Vernon v. Omark Industries
| Decision Date | 16 January 1989 |
| Docket Number | No. 17312,17312 |
| Citation | 115 Idaho 486,767 P.2d 1261 |
| Parties | Patricia Louise VERNON, Claimant-Appellant, v. OMARK INDUSTRIES, Employer, and State Insurance Fund, Surety, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Church & Brown, Lewiston, for claimant-appellant. Charles A. Brown argued.
M. Karl Shurtliff, Boise, for defendant-respondent.
The Industrial Commission denied Vernon's claim for worker's compensation benefits, ruling that she had not proved that her injury arose out of and in the course of her employment. On appeal this Court vacated and remanded the case back to the commission, instructing it to "make more detailed factual findings and conclusions of law to support its ultimate holding." Vernon v. Omark Industries, 113 Idaho 358, 361, 744 P.2d 86, 89 (1987) (Vernon I ). On remand, the commission made new findings of fact and conclusions of law and again concluded that claimant failed to sustain her burden of proving that she suffered an accident as defined in I.C. § 72-102(14)(b). 1 Claimant appeals. We affirm.
The new findings of fact and conclusions of law which the commission made can be summarized as follows. Claimant Vernon's application for hearing stated the date of injury as "6-13-83 to 6-23-83 during work hours." In June of 1983, claimant was 40 years old and had worked at Omark Industries (Omark) for approximately nine years. The last seven years had been spent packaging primers. She worked four 10-hour days per week, and her work included lifting trays of primers, weighing 28 to 56 pounds apiece.
Claimant testified on direct examination that she began to experience pain on June 13, 1983, while she was at work. On cross examination, however, she conceded (and the commission found) that all she remembers is that her low back began to hurt sometime around the middle of June, 1983.
Claimant continued to work through June 23, though she experienced increasing low back pain. On June 24, her day off, claimant consulted Dr. Skinner, a chiropractor whom she had previously seen for low back pain. Claimant subsequently saw Dr. Skinner eight more times, but never identified her pain as work related. Claimant also consulted Dr. Johnson, a general practitioner, on July 8, 21, and 28. During this period she did not report any work related injury to her employer. Rather, claimant told her supervisor that she was seeing Dr. Johnson for arthritis in her back.
Claimant's back pain did not improve. On July 21, 1983, she went to the office of Dr. Colburn, an orthopedic surgeon in Lewiston, Idaho. Claimant was there examined by Betty Imthurn, a nurse practitioner. According to the history recorded by Imthurn, (1) claimant complained of continuous pain in her right low back, radiating into the right thigh, calf, and occasionally into the foot; (2) sometimes she experienced sharp pain in the low back; (3) claimant first noticed her symptoms about five weeks earlier (mid-June) and they were unrelated to any particular activity or incident; and (4) claimant had experienced low back pain intermittently for the last 6 years, but denied any previous leg symptoms. Imthurn advised claimant to cease work; in compliance claimant stayed in bed most of the following week.
On July 28 claimant returned. It was then Imthurn's impression that claimant had a herniated lumbar disc. Claimant was told to check with Dr. Colburn in two weeks, but claimant desired more immediate treatment so on July 29, 1983, she saw Dr. Adams, an orthopedic surgeon in Spokane, Washington. According to Dr. Adams' history, claimant denied previously feeling pain in her back and legs, but reported that this particular injury was work related, that it occurred on June 15, 1983, and that the pain began in her back, then extended into the right leg. A myelogram and CAT scan were performed on August 8, disclosing a herniated disc. Claimant underwent surgery on August 23, 1983, and ultimately was released to return to work again on January 23, 1984. When asked to state the cause of claimant's injury, Dr. Adams testified:
Claimant reported her injury to Omark on August 4, 1983. In that report claimant did not state a date of injury, but stated the date of diagnosis as June 24, 1983. It is Omark's policy to report any injury, no matter how minor, promptly after it occurs. Claimant was aware of the policy and had reported previous injuries in a prompt manner. Claimant testified, however, that she did not report this particular injury earlier because she was afraid she might be disciplined for excessive absence from work. Claimant claims she had received a previous warning for excessive absences. The commission found, however, based on the testimony of claimant's supervisor, that claimant received no warning concerning absences until after she returned to work in January of 1984.
Claimant had a prior history of back trouble. In 1978 she pinched a nerve as she was lifting her baby. She received chiropractic treatment. In 1979 claimant suffered a back injury at work when she lifted a case of literature. She was subsequently treated by a general practitioner. On a third occasion, claimant fell down some stairs and hurt her tail bone. Claimant also had a series of back treatments by Dr. Skinner between November 26 and December 15, 1982. As stated in claimant's deposition, the treatment was for back pain "close to the same area" where surgery was ultimately performed, but the pain's cause was not described in Dr. Skinner's records. Claimant also had appointments with Dr. Skinner on March 4 and May 5, 1983, but cancelled both appointments.
Based on this evidence, the commission was not persuaded that claimant injured her back at work in mid-June as claimed. Most significantly, the commission noted, claimant related no mishap or event which produced her low back pain. After reviewing the definition of "accident" contained in I.C. § 72-102(14)(b), the commission concluded that "Claimant has failed to sustain her burden of proving that she suffered an accident, that is, an unexpected, undesigned and unlooked for mishap or untoward event connected with her employment which caused her injury." Accordingly, claimant's claim was denied and her application for hearing was dismissed. Claimant appeals. We affirm the commission's decision.
The first issue before the Court is whether, construing the record most favorably to the party which prevailed below, here the defendants/respondents, Johnson v. Bennett Lumber Co., 115 Idaho 241, 766 P.2d 711 (1988), there is any substantial competent evidence to support the commission's factual findings. Idaho Const., Art. 5, § 9; I.C. § 72-732(1); Blackwell v. Omark Industries, 114 Idaho 10, 752 P.2d 612 (1988). As the record here demonstrates, there is ample substantial competent evidence upon which the commission could have based its findings.
The burden of proof in an industrial accident case is on the claimant.
Neufeld v. Browning Ferris Industries, 109 Idaho 899, 902, 712 P.2d 600, 603 (1985) (emphasis added).
Further, in order to be entitled to benefits, claimant must prove that she suffered an "accident," i.e., "an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury." I.C. § 72-102(14)(b). Here, however, claimant made no such showing. Claimant has not testified to any "unexpected, undesigned, and unlooked for mishap, or untoward event" in her work. Rather, she conceded, "All I remember is I just started hurting around the middle of the month [June, 1983]." Further, in her deposition claimant testified as follows:
Claimant attempted to establish that she suffered an "accident" by introducing the testimony of Dr. Adams. However, Dr. Adams' testimony did not establish an "unlooked for mishap, or untoward event." Instead, he stated, "Principally, it doesn't appear that there's one particular episode that caused it, at least in my history."
Other evidence in the record also contradicts, rather than supports, claimant's assertion that she suffered a compensable "accident." First, when claimant saw chiropractor Skinner, she never identified her pain as work related. Second, during the period she was seeing Dr. Johnson, claimant did not report any work related injury to her employer--indicating instead that she was seeing Dr. Johnson for arthritis in her back. Third, according to the history recorded by Nurse Imthurn in Dr. Colburn's office, the symptoms claimant first noticed in mid-June were unrelated to any particular activity or incident; further, for the last six years claimant had experienced intermittent low back pain. Fourth, in her...
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