Page v. McCain Foods, Inc.

Decision Date31 January 2008
Docket NumberNo. 33158.,33158.
Citation145 Idaho 302,179 P.3d 265
PartiesVerdene PAGE, Claimant-Appellant, v. McCAIN FOODS, INC., Employer, Transcontinental Insurance Company, Surety, Defendants-Respondents.
CourtIdaho Supreme Court

L. Clyel Berry, Chtd., Twin Falls, for appellant. L. Clyel Berry argued.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for respondent. Glenna Mae Christensen argued.

BURDICK, Justice.

This is an appeal from a decision by the Industrial Commission on a workers' compensation claim. The claimant asks the Court to decide whether the determinations are supported by substantial and competent evidence, whether her motion to reconsider was timely filed, and whether she is entitled to attorney fees. We affirm in part, reverse in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant VerDene Page was employed by McCain Foods, Inc. (McCain). On August 17, 2001,

Page felt her left knee "grab" and experienced pain in the knee as she rose from a chair in the break room at work. She rubbed the knee and the pain went away. A couple hours later, Page was seated at a table engaged in doing a "key report." She rose from her seat, her left leg "grabbed" again and she experienced pain in her knee.

Page v. McCain Foods, Inc., 141 Idaho 342, 344, 109 P.3d 1084, 1086 (2005).

Page filed a claim for workers' compensation benefits. The Idaho Industrial Commission (the Commission) determined that Page sustained a torn meniscus in her left knee, on which Dr. Joseph R. Petersen performed surgery, and that Page suffered from several preexisting conditions including degenerative disc disease and degenerative joint disease. The factual conclusions also showed that since August 17, 2001, Page has been treated for several conditions including back pain, knee pain, a panic attack, and depression. Ultimately, however, the Commission denied Page's claim. Page appealed, and subsequently this Court reversed and remanded the claim holding the Commission erred in concluding Page's claim was barred for lack of proper notice and in concluding Page did not experience an "accident." Page, 141 Idaho at 349, 109 P.3d at 1091.

On remand, the Commission awarded Page total disability and related medical care benefits through November 26, 2001, awarded Page a "1% whole person" permanent impairment, and awarded Page a 5% permanent partial disability resulting from the accident. The Commission also determined Page failed to show she qualified for "odd-lot" status and determined she was not entitled to attorney fees for the first appeal.

Page made two motions to reconsider, a motion for additional findings, a motion to reopen the record, and a motion to review the record to correct a manifest injustice. The Commission denied these motions. Page once again appeals.

II. STANDARD OF REVIEW

The Court may set aside an order or award by the Industrial Commission if: (1) the commission's findings of fact are not based on any substantial competent evidence; (2) the commission has acted without jurisdiction or in excess of its powers; (3) the findings of fact, order or award were procured by fraud; or (4) the findings of fact do not as a matter of law support the order or award. I.C. § 72-732; Ewins v. Allied Sec., 138 Idaho 343, 345-46, 63 P.3d 469, 471-72 (2003). This Court exercises free review over the Commission's legal conclusions but does not disturb factual findings that are supported by substantial and competent evidence. Ewins, 138 Idaho at 346, 63 P.3d at 472. "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. This Court views all facts and inferences "in the light most favorable to the party who prevailed before the Commission." Taylor v. Soran Rest., Inc., 131 Idaho 525, 527, 960 P.2d 1254, 1256 (1998) (internal quotations and citation omitted).

III. ANALYSIS

On appeal, Page argues that she should have been awarded benefits beyond November 26, 2001, that the Commission should have reviewed its order to correct a manifest injustice, that she suffered more than a 1% whole person permanent impairment and more than a 5% permanent partial disability, and that she is totally and permanently disabled pursuant to "odd-lot" theories. Page also asserts her motion to reconsider was timely filed and that the Commission's failure to address the merits of the motion was error. Finally, she contends the Commission erred when it failed to award Page attorney fees for the first appeal and that Page is entitled to an award of attorney fees for the present appeal.

A. Manifest Injustice

The Commission concluded Page was entitled to income benefits and medical benefits for her knee injury from August 18, 2001, through November 26, 2001. Page argues the Commission erred by terminating Page's income and medical benefits on November 26, 2001, and that the Commission should have reopened the case to correct a manifest injustice. We agree the Commission should have granted Page's motion to reopen the case to correct a manifest injustice and remand the case so the Commission can reconsider the date of medical stability in light of Page's motion.

A claimant is entitled to income benefits for total and partial disability "during the period of recovery." I.C. § 72-408. The statute does not define "period of recovery," but this Court has said the period of recovery ends when the worker is medically stable. Hernandez v. Phillips, 141 Idaho 779, 781, 118 P.3d 111, 113 (2005). Additionally, an employer must provide reasonable medical care for an injured employee "as may be reasonably required by the employee's physician or needed immediately after an injury . . . and for a reasonable time thereafter." I.C. § 72-432(1).

