Branson v. Firemen's Retirement Fund of Idaho

KEETON, Chief Justice

(dissenting).

On July 2, 1947, deceased Branson filed á claim with the Industrial Accident Board in which he stated that on June 29, 1947, while employed as a fireman, he humped his knee on the door of a truck while entering to respond to a fire alarm. The injury was apparently not considered serious as he continued to work until January 15, 1948. Complications developed and thereafter in a proceedings had before the Board and agreements entered into between the deceased, employer and surety, he was paid compensation from January 15, 1948 to July 25, 1951 in the sum of $3312, and for partial permanent disability, $641.52, and additionally, doctor and hospital bills, $1260.50. In June, 1952, deceased entered into an agreement with the City of Pocatello and the Firemen’s Retirement Fund for additional payment of $488.15, and at that time deceased agreed that the amounts paid were accepted as full and complete satisfaction of all claims growing out of the accident.

In March, 1952, deceased was found to be surgically healed. He was employed by the City of Pocatello as a fireman from March 2, 1952 to August 31, 1952, and earned $1581.31. During 1951, 1952 and 1953, while not employed as a fireman, he was employed as deputy sheriff of Bannock County and earned $5915.48. His employment as deputy sheriff ceased November 7, 1953. At a subsequent further hearing had before the Board on December 3, 1953, the Board disallowed further compensation from which no' appeal was taken.

Branson died in December, ' 1953. In September, 1954j his widow petitioned the *177Board to recover from the Firemen’s Retirement Fund death benefits claiming that during the year 1952, while deceased was employed by the City of Pocatello as a paid fireman, the injury of June 29, 1947 was so aggravated by activities required In the line of duty as to cause the death of deceased. In an answer the Fund denied the material allegations of the petition and in an affirmative defense alleges that the matters complained of are res judicata; that the claim is barred by the statute of limitations, namely, Secs. 72-407, 72-607 and 72-608, I.C. By order entered October 18, 1955, the Board denied the claim.

At the hearing before the Board, Dr. Arch Wigle, attending physician was called as a witness. He testified that he had attended deceased subsequent to the injury of 1947; that deceased was surgically healed from the injury in 1952; that in the fall of 1952 he was again called and found an acute inflammation of the knee which he had previously found surgically healed and that deceased told him he had injured his knee on a ladder. The inflammation or cellulitis found by the doctor was, in his opinion, caused by deceased’s occupation. On February 27, 1953, the doctor found that deceased was suffering from cancer. His leg was amputated above the knee and deceased was discharged from the hospital July 9, 1953, and later returned to work. The doctor then made the following qualified statement: “I feel the cancer here can 'definitely - be related, so far as my clinic'al records indicate for the time I had been treating him since 1947”. As to the cause of death, the doctor testified: “I felt it was generalized sarcomatosis, — generalized spread of cancer through the system”, and

“Q. I understand you have just testified you do not know what causes cancer ? A. That is correct.
“Q. And then following that you would not know what caused Mr. Bran-son's generalized sarcomatosis? A. Well if you want to pin me to that question, I think you should let me qualify it.
. “Q. I would like to have you answer that question first, Doctor. A. I can’t answer it yes or no, unfortunately.
“Q. Do you mean to say you do not know, in your own mind, what caused it? You can’t answer the question as to whether you know? A. I can give you at least thirty different things that reputedly cause cancer and injury is one, x-ray radiation and accident.
“Q. Has that been proven? A. Indeed it has. When you ask me can I give you the cause of cancer I have to qualify in that way since there is no known single cause of cancer.
“Q. Do I understand your testimony here to be that Mr, Branson had ah ■injury in 1947 and there was no malignnancy appeared until 1953 in February, *178that it is your testimony that that is what caused the cancer, is that correct?. A. That is correct.”
(Emphasis supplied.)

No other medical testimony was introduced.

In my opinion, viewed in the light most favorable to claimant, there was no causal connection shown by the evidence between the knee injury in 1947 and the death in 1953.

The claim is based on Sec. 72-1414, subd. (C), I.C.:

“In event a paid fireman is killed or sustains injury, from which death results, while in performance of his duty, and leaves surviving him a widow, his widow shall, during the time she remains his widow and does not remarry, be paid from the said fund the monthly sum of ninety-five dollars * *

In the present situation the deceased during his lifetime recovered all sums payable under the Workmen’s Compensation Act and the Firemen’s Retirement Fund.

The petition for hearing was evidently based on the theory that deceased suffered an accident while employed' as a fireman in 1952. Paragraph III of the petition reads:

“That during the year 1952 and while employed by the City of Pocatello as ■a ‘paid fireman’ the above-mentioned .injury was so aggravated by activities required in the line of duty as to cause vthe death of said deceased.”

The doctor in his testimony testified that the injury and the work which deceased was doing were related.

I would affirm the order of the Board. Claimant failed to sustain the burden of proof to show the deceased sustained an injury from which death resulted. He died, from a common ailment; six and one-half years elapsed after the injury until the time of his death in 1953. No cancerous condition was discovered for more than five years after the alleged injury and the doctor who attended deceased reported him as surgically healed in 1952.

The finding of the Board: “the accident of June 29, 1947 was in all probability an antecedent cause of Branson’s cancer and of his death years after the accident. * * * ” is based on a qualified, contradictory opinion of one doctor and not sustainable by the evidence.

I am also of the opinion that the time for presenting claims against the Firemen’s Retirement Fund is covered by the statute of limitations contained in the Workmen’s Compensation Law. The Firemen’s Retirement Act does not and was never intended to cover a death occurring six and one-half years after an accident. If a fireman were killed on the job, or died the result of an .injury within two years after the accident, Sec. 72-301, I.C., his widow and dependents, under conditions prescribed, are entitled to an award, not otherwise.

It is inconceivable that the Legislature .'did. not intend any time limit to apply to *179death benefits under the provisions of Sec: 72-1414(C), I.C. and it is apparent that the Legislature intended that a death benefit claim against the Firemen’s Retirement Fund must be filed with the Industrial Accident Board within the time prescribed by the Workmen’s Compensation Law, Secs. 72-407, 72-607 and 72-608, I.C., and that the death of the injured fireman must occur within two years subsequent to the accident, Sec. 72-301 and Sec. 72-1423, I.C.

As the record does not show a right of recovery, and because the claim is barred by the statute of limitations, the order should be affirmed.