Blackwell v. Omark Industries

• Decision Date: 18 March 1988
• Docket Number: No. 16786,16786
• Citation: 752 P.2d 612,114 Idaho 10
• Parties: Jerry E. BLACKWELL, Claimant-appellant, v. OMARK INDUSTRIES, Employer, and Wausau Underwriters Insurance Company, Surety, Defendants-respondents.
• Court: Idaho Supreme Court

Page 612

752 P.2d 612

114 Idaho 10

Jerry E. BLACKWELL, Claimant-appellant, v. OMARK INDUSTRIES, Employer and Wausau Underwriters Insurance Company, Surety, Defendants-respondents.

No. 16786.

Supreme Court of Idaho.

March 18, 1988.

Clark & Feeney, Lewiston, for claimant-appellant. Paul T. Clark argued.

Lukins & Annis, Coeur d'Alene, for defendants-respondents. Edgar L. Annan argued.

BAKES, Justice.

Appellant Blackwell appeals from a decision of the Industrial Commission denying his claim for worker's compensation benefits. The Industrial Commission, after conducting a hearing, found that (1) Blackwell failed to prove that he incurred an industrial accident and injury as alleged in his application for hearing; and (2) Blackwell did not give notice of injury to the employer within sixty days as required by I.C. § 72-701, nor did the employer have actual knowledge of any injury to Blackwell. We affirm the commission's decision.

Claimant Blackwell was employed full time by Omark Industries (Omark) from September, 1975, to April 24, 1985. His most recent position was in the primer metal parts department, as a setup worker. Blackwell's duties included a considerable amount of heavy lifting.

Blackwell had a history of prior accidents. On October 30, 1978, while employed at Omark, Blackwell suffered an industrial injury to his lower back. He immediately informed his supervisor, and the appropriate forms were completed within three days. Four years later, in 1982, Blackwell suffered another industrial injury when machine lubrication got in his eyes and on his face. The appropriate forms were completed the next day.

Blackwell testified at the commission hearing that he was aware of Omark's procedures for reporting industrial accidents. It was also shown that Omark employees are encouraged to report industrial accidents (although minor injuries frequently go unreported), but that substantial prizes are awarded to employees with accident-free records.

In addition to the above referenced industrial injuries, Blackwell injured his lower back in September, 1983, in a fall from a horse. This accident resulted in treatment by William Bond, M.D. Dr. Bond testified that, as a result of the fall from the horse, Blackwell experienced pain in the lumbar sacral area and right hip. The symptoms included lower back and hip pain, muscle spasms, and occasional paresthesia. However, even in the month preceding the horse incident Blackwell suffered lower back pain, "especially with lifting at Omark." Blackwell acknowledged having obtained approximately 50 chiropractic treatments to his upper and lower back from April, 1979, through October, 1984.

The instant action stems from an incident allegedly occurring in early 1985. In his testimony before the commission, Blackwell stated that on February 6, 1985, toward midday, his back was injured while loading an 800-pound roll of steel through a press. The pain was on his right side and radiated down into his right leg. Blackwell worked the remainder of that day, and the next day, February 7, 1985, he sought medical care from Dr. Bond.

Dr. Bond personally testified at the hearing. His records show that he examined Blackwell on February 7, 1985, regarding both sinus and lower back complaints. Dr. Bond's medical history included Blackwell's statement "that he had been trying to pry a heavy roll, but during this time is when he sustained an injury to his back and had problems with it since that time." X-rays revealed a narrowed disc at L5-S1. Bond's diagnosis was lumbro sacral strain. Dr. Bond testified, "I feel reasonably certain that the one injury described by him where he was attempting to pry the large roll up was, indeed, a large factor in his problem. Whether it was the instigating factor, I don't know."

On February 11, 1985, Blackwell had a conversation with his immediate supervisor, Harold Hedrick. Blackwell testified that, although he did not request an accident report form, he informed Hedrick of the accident. Hedrick remembers the conversation, but testified it only concerned Blackwell's upcoming termination of employment and return to school, not any alleged February 6, 1985, accident. ¹ Consistent with Hedrick's testimony that Blackwell made no mention of any industrial accident, Blackwell did not have his medical expenses billed to the employer's worker's compensation carrier, but rather had his non-industrial group medical insurance billed for the visit to Dr. Bond. He testified before the commission that the reason he did it that way was because he "didn't know how they would do with dividing one [the sinus problem] and the other [the back problem]." Blackwell testified that he personally told Hedrick's supervisor, Doug Glenn, about the accident in the week following February 11. Glenn denied any knowledge of the alleged accident, however, until late April, 1985. Blackwell claims he also told numerous co-workers about the accident. Certain of them testified in his behalf, although none were around when the alleged accident occurred and had no personal knowledge of it, nor were they present when Blackwell had the above referenced conversations with Hedrick and Glenn.

