigation" ( Lewis Clark County v. Industrial Accident Board, 52 Mont. 6, 155 P. 268, 270, L.R.A. 1916D, 628); that "the industry should care for its man power, wrecked by reason of laboring in the industry, just as it must bear the expense of wreckage of machinery used in the same manner. This is but justice as well as humanity." ( Moffett v. Bozeman Canning Co., 95 Mont. 347, 26 P.2d 973, 977.)
As our Act, in common with those in other jurisdictions, [7] declares in each instance with respect to the several classifications of disability, that the weekly compensation fixed under the particular section shall be paid "during the period of disability," a claimant's rights are limited only by the declaration of the legislature as to the maximum number of weeks fixed by it as a limit. "The construction given to the statute must conform to the intent of the lawmakers." ( Stark v. State Industrial Accident Commission, 103 Or. 80, 204 P. 151, 153.)
Aside from the loss of members of the body, the extent of a [8, 9] man's disability is determined by answering the question as to whether or not he is able to earn wages by labor, and, if so, how his earning capacity compares with that before the injury. If he is still able to earn something as wages, his disability is partial; if not, it is total. ( Gailey v. Peet Bros. Mfg. Co., 98 Kan. 53, 157 P. 431; Sinnes v. Daggett, 80 Wn. 673, 142 P. 5.) The board's decision on this question can only be reversed if arbitrary and founded on no substantial evidence. ( Sinnes v. Daggett, supra.)
As the board here found that the injured man could earn no wages, his disability should have been classed as total permanent, and, if necessary here, the action in declaring it "partial" on the board's own finding, might be declared arbitrary. But, in the instant case this classification is, under the statute, immaterial; the man is permanently unable to earn any wages, according to the board's decision, and should receive the weekly compensation fixed "during the period of disability" but not for longer than 500 weeks from and after the date of the injury.
The judgment is reversed and the cause remanded to the district court of Musselshell county for further proceedings not inconsistent with this opinion.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur.