The right of an employee to recover compensation for an accident arising out of and in the course of his employment; the procedure for the recovery thereof; the defenses thereto, and all phases of the premises have been fixed by statute. (I. C. A., sec. 43-902.) In violation of the statutes of Idaho governing this subject the industrial accident board, March 14, 1919, without notice to the claimant, without hearing, without finding of fact, ruling of law or order of award, approved a recommendation of the manager of appellant, state insurance fund, that respondent be paid half the amount which the undisputed facts now show is due him for total, permanent disability from injury by accident arising out of and in the course of his employment. According to statutes, heretofore construed in a similar case, such payment is neither final nor conclusive on respondent, because the public policy of the state, announced by the legislature, forbids payment of a claim of this kind with less money than the injured workman is by law entitled to.
Section 43-1005 is as follows:
"No contract, rule, regulation or device whatsoever shall operate to relieve the employer in whole or in part from any liability created by this act, other than as provided in sections 43-1006 and 43-1108."
Neither sec. 43-1006 nor 43-1108 has any bearing on this case. Section 43-1402 is:
"If the employer and the injured employee reach an agreement in regard to compensation under this act, a memorandum of the agreement shall be filed with the board and, if approved by it, thereupon the memorandum shall for all purposes be enforceable under the provisions of section 43-1410 unless modified as provided in section 43-1407. Such agreements shall be approved by the board only when the terms conform to the provisions of this act."
In this case the employer and injured employee did not reach an agreement in regard to compensation for the latter's permanent disability. No memorandum of such agreement was filed with the board, nor approved by it, and the recommendation of the manager of appellant, state insurance fund, which the board did approve, did not provide for payment of *Page 705 enough money to respondent to conform to the provisions of the law.
In the majority opinion the court calls attention toEldridge v. Idaho State Penitentiary, 54 Idaho 213,30 P.2d 781, and Hanson v. Independent School Dist., 57 Idaho 297,65 P.2d 733, and says: "We entertain no purpose whatever of departing in any respect from the rules announced in those decisions." Whatever the purpose of the court may have been in so doing, it violates the statutes, in this case, which it followed in the Hanson case, and upholds the board in approving the payment to an injured workman of less than his due, which it refused to approve in that case. This case can neither be distinguished from nor reconciled with our former decision and is a long step in the wrong direction.
In the majority opinion, referring to the recent action before the board, it is said:
"Here no evidence whatever was introduced except the testimony of the claimant himself and a neighbor who had seen him intermittently since 1922. . . . . There was no legal evidence before the board at this recent hearing sufficient to establish the fact that claimant had suffered a totaldisability prior to the time he wrote his letter of May 10,1923, making inquiry about his monthly payments and asking that they be continued; nor did he make any complaint at that time of total disability.
"There is evidence in the record which may be deemed sufficient to establish the fact that claimant is now totallydisabled; that is no doubt the combined result of the accident and advancing age."
Based on this statement of the facts established the court holds:
"We think there is sufficient showing to support a finding as to change in condition from partial disability to total permanent disability at this time and that the order may properly be affirmed as to the weekly payments of $6, dating from the filing of claimant's petition (February 28, 1939) for a review on the theory of changed condition."
The testimony referred to, of claimant and his neighbor, is all the evidence in the record tending to establish permanent, *Page 706 total disability, and it is undisputed. It is ample to sustain the board's ruling wherein respondent was awarded full compensation for permanent, total disability. Section 9, article 5, of the constitution, as amended and ratified at the general election in 1936, provides:
"On appeal from orders of the Industrial Accident Board the court shall be limited to a review of questions of law."
The decision in this case is a violation of that constitutional provision.
The evidence which justifies the court in holding, as it does, that the order should be affirmed as to the weekly payments of $6, from February 28, 1939, also consists of the testimony of claimant and his neighbor. However, that holding should not be based on the statement that the changed condition is "the combined result of the accident and advancing age." Workmen's compensation cannot be made to take the place of old age pensions. That testimony is equally sufficient to support the entire order of the board which awarded to respondent, in addition to $6 a week, compensation in the sum of $3,572.64, and it should be affirmed.
Petition for rehearing denied.