Am. Smelt. Ref. Co. v. Ind. Comm. of Utah

The Industrial Commission of Utah awarded Adolph Ofgreen compensation because of a permanent injury sustained by him. The injury consisted in the loss of a finger and the partial loss of the use of his left hand. Mr. Ofgreen was injured in the course of his employment by the plaintiff at its smelter at Murray, Utah. Plaintiff prosecutes this proceeding to review the award. This is the second time this cause has been before us for review. In the former review the award was annulled. American Smelting Refining Co. v. Industrial Commission of Utah, 76 Utah 503,290 P. 770. At the first hearing the commission found that "the evidence shows that Mr. Ofgreen has refused in this *Page 304 case proper medical aid tendered to him as a result of which he contracted a very severe infection resulting in the entire loss of the great finger of the left hand and at this time a considerable loss of function of the left hand in the wrist." The commission by its former findings sought to excuse Mr. Ofgreen's refusal to accept treatment by a further finding that "he was very timid and probably over-sensitive to any pain that would follow surgical treatment and for that reason he refused the treatment suggested by the attending physician rather than willfulness on his part to thwart the purposes of the surgeon or to extend the period and extent of his disability period." When this cause was before us on the former review, we held that the finding of the commission "that Mr. Ofgreen has refused * * * proper medical aid tendered to him and as result of which he contracted a very severe infection resulting in the entire loss of the great finger of his left hand * * * and considerable loss of function of the left hand at the wrist" was supported by the evidence and that such finding precluded Mr. Ofgreen from a right to compensation for the injury caused by his refusal to accept treatment of his injury. We further held that the fact that Mr. Ofgreen was timid and probably oversensitive to pain was not a legal excuse for his refusal to accept proper medical aid. After the former award was annulled, the Industrial Commission granted a rehearing, and at the rehearing further evidence was 1-4 offered touching the question of whether or not Mr. Ofgreen's finger and the use of his hand would have been saved if he had submitted to proper medical treatment. Upon the original hearing as well as upon the rehearing it was conceded that Mr. Ofgreen received an injury while employed by the American Smelting Refining Company. The plaintiff company has never made any claim to the contrary. What the company contends is that it is not liable for the permanent disability sustained by Mr. Ofgreen because the immediate or proximate *Page 305 cause of his permanent injury was his unreasonable refusal to submit to the treatment of the injury which he sustained while in the employ of the company. That was the sole question of inquiry at the rehearing. The commission in the findings now before us for review has made no findings on that issue. Its findings are confined to facts that were not in issue, except as to the extent of the permanent disability sustained by Mr. Ofgreen. It may be that the commission adheres to its former views, it may have believed the fact to be otherwise, it may have refrained from making any finding on the issue before it in the mistaken belief that such a finding is immaterial, or it may be that the commission purposely refrained from making any finding as to the result of the refusal of Mr. Ofgreen to accept medical treatment and thereby evade the effect of the law announced by this court in its former opinion. We are at sea to know what the commission believed the fact to be on that all-important issue. When an award of compensation bottomed upon written findings of fact is brought here for review, and the sufficiency of the findings to support the award is questioned, this court is required to determine whether the findings of fact support the award. Laws Utah 1919, c. 63, p. 165. It is difficult to see how this court can perform the duty thus imposed upon it by law where the findings are silent as to the sole fact at issue, a fact of controlling importance. It is urged in support of the award now under review that the commission is not required to make written findings of fact. There are cases wherein this court has so held. It however, by no means follows that, where written findings are made, such findings may be said to be sufficient to support an award, even though they do not find upon the material issues which divided the parties. Where findings are not made by the commission, the situation is analogous to a case where findings are waived in an action tried to a court. When no findings are made, it will be presumed, where there is evidence to support the award or the judgment that the facts actually *Page 306 found are in accord with the award or judgment rendered. Where there are written findings of fact, and the claim is made that such findings do not support the award or judgment, it becomes necessary for a reviewing court to examine into the findings