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Show State and the defendant It is not disputed that the plaintiff remains unemployed; offered no evidence that he is employable. Jeff Shipley, Plaintiff, No. 13639 v. Plaintiff's argument that it is mandatory FILED November 18, 1974 k Vf Contracting Company, The Industrial Commission of the State of Utah, et al. , Defendants. C Allan E. Mecham, Clerk CROCKETT, Justice: Plaintiff Jeff Shipley suffered serious injuries, including fractures of his pelvis and lumbar spine when he was crushed under a road grader of his employer, C It W Contracting Company, when it slipped off the jacks while he was replacing a wheel bearing on it near Moab on March 27, 1969. He has been allowed and paid workmen's compensation for temporary total disability for 120 weeks and his already incurred hospital and medical expenses. In addition, the hearing examiner determined that the plaintiff should have 50 per cent permanent partial disability and 50 per cent of his future medical expenses. The Commission adopted and affirmed that order, except that it correctly adjusted the 50 per cent of medical expenses to 100 per cent. Plaintiff here contests the rating of 50 per cent permanent partial disability, arguing that the evidence compels a finding that he is totally and permanently disabled and should have his award on the basis of 100 per cent disability. The point of cleavage in this case is this: The Commission based its rating on the percentage of disability, whereas the plaintiff contends that the rating should be on his employability in a gainful occupation. Hospitalization and medical treatment of plaintiff after the accident did not produce a fully satisfactory result. Two years later, in May 1971, a surgical fusion in his lumbar spine was attempted, which was likewise not entirely successful. His condition seems to have become fixed. He has a continuing numbness in his left leg; wears a back brace; complains that he suffers pain if he attempts to work, or if he walks or stands for any length of time, and that its intensity increases if he sits for long periods or rides in a car; and he uses a cane for walks outside of his home, has difficulty in sleeping; and continues to take substantial medication for pain. At the time of the first hearing on the plaintiff's claim, July 12, 1972, defendant's liability for plaintiff's industrial accident was conceded. The only question for determination 1was as to the amount of disability. The Commission Their diagnosis and report was that the plaintiff appointed a medical panel. had suffered a 50 per cent permanent partial disability. However, before making a final determination, the parties agreed to have an evaluation of plaintiff's employability by the Department of Employment Security and the Division of Rehabilitation Services. Subsequently, two witnesses from that service testified that due to his physical condition, and the facts that he is 52 years of age, has only a seventh grade education and has limited work skills that, in their opinion, he is unemployable in any occupation. Supplementing this, the doctor who performed the spinal fusion operation testified that he did not disagree with the findings of the medical panel, but also believed that the plaintiff was unemployable, based on his last physical examination of the plaintiff in 1971. The plaintiff is presently receiving social security benefits for total disability. 1. See Section U. C. A. 1953. 35-1-- 77, upon the Commission to cent is grounded on the grant him a permanent disability rating of 100 per referred to, that beproposition that the testimony of the witnesses just uncause of his condition which resulted from the industrial accident he is employable, is uncontradicted. are to be made. The Concerning this contention several observations first is that our statutes confer upon the Industrial Commission both the and the prerogative of making the determination as to disability; and this includes that as to any "loss of bodily function not otherwise provided for herein, . . . what the Commission shall deem equitable and in proportion as near as may be to compensation for specific loss as set forth in the schedule t n3 have no disagreement with the plaintiff's argument that it would be clear, credunjust and impermissible for the Commission to obdurately ignore unreasonible and uncontradicted evidence so that its action is arbitrary and able. Yet is not necessarily bound to accept the opinions of any witnessor witnesses, expert or otherwise, as to what its determination should be. If it were so, it should be obvious that this would turn the prerogative entirely over to the expert witness and would relieve the Commission of both its prelike rogative and its responsibility. This would be expecially true in a case disthis where it would seem that the question as to the degree of plaintiff's thereof, and how it comability, both as to the percentage and the permanency 5 pares to specific disabilities listed in the statute, is not a problem in mathematics which can be determined with absolute certainty, but involves the exercise of some judgment upon which reasonable minds might vary in their conclusions. We To be considered in connection with the foregoing is the fact that the burden rested upon the plaintiff to prove the extent of his disability by evidence which persuades the Commission in accordance with his contention. In that connection it is to be had in mind that there was not only the evidence upon which the plaintiff relies concerning his.unemployability, but also the evidence, which he seems to ignore, of the medical panel which rated his disability at 50 per cent; which the Commission elected to believe and adopt as its finding. It is not open to question that if the Commission had chosen to make its findings in accordance with the plaintiff's evidence, that award would be sustained.4 But upon this review it is our duty to survey the total evidence in the light most favorable to the Commission's determination; and to assume that it believed those aspects of the evidence which support its award; and we cannot properly reverse when there is a reasonable basis therein to support the findings and award as made. Affirmed. No costs awarded. " U.C. A. 1953. 