United States Fidelity & Guaranty Co. v. Industrial Accident Commission

SEA WELL, J.

On November 30, 1923, Thomas Frazier, while engaged as a miner in the employ of Visalia Masonic Mining Company, operating in Mono County, this state, suffered injuries from a blast unintentionally set off, which resulted in the permanent destruction of the sight of his right eye and a sixty per cent loss of hearing of the right ear. Said Frazier had, about 35 years prior to sustaining the injuries above mentioned, suffered the loss of the sight of his left eye and a slight impairment of the hearing of his left ear. By the accident of November 30, 1923, he was rendered totally blind and his hearing was impaired by the double injuries thus sustained.

Petitioner, insurance carrier of the employer of said Frazier, assumed liability for compensation on the basis of the loss of the sight of one eye and not for total blindness, and for medical attention. Compensation payments were made at the maximum rate for such injuries, to wit, $20.83 per week. The record of the proceedings is meager, due largely to the informality with which such proceedings are conducted. It appears from the record that on February 1, 1924, Dr. Victor d’Ercole, the attending physician of said injured employee, forwarded to the rating department of the Commission a report of the injuries which said employee had sustained and a report on his general physical condition. The petitioner alleges that Frazier requested permanent disability rating by the rating department of the Commission and said medical report was filed with his petition or request for said rating. We find no such request in the record, and whether said request was made by him orally or in writing or by his employer is not made certain. The report was made upon a form blank adopted by the Commission. The report filed with the rating department contained the information that said employee had previously suffered the loss of the sight of the left eye, and that the vision of the right eye was probably destroyed.

On December 5,1924, the injured employee, Frazier, and petitioner, United States Fidelity and Guaranty Company,

[90]

agreed to a commutation of the compensation under the Workmen’s Compensation Act (sec. 28 [Deering’s Gen. Laws 1923, Act 4749]), payable in a lump sum, and requested the approval of the Commission of said agreement. The injury was stated to consist of “loss of sight of right eye; 60% loss of hearing of right ear. Rated 122 weeks. The disability is permanent partial. . . . The present value of the final 38 weekly payments commuted at 6% as of December 5, 1924, is $748.00.” No mention was made in the commutation agreement that the latest injury left the employee totally sightless. On the day the agreement was signed by said Frazier and petitioner, W. P. Ratliff, secretary of the Commission, certified the approval of said agreement by said Commission. The petitioner herein alleges that on April 14, 1924, the final rating of said Frazier’s disabilities was made by the rating department of said Commission for the loss of sight of the right eye and a sixty per cent loss of hearing of the right ear, amounting to 122 weeks of disability payments at $20.83 per week. This rating by the department, it is alleged, was advisory merely. Respondent Commission and Frazier claim that whatever rating was made by the rating department was informal and was made without consideration of all the facts, and especially the fact that Frazier was rendered totally blind by the latest injury, and that the Commission was empowered to make an award commensurate with the injuries actually suffered.