Browning v. Ringel, 24698.

• Citation: 995 P.2d 351,134 Idaho 6
• Decision Date: 24 February 2000
• Docket Number: No. 24698.,24698.
• Parties: Judy N. BROWNING and Frank Henry Browning, husband and wife, Plaintiffs-Appellants, v. Richard Ernest RINGEL and Ervin Meeks Logging Co., Inc., and Ervin Meeks, President of Ervin Meeks Logging, Co., Inc., an Idaho corporation which has forfeited its corporate charter in Idaho, and Nancy Lindstrom, Secretary of Ervin Meeks Logging Co., Inc., Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

995 P.2d 351

134 Idaho 6

Judy N. BROWNING and Frank Henry Browning, husband and wife, Plaintiffs-Appellants, v. Richard Ernest RINGEL and Ervin Meeks Logging Co., Inc., and Ervin Meeks, President of Ervin Meeks Logging, Co., Inc., an Idaho corporation which has forfeited its corporate charter in Idaho, and Nancy Lindstrom, Secretary of Ervin Meeks Logging Co., Inc., Defendants-Respondents.

No. 24698.

Supreme Court of Idaho, Coeur d'Alene, October 1999 Term.

February 24, 2000.

Rehearing Denied March 17, 2000.

Mitchell Law Office, Coeur d'Alene, for appellants. John T. Mitchell argued.

Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for respondents. Warren E. Jones argued.

SILAK, Justice.

This is an appeal from a judgment entered after a bench trial, based on findings of fact and conclusions of law, awarding appellants damages arising out of a motor vehicle accident. Appellants claim that the district court erred as a matter of law in apportioning the damages between a pre-existing medical condition and injuries relating to the accident, and that certain of the court's findings of fact were not supported by substantial and competent evidence. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

A. Facts

On July 12, 1994, appellant Judy N. Browning (Browning), while operating her 1991 Chevrolet Blazer in the course of her employment as single copy manager for the Coeur d' Alene Press, was involved in a motor vehicle accident with respondent Richard Ernest Ringel (Ringel), who was operating a logging truck on behalf of his employer, respondent Ervin Meeks Logging Co., Inc. On that day, both Ringel and Browning were driving eastbound on Aqua Avenue near its intersection with State Highway 95 in Coeur d'Alene. When Ringel approached the intersection, he was stopped by a flagger and told that the intersection was closed by road crews for construction. Ringel could not proceed forward and had to back up to turn around. Browning had driven up behind Ringel and had stopped a few car lengths behind his truck, in Ringel's blind spot. After checking his mirrors and not seeing Browning, Ringel backed up his truck and collided into the front of Browning's Blazer.

At the time of the accident, Browning was 55 years old and had worked for the Coeur d' Alene Press for seventeen years. During the first twelve years of her employment, she delivered 45 to 70 bundles of papers weighing 30 to 40 pounds each to stores and newspaper racks daily. In 1988, her job became more supervisory, but she still had to lift newspaper racks weighing up to 140 pounds, as well as bags of money weighing 40 to 50 pounds. Prior to the accident, Browning suffered from a number of pre-existing injuries and ailments.

After the accident, Browning experienced pain in her right shoulder and neck, increased pre-existing back pain and muscle tension headaches. In March 1995, Browning was taken off work by her physician due to the pain. In May 1996, an orthopedic surgeon, Dr. Pike, diagnosed Browning as having a partial rotator cuff tear. Browning had surgery to repair the torn rotator cuff in November 1996. In mid-January 1997, Browning returned to work full-time as an office clerk, and in July 1997, she was promoted to circulation office manager.

B. Procedural Background

On March 7, 1996, Browning and her husband filed a complaint against Ringel and his employer for personal injury damages, property damages and for loss of consortium arising out of the July 12, 1994 accident. Following a bench trial in February 1998, the district court issued its findings of fact and conclusions of law.