in the light of the issues to ascertain whether the award or judgment is supported by the facts as found. A reviewing court may not well apply one rule for testing the sufficiency or insufficiency of the findings to support an award made by the Industrial Commission and a different rule when dealing with a judgment rendered by a court. There is nothing in the Workmen's Compensation Act which indicates that a different rule should be applied in testing the sufficiency of the findings to support an award than in testing the sufficiency of the findings to support a judgment. The reasons upon which the rule is founded are present alike in both cases. The fact that the commission is not required to make written findings does not justify the conclusion that, when written findings are made, they shall not be treated according to approved rules. Especially cannot the presumption be indulged in the instant case that the commission found all of the facts which are necessary to sustain the award in favor of the applicant. The last and only finding made by the commission as to the immediate or proximate cause of the permanent partial disability of the applicant was, in legal effect, a finding that the present impairment of the use of his left hand was caused by his failure to accept proper medical treatment. To say that the commission changed its mind in the light of the additional evidence offered at the second hearing would be a mere guess. If the commission were of the opinion that the failure of the applicant to accept proper medical treatment was not the proximate cause of the infection and resulting partial loss of the use of his hand, it would have been a simple matter to have so found. This is not a case where no findings of fact were made. The commission having made findings of fact, it must be assumed that it found on all the facts that it deemed necessary to its decision. Otherwise the facts *Page 307 found could serve no useful purpose. When the commission undertakes to make findings, it should find upon all of the material issues, otherwise a reviewing court is powerless to determine whether the award should be affirmed or annulled. A reviewing court cannot determine whether an award is or is not supported by the findings, where, as here, the findings are silent as to the only fact in issue, a fact which must be known before the law applicable to the cause can be announced with even a semblance of assurance that the right result has been reached. One of the findings made by the commission on the second hearing reads as follows: "On February 7th, 1929, the said Adolph Ofgreen, while engaged in dumping a railroad car for the defendant employer, caught his left hand between 5-7 dumping lever and end of car, sustaining abrasion to his thumb, badly lacerated index finger, laceration of middle finger with fracture of proximal phalanx, as a result of which it was necessary to amputate applicant's middle finger at the proximal joint by reason of infection resulting from said injury sustained on February 7th, 1929, and that as a result of said injury the applicant has sustained 33 1/3% loss of function to his left hand at the wrist." A similar finding was made by the commission at the first hearing. It is urged that the above finding negatives any inference that the commission believed that the failure of Mr. Ofgreen to accept medical treatment was the proximate cause of the infection and resulting loss of function of his left hand. The remote cause of the partial permanent disability sustained by Mr. Ofgreen was the injury which he received while working for the plaintiff at its Murray smelter. No one has made any claim to the contrary. The finding relied upon to support the present award cannot fairly be said to be equivalent to a finding that the proximate cause of the present disability sustained by Mr. Ofgreen was the injury which he received while working at plaintiff's smelter, and that his refusal to accept medical treatment had nothing to do with the infection which, according *Page 308 to all of the evidence, made it necessary to amputate the finger. To so hold would be to give a meaning to the finding not conveyed in the language used. It is further urged on behalf of the plaintiff that the commission was without jurisdiction to grant a rehearing. The hearing had before the commission after the first award was annulled was not, as that term is generally used, a rehearing. It was more in the nature of a new trial. Our Workmen's Compensation Act, Laws of Utah 1919, c. 63, p. 165, directs that "upon the hearing the [Supreme] court shall enter judgment either affirming or setting aside the award." When this court makes an order merely setting aside an award, such order, in the absence of a direction to the contrary, entitles the defeated party to a retrial of the issue before the Industrial Commission. The legal effect of the former order annulling the award was to grant a retrial, and such is the effect of the present order. The Industrial Commission had jurisdiction to hear this cause after the former award was annulled by this court. The award is annulled. EPHRAIM HANSON, J., concurs.