Blackwell terminated his Omark employment on April 24, 1985. Omark regularly conducts exit interviews with terminating employees. During his interview, Blackwell told Carol Schwartz, Omark's personnel manager, he was leaving to go to school in Portland. The interview form clearly states, "Bad back forces him to look for other occupation." Although Blackwell's testimony is contrary, Schwartz testified that Blackwell never told her his back problems were due to an accident on February 6, 1985.

On April 26, 1985, Dr. Bond again examined Blackwell. Blackwell had the same pain as before, but in the "past months pain has become much more severe." Blackwell reported "he hurt it again on Tuesday" (presumably a few days prior to April 26th). Dr. Bond suspected problems with a disc and referred Blackwell to Dr. Donati, a Spokane orthopedist. After a May 8, 1985, visit and a later CT scan, Dr. Donati found Blackwell had a herniated disc.

Within a week of his termination, Blackwell contacted Glenn, inquiring whether a claim of an on-the-job injury had been reported by Hedrick. Omark claims this is the first it knew that Blackwell was claiming an accident occurred in February, 1985. Glenn checked and found no such report. Accordingly, pursuant to Glenn's instructions, Blackwell finalized an Injury Report Form on May 8, 1985. The date of the accident was reported as "Jan. 28 to 31, 1985." A Notice of Injury and Claim for Benefits form was also prepared which listed the same dates. However, on his Application for Hearing, which Blackwell later filed, the date of accident was listed as February 6, 1985. The discrepancy between the forms, regarding the accident date, was explained by Blackwell in his testimony before the Industrial Commission. Blackwell testified that when he filled out the accident reports he was unsure of the date, but knew it was the day before he went to see Dr. Bond. Once the records of Dr. Bond were obtained he realized that the date of the alleged accident was February 6, 1985.

After a hearing, the Industrial Commission specifically found that Blackwell was not a credible witness regarding the date of the accident or the notifying of his supervisors. It also found that he had sporadic back problems from 1978 to April 24, 1985, which had been triggered by both work and non-work related endeavors. The commission further found that Blackwell had failed to prove a distinct accident and injury on February 6, 1985; that Blackwell had not reported an accident or injury within 60 days of the accident as required by I.C. § 72-701; and that Omark did not have actual knowledge of an injury within the meaning of I.C. § 72-704. ² Accordingly, the commission further concluded that Blackwell's claim was barred by I.C. § 72-701. ³ Blackwell, who died subsequent to the hearing, has appealed through the personal representative of his estate, Jan Blackwell.

This appeal presents two issues: does the record support the Industrial Commission's finding that Blackwell did not incur an industrial accident and injury as claimed; and, did the Industrial Commission err in failing to conclude that the notice of injury Blackwell provided Omark was effective or that Omark was not prejudiced by Blackwell's delay in filing written notice of the injury? If we affirm the commission on the first issue, the second becomes moot. Accordingly, we address the industrial accident and injury issue first.

Blackwell contends on appeal that the commission required him to prove that an accident happened at a particular time and a particular place, rather than merely "reasonably located as to time when and place where," as provided in I.C. § 72-102(14)(b). He argues that since he did not prove an accident occurred at a particular time, i.e., on February 6, 1985, his claim was denied. Blackwell's counsel at the hearing before this Court stated:

"The problem the Industrial Commission had was one of identifying a specific date that this [the accident] occurred.... This February 6th date, I think, is so important because they could have said at the end of the factual finding that 'the Commission concludes Claimant has failed to prove he suffered a distinct accident and injury as defined by Workmen's Compensation Law,' period, and we wouldn't be here today."

However, a review of the entire record discloses that the Industrial Commission understood that the issue raised before the commission was whether Blackwell had in fact sustained any industrial accident, not whether he could prove a particular time and a particular place when the accident had occurred. At the beginning of the commission's hearing, the parties had a discussion with the commission concerning the issues which were before the commission for decision. From a review...