Challis v. Louisiana-Pacific Corp.

• Decision Date: 16 August 1994
• Docket Number: No. 20433,LOUISIANA-PACIFIC,20433
• Parties: Bruce CHALLIS, Claimant-Appellant, v.CORPORATION, Employer-Respondent.CORPORATION, Claimant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant. Pocapello, May 1994 Term
• Court: Idaho Supreme Court

Page 597

879 P.2d 597

126 Idaho 134

Bruce CHALLIS, Claimant-Appellant, v. LOUISIANA-PACIFIC CORPORATION, Employer-Respondent.

LOUISIANA-PACIFIC CORPORATION, Claimant, v. STATE of Idaho, INDUSTRIAL SPECIAL INDEMNITY FUND, Defendant.

No. 20433.

Supreme Court of Idaho,

Pocapello, May 1994 Term.

Aug. 16, 1994.

[126 Idaho 135] Goicoechea Law Offices, Idaho Falls, for appellant. Delwin W. Roberts argued, Idaho Falls.

Sims, Liesche, Newell, Kelso, Wallace & Wallace, Coeur d'Alene, for respondent. Starr Kelso argued, Coeur d'Alene.

TROUT, Justice.

BACKGROUND AND PRIOR PROCEEDINGS

This is a worker's compensation case in which the worker, appellant Bruce Challis (Challis), asserts the Industrial Commission (Commission) erred in its determination of the extent of his impairment and disability. Challis injured his right hand in a work-related accident in April of 1986 while employed as a saw-filer by respondent, Louisiana-Pacific. He was treated and subsequently found to be medically stable and released for work on July 25, 1986. He worked full time until August 6, 1986, when Challis sought compensation benefits, and in April of 1991 filed an application for hearing. Respondent answered, admitting the accident and that some impairment had occurred. Respondent subsequently joined the Industrial Special Indemnity Fund (ISIF), based on Challis' allegation of hearing loss and odd-lot status. In July of 1992, respondent admitted Challis was impaired to the extent of three percent of the whole person.

[126 Idaho 136] he was terminated from employment with respondent for filing a false insurance claim against respondent's insurer relating to the injury, the filing of which he does not deny. Thereafter he had some sixteen surgeries on his right hand and arm, including a complete wrist fusion performed in September of 1989.

In August of 1992, a hearing was held before all three members of the Commission. At the hearing, the Commission was presented with a surveillance videotape (the Videotape) of Challis, taken in September of 1990, in which he was shown working in his yard, primarily gathering worms from the lawn. The Videotape showed Challis using a garden hose to dowse the ground and to fill a fifty-five gallon drum; tipping over the water-filled drum and lifting it up once empty; and bending over and picking up worms from the ground. These activities required that Challis use his right hand and arm extensively. The Commission also was presented with the videotaped deposition of Challis, taken a month and a half after the Videotape, in which Challis represented, both verbally and physically, that the use of his right arm was extremely limited, so much so that he could barely pick up pencils from the table, and could not pick up the same pencils from the floor. At his videotaped deposition, Challis stated that he was in constant and severe pain in his arm and also had constant headaches which he equated with the injury and subsequent alleged impairment.

At the conclusion of the hearing, the Commission granted the ISIF's motion for dismissal, which dismissal is not an issue on appeal. On December 15, 1992, the Commission issued findings of fact, conclusions of law and order dismissing the ISIF and rating Challis' impairment and disability at three percent of the whole man. The Commission's ruling was basically a credibility determination, i.e., that Challis was not a credible witness, which they concluded from viewing the surveillance videotape and deposition videotape and from having judged Challis' credibility at the hearing. Based on its determination that Challis was not accurately representing the extent and severity of his impairment, the Commission rejected his proffered medical expert testimony which rated his impairment as high as forty-three percent of the whole person and, instead, rated his impairment at three percent of the whole person. As to Challis' disability rating, the Commission concluded that Challis had failed to show that his disability exceeded his impairment and found that the vocational evidence proffered by Challis was not of any use because of Challis' misrepresentation to vocational counselors as to the extent of his impairment. The Commission rated his disability at three percent of the whole person. This appeal followed. We note that in his brief to this Court on appeal, Challis presented numerous issues. However, all of the issues framed by Challis essentially challenge the Commission's impairment and disability ratings and it is these issues we address in this appeal.

DISCUSSION

I. THE IMPAIRMENT RATING

We review the Commission's impairment rating in two steps. First, since the Commission's impairment rating involved a determination regarding Challis' credibility, we review the Commission's determination on that point. Second, we review the Commission's rating of the impairment at three percent of the whole person.

The Commission determined that because of Challis' lack of credibility in matters relating to the use of his arm, the physicians consulted were not able to evaluate accurately his physical impairment. The Commission determined that Challis' lack of credibility was of such magnitude that it was "unable to give credit to [the various impairment ratings]." The Commission also noted that although On review of a Commission's factual findings involving credibility, this Court must uphold the Commission's witness credibility determination if there is any substantial and competent evidence to support the finding. Darner v. Southeast Idaho In-Home Servs., 122 Idaho 897, 841 P.2d 427 (1992); see also Roberts v. Asgrow Seed Co., 116 Idaho 209, 775 P.2d 101 (1989). Here, the Commission cited several bases for its determination that Challis was not credible. The main reason for the Commission's conclusion was the Videotape made of Challis working in his yard during September of 1990, after both the accident and the wrist fusion. The Commission characterized the tape as showing Challis as

                [126 Idaho 137]  various physicians issued an impairment rating, with some giving Challis a substantial rating, one physician, Dr. Watkins, was unable to rate Challis' impairment because of his "functional problems and his failure to cooperate and give full effort to testing."   In addition, one psychiatrist concluded that Challis was malingering and that he exaggerated his symptoms
                

... a very active person and [that] he has no limitations in bending over gathering worms, using his right hand to engage in his activities. He also lifted and dumped a large barrel ... he used his right arm predominately.... There was no indication that he had restrictions of motion at his right elbow. [In contrast to his deposition testimony] the video tape clearly demonstrates that he has excellent use of his right arm.

The Commission rejected the expert testimony presented by Challis regarding his impairment and concluded that "[i]t is clear that Claimant has misled many physicians in this case to believe that he has significant medical problems and physical restrictions relating to his injury when, in fact, as demonstrated by the video tape, Claimant is not disabled."

The Commission found further evidence of Challis' lack of credibility in his inconsistent explanation for filing a false insurance claim regarding his hand injury. In his videotaped deposition, Challis testified that he filed the false claim because he was upset with the plant manager. Before the Commission, he testified that he filed it because of financial difficulties. The Commission also stated that Challis gave inconsistent explanations for the termination of his employment at Louisiana-Pacific.

Our review of the record convinces us that the Commission's factual determination regarding Challis' credibility was not clearly erroneous. Houser v. Southern Idaho Pipe & Steel, Inc., 103 Idaho 441, 649 P.2d 1197 (1982). In fact, the Videotape shows Challis to be, as the Commission stated, active and having extensive use of his right arm. The Bruce Challis in...