Arnold v. Splendid Bakery

• Decision Date: 19 April 1965
• Docket Number: No. 9522,9522
• Citation: 88 Idaho 455,401 P.2d 271
• Parties: Martha ARNOLD, Claimant-Respondent, v. SPLENDID BAKERY and State Insurance Fund, Defendant-Appellants.
• Court: Idaho Supreme Court

Page 271

401 P.2d 271

88 Idaho 455

Martha ARNOLD, Claimant-Respondent, v. SPLENDID BAKERY and State Insurance Fund, Defendant-Appellants.

No. 9522.

Supreme Court of Idaho.

April 19, 1965.

Coughlan & Imhoff, Boise, for appellants.

Davison, Davison & Copple, Boise, for respondent.

KNUDSON, Justice.

On December 6, 1952, claimant-respondent, Martha Arnold, who was then 27 years of age, sustained an injury to her back by an accident arising out of and in the course of her employment with appellant Splendid Bakery. The accident occurred when respondent slipped on some cellophane paper lying on the bakery floor and fell injuring her back. Respondent has a long history of treatment resulting from said accident of which the material facts are briefly stated in chronological order as follows:

On December 12, 1952, Gordon Garlock, D. C., examined respondent and following x-ray gave her diathermy and spinal adjustment treatments for about three weeks.

On December 31, 1952 respondent filed a Notice of Injury and Claim for Compensation. Appellant surety, State Insurance Fund, accepted liability and thereafter made payments to respondent for various periods thereafter in an aggregate amount in excess of $12,000 as total temporary disability compensation.

On January 9, 1953 respondent was examined by Dr. John T. Brunn, M. D., by whom she was frequently given diathermy treatments until March 23, 1954.

On January 13, 1953 she was examined by Dr. Delbert Ward, orthopedic specialist, who then reported history and findings of a protruding disc. On January 30, 1953 she was, at the direction of Dr. Ward, admitted to the hospital for traction--results not good. Dr. Ward later performed a myelogram and on March 25, 1953 he performed a laminectomy.

Respondent returned to work on October 12, 1953 but had to quit after a short time following which she studied a business course and shortly thereafter was employed by a retail mercantile store as bookkeeper.

During the course of Dr. Ward's treatment she was examined by Dr. R. E. Buckmaster, M. D., of Portland, Oregon, who approved of further 'myelographic' studies by Dr. Ward.

On July 8, 1954 another myelogram was taken and on August 13, 1954 respondent was, at the request of Dr. Ward, examined by Dr. C. R. Blackburn, M. D., and approximately three months later she was examined by Dr. M. B. Shaw, M. D., orthopedic surgeon, who states in his report that he believed respondent did have a defective lumbosacral disc.

Following an examination by Dr. Robert A. Kuhn, M. D., neuropathic surgeon, made on December 13, 1954, respondent underwent, at his hands, another laminectomy on January 12, 1955.

At the request of appellant surety, respondent was on July 11, 1955, examined by Dr. James J. Coughlin, M. D., an orthopedic specialist who at that time recommended no further treatment. Thereafter, and at the request of appellant surety, respondent was on October 18, 1956, again examined by Dr. Donald J. Baranco, M. D., orthopedic surgeon, who discouraged any additional surgery on respondent.

Dr. Jerome K. Burton, M. D., orthopedic surgeon, first examined respondent on July 5, 1955, and thereafter acted as respondent's principal medical advisor. At his request respondent was on October 9, 1957, examined by Dr. Maurice Burkholder, M. D., as a consultant, who could find no physical condition which would prevent respondent from having surgery on what was thought to be a recurrent disc.

On October 7, 1957, respondent was admitted to the hospital for a myelogram which was given the next day, following which, on October 16, 1957, another laminectomy was performed by Dr. Burton. Thereafter and for a period of approximately four months following December 12, 1957, respondent was given post-operative care and treated by Dr. Verne J. Reynolds, M. D., a gynecologist.

During the year 1958 respondent remained under the care of Dr. Burton, who, on November 4, 1958, performed another laminectomy and a spinal fusion. Respondent was released from the hospital January 21, 1959, and at periodic intervals thereafter was reexamined by Drs. Burton and Burkholder.

On November 29, 1960, another and the final laminectomy was performed upon respondent by Dr. Burton to ascertain with certainty that there had been no recurrence of herniation of a disc and that the spinal fusion was solid.

Respondent's work history following her accident discloses that she worked intermittently until September 18, 1957, since which date she has not been employed.

By the foregoing statement it is intended to mention only the initial examination made by the respective doctors named--no attempt will be made to state in this opinion the many additional examinations made by and interviews had with the doctors mentioned.

On April 29, 1963, appellant surety ceased payment of any compensation to respondent following which she filed an amended petition for a hearing before the Industrial Accident Board, which hearing was held on January 30, 1964. Thereafter the Board made its findings that respondent is totally disabled for work and that such condition is prospectively permanent. By the award entered appellant surety was directed to pay its obligation to her pursuant to the Workmen's Compensation Law so long as her disability shall continue. This appeal is from said findings and award.

Appellant contends that the Board erred in holding that respondent was totally disabled for work and that said condition is prospectively permanent. Appellant's argument in support of this contention is concerned largely with the fact that three of the five doctors who testified at the final hearing before the Board, did not express an opinion that respondent was totally disabled. The fact that a greater number of expert witnesses may support a view different from the conclusion reached is not the controlling test for determining the preponderance of the evidence. Tilden v. Hubbard, 25 Idaho 677, 138 P. 1133.

The weight and credibility of testimony in a compensation case, including the opinions of experts, is for the Board, and its finding is conclusive on appeal when supported by competent evidence. Lane v. General Telephone Company of Northwest, 85 Idaho 111, 376 P.2d 198; Nitkey v. Bunker Hill & Sullivan Mining & Con. Co., 73 Idaho 294, 251 P.2d 216; Benson v. Jarvis, 64 Idaho 107, 127 P.2d 784. Under said claim of error the issue presented is whether the finding that respondent is totally disabled is supported by competent evidence.

The record discloses that at the final hearing before the Board held January 30, 1964, five doctors, each being an orthopedic surgeon whose qualification was in no respect challenged, testified and each expressed his opinion regarding respondent's disability. The following is a brief statement of the disability rating given by each of said doctors and the date of his last examination of respondent prior to said hearing:

Dr. Shaw--Last examination had July 10, 1963. Rated her permanent partial disability equal to 30% loss of a leg at the hip.

Dr. Coughlin--Last examination had July 11, 1963. Rated respondent's permanent partial disability at 50% loss of a leg at the hip.

Dr. Taylor--Last examination had July 15, 1963. Rated her permanent partial physical impairment at 20% of the whole man.

Dr. Gardner--Last examination had December 9, 1963. Rated respondent's physical impairment at approximately 50% of the spine and stated: 'Based upon the history that the patient gave me and the physical findings that I have, and my opinion of those, I don't think that she will go back to work, or that she will be able to carry on more than just temporary work.'

Dr. Burton--Last examination had January 28, 1964. Rated respondent as totally disabled for gainful employment.

This record discloses that during the eleven years intervening the accident resulting in respondent's injury and the final hearing before the Board respondent was examined by fourteen doctors, nearly all of whom were orthopedic physicians and surgeons. The unrefuted medical history of respondent during said eleven years discloses that she has undergone five surgical procedures consisting of laminectomies and fusions, together with three myelograms. She has suffered almost continuous pain for relief from which she takes medication almost daily.

Respondent has been under the care and treatment of Dr. burton since 1956 and the following is an excerpt from his report to the chief claims examiner of appellant surety, made six years after respondent received the accidental injury involved, dated October 27, 1958:

'The above named, Martha Arnold, has apparently reached a plateau of improvement but she is still totally disabled temporarily. At the present time she is suffering pain in the back and both legs after she has been up from the lying down position. She can be up approximately 30 to 45 minutes before the pain in the back becomes severe enough to require sedation and even with sedation the pain becomes worse and radiates into both legs. She is forced to lie down after being up from 30 minutes to an hour until the pain subsides sufficiently so that she can get up again.'

The following is an excerpt from a report by Dr. Coughlin to appellant surety of respondent's condition ten and one-half years after the accident:

'At this time her complaints are as follows. She feels that she is really no better for all the surgery that has been performed on her. She still has the same pain in the lower back and in both legs. She does not wear a back support at this time. She is not active. She partially does her housework. She does no other work. She cannot iron her clothes or wash windows or do work of that sort because of her complaints. Her complaints increase each day toward the end of the day. In other words, activity seems to increase her complaints. Car riding increases her complaints. Standing causes pain. She states she is taking Emperin Compound #3, two at...