6, U.C. A. 1953. 4. This court said in the case of Spencer v. Industrial Comm. , 87 Utah 336, 40 P. 2d 188, that such matters are to be decided by the Commission, and not necessarily bound by the opinions of expert witnesses thereon; see also Garner v. Hecla Mining Company, 19 Utah 2d 367, 431 P. 2d 794. 5. As to Commission's discretion in making such ratings see Markus v. Industria Comm. , 5 Utah 2d 347, 301 P. 2d 1084. 6., Vause v. Industrial Comm. , 17 Utah 2d 217, ,407 P. 2d 1006. 2. Section 3. Section 35-1-8- 5, 35-1-6- v Richard P. Makoff and Sidney (a) The entire net income of the Trust Estate shall be divided each year into equal shares as follows: One share for the then living issue of each of the following named sons of the Settlor, which shares the Trustees shall distribute to such issue upon the principle of representation: Richard P. Makoff Samuel E. Makoff, Jr. G. of the Makoff, as Samuel Makoff Trust No. 101, Plaintiffs and Appellants, Co-Trust- ees v. Richard David Makoff, John Harvey Makoff, Robert Evan (b) Upon the death of the survivor of the above-name- d sons of the Settlor, the Trustees shall divide the Trust Estate into equal shares as follows: One share for the then living son of the Settlor, issue of each deceased above-namwhich shares the Trustees shall distribute in accordance with section 3. 1 (c). Makoff, Defendants and Respondents, And ed No. John Gibbs Makoff, Defendant and Appellant, 13577 FILED November Dolly L. Crooks, Guardian of the Estate of Samuel Bradford Makoff and Collette Makoff, minors, Intervenor and Respondent. 19. 1974 representation. Allan E. Mecham, Clerk ELLETT, Justice: This is an appeal from an adverse ruling of the trial court in granting a summary judgment in favor of the defendants and denying one to the plaintiffs. There is no disputed issue of fact, and since there is merely an issue of law, we need not accord any favored position to the trial court. December 10, 1956, one Samuel E. Makoff, Sr., now deceased, created an inter vivos trust by and between himself and his two sons as trustees for the benefit of "the then living issue of each of the following named sons of the Settlor, . . . " to wit: Richard P. Makoff and Samuel E. Makoff, Jr. The plaintiffs are the present trustees of the trust. The defendants Richard David Makoff, John Harvey Makoff, and Robert Evan Makoff are the natural children of Richard P. Makoff by his first wife, and John Gibbs Makoff is the natural son by a prior marriage of Sidney G. Makoff, the present wife of Richard P. Makoff. The problem arises because Richard has legally adopted John Gibbs On Makoff. The parties wish to know whether an adopted child is included within the term "issue" as used in the Indenture of Trust, the pertinent provisions of which are: 3. 1 (c) Each share set aside for the issue of a deceased son shall be distributed to such issue upon the principle of Upon the death of the Settlor, the Trustees shall con- tinue to hold the Trust Estate subject to the following trust uses and purposes: . . . Specifically, we are required to determine if John Gibbs Makoff, the adopted child of Richard P. Makoff, is entitled to a share in the trust as being the issue of his adopting father. At the time the trust instrument was made, Richard was living with his first wife and their natural children. j The general rules of construction of written instruments apply to the construction of trust instruments, and those rules require a determination of the intention of the settlor where the creation of the trust is a unilateral matter. However, in case the trust is based on a written instrument, the intention of the settlor must be ascertained from the language thereof, and the court may not go outside of the language in an effort to give effect to what it thinks the intent was. If the language is unambiguous, there is no need for wondering what the true intent may have been, and parol evidence is inadmissible to vary the terms set out. 2 However, in ascertaining the intention of the settlor we may consider the entire instrument aided by the surrounding circumstances existing at the time of creation of the trust. At the time of the creation of the trust neither of the sons of Samuel E. Makoff, Sr. , had been divorced, and there was nothing to bring to the attention of the settlor that there might be adopted children brought into either of the families. The use of the word "issue" as being the class which he wished to benefit should be given its then natural meaning. The definition given in 57 Am. Jur. , Wills, 1378 is as follows: The term "issue," according to the almost universal consensus of opinion, includes descendants of every degree and is |
