Barrett v. NAMPA FIRE DEPT.
| Decision Date | 28 April 2000 |
| Docket Number | No. 25298.,25298. |
| Parties | Larry K. BARRETT, Claimant-Appellant, v. NAMPA FIRE DEPARTMENT, City of Nampa, Employer, and Idaho State Insurance Fund, Surety, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Kenneth F. White, Nampa, for appellant.
Hon. Alan G. Lance, Attorney General, Boise, for respondent. Bridget A. Vaughan argued.
This appeal from the State Industrial Commission involves a fireman who fell into an irrigation ditch while on the job. The Industrial Commission denied the claim on the basis that the claimant's injuries were pre-existing. We affirm.
On the evening of July 3, 1996, claimant Larry K. Barrett (Barrett) of the Nampa City Fire Department (Fire Department) responded with two other firemen to a brush fire in Nampa. Upon arriving, the firemen began pulling water hoses off the fire truck to contain the fire. As the firemen entered the field, each in turn fell into an irrigation ditch which was covered with weeds. Barrett testified that he fell into the ditch headfirst, hitting his head and knocking his helmet off. When the fire was extinguished, Barrett entered the following into the daily log book: "Kelsar fell in ditch on fire cut head, Barrett fell in ditch and hit head and snapped neck with fall, Ebbers fell in ditch didn't seem to have and [sic] problems."
At the time of the injury, Barrett had been employed by the Fire Department for twenty-one years. He was a battalion chief and was responsible for keeping a log of daily activities.
In 1993, Barrett had been involved in an automobile accident which injured his knee and back. Because of persistent neck stiffness and restricted left-arm movement, Barrett sought chiropractic cervical adjustments periodically. On May 31, 1996, Barrett consulted with Dr. Walker, a chiropractor, concerning the onset of arm tingling and neck pain. On July 3, 1996, prior to his falling into the ditch, Barrett met with Dr. Gary D. Botimer who had operated on Barrett's knee following the car accident. Dr. Botimer's notes of that visit relate that Barrett was complaining of pain in his neck and pain down his forearms. Dr. Botimer examined Barrett and told him that if the pain persisted Barrett should see Dr. Michael Djernes, a neurologist.
A week later, Barrett went to see Dr. Djernes concerning pain in his neck and numbness and tingling in some of his fingers. Both the doctor's and the nurse's notes indicate that Barrett could not identify any specific event which could have caused his pain.
On October 18, 1996, Barrett filed a Notice of Injury and Claim for Benefits relating to pain in his neck and arms. Around the same time, Barrett filled out a Supervisor's Accident Report form. On July 27, 1997, Barrett filed a Worker's Compensation complaint, listing the Nampa Fire Department and the State Insurance Fund (respondents) as his employer and its insurance carrier. A hearing was held on February 8, 1998. On September 4, 1998, the hearing referee entered a recommendation that Barrett's claim be denied because Barrett had failed to prove that his injuries resulted from his July 3, 1996 fall. The Industrial Commission adopted the referee's findings and entered an order denying the claim on November 10, 1998. Following the Industrial Commission's denial of his motion for reconsideration, Barrett appealed.
When this Court reviews a decision from the Industrial Commission, it exercises free review over questions of law but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996). Substantial and competent evidence is "relevant evidence which a reasonable mind might accept to support a conclusion." Boise Orthopedic Clinic v. Idaho State Ins. Fund (In re Wilson), 128 Idaho 161, 164, 911 P.2d 754, 757 (1996).
Whether an injury arose out of the course of employment is a question of fact to be determined by the Commission. Kessler ex rel. Kessler v. Payette County, 129 Idaho 855, 859, 934 P.2d 28, 32 (1997). The Commission's conclusions on the credibility and weight of evidence will not be disturbed unless the conclusions are clearly erroneous. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). On appeal, this Court is not to re-weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. See Warden v. Idaho Timber Corp., 132 Idaho 454, 457, 974 P.2d 506, 509 (1999)
.
A. The Decision Of The Industrial Commission To Deny Barrett's Claim Was Supported By Substantial And Competent Evidence.
The Industrial Commission concluded that Barrett had not provided sufficient evidence to establish that the pain in his neck and arm was the result of his fall on July 3, 1996. Barrett claims that this conclusion is not supported by substantial and competent evidence.
Contrary to Barrett's claim, there is substantial and competent evidence to support the Industrial Commission's conclusion. While the record is replete with support for this conclusion, three examples are particularly clear.
First, it is well documented that Barrett had suffered from neck and arm pain prior to his fall on July 3, 1996. Barrett's testimony from the hearing was that in the afternoon of July 3, 1996, he saw Dr. Miller about a minor skin rash. While in the office, Barrett met Dr. Botimer who shared office space with Dr. Miller. Barrett sought Dr. Botimer's advice concerning his arm tingling. While Barrett maintained that Dr. Botimer did not examine him, the doctor's chart notes that Barrett also testified that he had been x-rayed during that visit. The x-rays revealed degenerative changes. The x-ray technologist recorded that Barrett complained of Barrett's complaints of neck and arm pain hours before he fell into the ditch lend support to the Industrial Commission's conclusion that Barrett had failed to prove the fall caused his injuries.
The facts surrounding Barrett's visit to Dr. Djernes' office, one week after the fall, provide the most compelling evidence to support the Industrial Commission's findings. Barrett went to see Dr. Djernes on July 10, 1996. The nurse's notes of that visit reflect that On cross-examination Barrett admitted that at that appointment he could not recall any incident which could have caused the injury.
Additionally, the doctor's notes from that same visit record that ...
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