The court made numerous findings of fact with respect to Browning's prior injuries. Certain of these are as follows: In October 1984, Dr. Don Schmitt treated Browning for severe low back spasms which a CT scan showed to be caused by mild to moderate degenerative changes in her lower lumbar spine and a bulging disc. In 1987, Dr. Schmitt treated Browning for anxiety headaches. In November 1988, Dr. Schmitt treated Browning for left shoulder and left arm pain. Dr. Schmitt diagnosed a cervical nerve root syndrome. Dr. Schmitt treated Browning again in August 1989 for worsening left shoulder pain. Dr. Schmitt then referred Browning to Dr. Lea, who in September 1989, treated Browning for neck and left arm pain which Browning stated was caused by lifting newspapers in the course of her work. An x-ray ordered by Dr. Lea showed degenerative changes of Browning's cervical spine and bone spurring. In October 1991, Dr. Schmitt treated Browning again for worsening low back and left elbow pain. An MRI showed a disc herniation which Browning believed was related to an injury she sustained in August 1991 while moving a paper rack in her employment. Dr. Fokes performed surgery on Browning in January 1992 for the herniated disc. Browning continued to have complaints of pain in her back and in her right leg prior to the accident in this case, and was seen again by Dr. Lea in June 1993.

The district court also made findings with respect to Browning's medical condition after the accident. Certain of these are as follows: In August 1995, Browning was seen by Dr. Fokes for complaints of numbness in her lower right extremity, but Dr. Fokes could not find any objective weakness or motor deficit, and an MRI indicated normal limits. At that time Dr. Fokes stated that from a neurosurgical standpoint he could see no reason why Browning could not return to work, although Browning stated she could not. Dr. Fokes recommended that "we have a panel and try and settle up with Mrs. Browning and let her get on with her life." In December 1995, Browning was examined by Dr. Powell and Dr. Bozarth with respect to her complaints of neck pain, right shoulder pain, low back pain and right leg numbness. These doctors concluded that her right shoulder strain was related to general work activities, rather than the motor vehicle accident involved in this case. They found no change in the previous impairment rating for the low back, that there was no impairment of function with respect to her cervical condition, no restrictions related to her neck, and concluded that x-rays indicated pre-existing arthritis in her neck prior to the accident. Dr. Pike, who performed the repair surgery, stated that the rotator cuff tear was due to degeneration and the accident, and that it was not possible to separate the two. In February 1997, Dr. Oeljen examined Browning and determined her right shoulder injury to be related to natural degeneration combined with her general work activities over the years moving heavy bundles of newspapers and dispensing machines, and that it was not necessarily related to the accident. The court found that rotator cuff tears are often the result of natural aging and degenerative conditions, which was consistent with the fact that Browning did not need surgery on her right shoulder until more than two years following this accident.

The district court determined that with respect to the negligence issue, Ringel was 100% at fault. The court then stated that the difficulty with the case was apportioning causation of Browning's physical complaints between the accident and non-accident events. Because the court found it was more probable than not that Browning suffered some cervical strain, a rotator cuff injury, and some slight aggravation to the pre-existing low back injury as a result of the accident, it awarded Browning damages for medical expenses and loss of income in the amount of $32,000. The court also awarded the Brownings $3,447 for property damage relating to their vehicle, and $2,000 to Mr. Browning for loss of consortium. The court thus entered judgment in favor of the Brownings in the amount of $37,527.00. In May 1998, the court denied the Brownings' motion to alter or amend the court's findings of fact and conclusions of law. The Brownings appeal.

II. ISSUES ON APPEAL

A. Whether the trial court erred as a matter of law, in apportioning damages for Browning's right shoulder and neck injuries caused by the accident and any pre-existing condition, when just prior to the accident neither her right shoulder nor her neck were painful or disabling.

B. If there is a legal basis for apportionment of her right shoulder and neck injuries, and whether there is substantial competent evidence from which to apportion Browning's damage between her pre-existing condition and the accident.

C. Whether there is substantial and competent evidence to support the court's finding that "[t]he combination of complaints arising out of non-accident events would have precluded plaintiff from performing the duties of single copy manager by no later than January 1997."

D. Whether there is substantial and competent evidence to support the court's finding that "[i]t was the entire constellation of the plaintiffs physical complaints from various causes which prompted her to abandon the job as single copy manager in March 1995."

E. Whether the trial court's finding that there was some "slight aggravation to the pre-existing low back as a result of the accident" is specific enough to determine how that fact entered into the court's findings on damages, and whether it is specific enough for meaningful appellate review.

F. Whether the court erred as a matter of law, by failing to award damages for wage loss during a period where Browning was recovering from a non-accident surgery (carpal tunnel), when she had already been taken off work for accident-related medical reasons.

G. Whether the court erred in not making a finding regarding the need and cost of housekeeping for Browning as a result of this accident, when uncontradicted proof of the need and cost was presented by the Brownings.

III. STANDARD OF REVIEW

When an action is tried to a court sitting without a jury, appellate review is limited to ascertaining whether the trial court's findings of fact are supported by substantial and competent evidence....