The Commission concluded Page was in a period of recovery from August 18, 2001, through November 26, 2001. Dr. Petersen, who performed surgery to repair Page's meniscus tear initially, opined Page was medically stable as to her knee on November 26, 2001. The parties agree that Page was scheduled to see Dr. Petersen on November 26, 2001, but did not show up for the appointment. In its order denying Page's second motion for reconsideration, the Commission indicates it "gave greater weight and credibility to the evidence presented by Dr. Petersen."

Page moved the Commission to review its order to correct a manifest injustice. In her motion, Page argues that it was a manifest injustice to terminate Page's income and medical benefits on November 26, 2001, because the only evidence supporting that determination is testimony by Dr. Petersen revealing he did not actually examine Page on that date. Additionally, Page supported her motion with a letter written by Dr. Petersen stating Page was not medically stable on November 26, 2001, that he was not previously aware that Page had followed up with Dr. Hicks after missing her November 26, 2001, appointment with Dr. Petersen, and furthermore, that Page has since followed up with Dr. Petersen and currently needs additional treatment which is partially attributable to Page's accident.

The Commission may review any order to correct a manifest injustice. I.C. § 72-719(3). The fact that I.C. § 72-719(3) becomes operative on the Commission's own motion "does not preclude the Commission from exercising its powers when notice of a purported manifest injustice is brought to its attention either by a party or a third party." Banzhaf v. Carnation Co., 104 Idaho 700, 703, 662 P.2d 1144, 1147 (1983). Manifest injustice as a ground for review of an order "must be construed broadly." Sines v. Appel, 103 Idaho 9, 13, 644 P.2d 331, 335 (1982).

The Commission denied the motion to review its order to correct a manifest injustice stating there was insufficient factual basis to warrant a review.

In this case, it is clear that in determining Page's medical stability date the Commission relied exclusively on Dr. Petersen's statement that Page achieved clinical stability on November 26, 2001. Dr. Petersen was the only person to testify Page achieved clinical stability on that date, and the Commission noted it placed great weight on his testimony. It is unrebutted that Dr. Petersen's statement was not based upon an examination of Page or other medical follow-up. Therefore, contrary to the Commission's conclusion, a subsequent letter from Dr. Petersen stating that Page had not actually achieved medical stability on November 26, 2001, combined with the absence of any other evidence in the record to support the Commission's finding of medical stability constitute a sufficient factual basis to warrant review of the case to correct a manifest injustice. This is not to say that every medical provider who changes their mind provides grounds for an argument of "manifest injustice." Here, there was no evidence to support Dr. Petersen's original opinion of clinical stability and then when the relevant facts were brought to his attention he reviewed his record and appropriately revised his opinion. Thus, the Commission's denial of Page's motion for review to correct a manifest injustice is reversed and the case is remanded.

B. 1% Permanent Partial Impairment

Page argues the Commission's determination that Page is entitled to only a 1% partial impairment was error because it lacks the specificity necessary for meaningful appellate review, did not sufficiently compare Page's pre-injury presentment with her post-injury presentment, and is not supported by substantial and competent evidence.

A determination of physical impairment is a question of fact for the Commission. Soto v. J.R. Simplot, 126 Idaho 536, 539, 887 P.2d 1043, 1046 (1994). This Court does not scrutinize the weight and credibility of evidence relied on by the Commission and will not disturb any findings regarding weight and credibility unless they are clearly erroneous. Id.

Permanent impairment "is any anatomic or functional abnormality or loss after maximal medical...

To continue reading

Request your trial
8 cases
  • Davidson v. Riverland Excavating, Inc.
    • United States
    • Idaho Supreme Court
    • May 29, 2009
    ... ... Did the Commission err in failing to apportion disability as set forth in Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008)? ...         3. Is there ... ...
  • Fowble v. Snoline Exp., Inc.
    • United States
    • Idaho Supreme Court
    • August 1, 2008
    ... ...         I.C. § 72-732; Page" v. McCain Foods, Inc., 145 Idaho 302, 305, 179 P.3d 265, 268 (2008) ... IV. LEGAL FRAMEWORK ...  \xC2" ... ...
  • Sevy v. SVL Analytical, Inc.
    • United States
    • Idaho Supreme Court
    • December 22, 2015
    ...evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Page v. McCain Foods, Inc., 145 Idaho 302, 305, 179 P.3d 265, 268 (2008) (quoting Ewins v. Allied Sec., 138 Idaho 343, 346, 63 P.3d 469, 472 (2003) ). "This Court views all facts and infe......
  • Christensen v. S.L. Start & Associates
    • United States
    • Idaho Supreme Court
    • May 1, 2009
    ...Claimant contends that the Commission's decision in this case is not in conformity with this Court's opinion in Page v. McCain Foods, Inc., 145 Idaho 302, 179 P.3d 265 (2008). Page contended that the injury from her industrial accident combined with her pre-existing physical impairments to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT