Curtis v. M.H. King Co.

• Citation: 128 P.3d 920,142 Idaho 383
• Decision Date: 30 December 2005
• Docket Number: No. 31353.,31353.
• Parties: Louise E. CURTIS, Claimant-Appellant, v. M.H. KING COMPANY, Employer, and State Insurance Fund, Surety, Defendants-Respondents.
• Court: Idaho Supreme Court

128 P.3d 920

142 Idaho 383

Louise E. CURTIS, Claimant-Appellant, v. M.H. KING COMPANY, Employer, and State Insurance Fund, Surety, Defendants-Respondents.

No. 31353.

Supreme Court of Idaho, Boise, December 2005.

December 30, 2005.

Rehearing Denied January 27, 2006.

John F. Greenfield, PA, Boise, for appellant. John F. Greenfield argued.

Elam & Burke, P.A., Boise, for respondents. James A. Ford, argued.

BURDICK, Justice.

Louise Curtis (Curtis) appeals to this Court from a decision of the Idaho Industrial Commission finding that an industrial accident she suffered in 2001 (the 2001 accident) did not cause or aggravate avascular necrosis in her hip. The decision from which Curtis appeals upheld an earlier denial by the State Insurance Fund (SIF) of Curtis' claim for worker's compensation benefits. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Curtis was employed as a saleswoman at M.H. King, (King) a variety store in Eagle, Idaho. On June 11, 2001, she suffered an accident while she was moving merchandise off the sidewalk in front of the store. Curtis, who was 64 years old at the time of the accident, fell first to her buttocks, then flat on her back, striking the back of her head on the pavement. Complaining of pain in her neck and lower back, Curtis sought treatment first from a chiropractor, and later from W. Steven Rudd, M.D. (Dr. Rudd).

Dr. Rudd first examined Curtis in late July, 2001. That November, Dr. Rudd performed surgery on Curtis to remove a herniated disc from her back. In March, 2002, he released her to return to work with restrictions, and rated her injury at 10% of the whole-person partial permanent impairment. The following month, Curtis returned to Dr. Rudd complaining of pain in the left hip. After an x-ray and a bone-scan were conducted, Dr. Rudd diagnosed Curtis' condition as avascular necrosis in the left hip. Curtis scheduled hip replacement surgery with Dr. Rudd, but cancelled when she discovered Dr. Rudd was not a provider under her health insurance plan. Curtis' left hip replacement was performed in April 2003 by Dr. Colin Poole, M.D. (Dr. Poole).

Curtis filed a claim for benefits with the SIF, King's surety. In response to inquiries from the SIF, Dr. Rudd responded with a letter (the July 2002 letter) advising that Curtis' avascular necrosis was likely not a result of her 2001 accident. The SIF then denied Curtis' claim, echoing Dr. Rudd's assertion that her avascular necrosis was not attributable to the 2001 fall at work. Following this denial, Curtis brought a complaint against King and the SIF with the Idaho Industrial Commission which was heard by an Industrial Commission referee. The referee, after hearing extensive testimony and attending the deposition of Dr. Rudd, ruled in favor of King and the SIF. The referee's findings of fact and conclusions of law were subsequently adopted by the Industrial Commission, with one Commissioner dissenting without comment. Curtis then requested the Industrial Commission reconsider its earlier decision, but the request was denied. Curtis then filed a timely appeal from that order which is now before this Court.

II. STANDARD OF REVIEW

When reviewing a decision of the Industrial Commission, this Court exercises free review over questions of law, but will uphold the factual findings of the Commission provided they are supported by substantial and competent evidence. Uhl v. Ballard Medical Products, Inc., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Id. The conclusions reached by the Industrial Commission regarding the credibility and weight of evidence will not be disturbed unless the conclusions are clearly erroneous. Hughen v. Highland Estates, 137 Idaho 349, 351, 48 P.3d 1238, 1240 (2002). We will not re-weigh the evidence or consider whether we would have drawn a different conclusion from the evidence presented. Id.

III. ANALYSIS

The damage to Curtis' back arising from her 2001 accident was treated as an industrial accident for which Curtis collected benefits under worker's compensation. However, the parties disagree whether Curtis' advanced avascular necrosis in her hip resulted from aggravation caused by that same 2001 accident, and consequently whether the condition can be traced to an industrial cause for which worker's compensation applies.

Testimony offered in the hearing before the Industrial Commission referee established that avascular necrosis is tissue death brought about by an interruption in the supply of blood. When it afflicts the joints, such as the shoulder and hips, it manifests itself as bone death. Sometimes the condition is caused by trauma, but it has also been linked to the use of steroids, the use of alcohol, and to some blood disorders. Often, the triggering mechanism cannot be discerned in individual cases. In that event, the avascular necrosis is termed as "idiopathic."

The Industrial Commission referee also found that once the condition has been triggered, it may progress or become dormant. Sometimes a case may remain dormant for the remainder of a patient's entire life. If the condition progresses, or if a dormant condition is retriggered, symptoms typically do not appear for six months to two years. This is because the body often takes months or years to react to the affliction, and the damage takes some time to become severe enough to induce pain. This opening stage of avascular necrosis has been referred to as the "quiescent period" that precedes more advanced — and painful — stages of the condition. When the hip is affected, avascular necrosis can progress to the point that the femoral head collapses in the joint.

In the present case, both parties agree that Curtis' avascular necrosis was initially the result of a fall she suffered in 1988. (The 1988 accident). The condition was not initially severe, and went into a dormant stage until approximately 2001 or 2002. The disagreement between the parties centers on whether Curtis' avascular necrosis reemerged from dormancy because the condition was aggravated by the physical trauma of the 2001 accident or whether it was "idiopathic" and reemerged for no known reason.

In the Industrial Commission hearing, Dr. Poole, who performed Curtis' hip replacement surgery, offered his expert opinion suggesting that Curtis' avascular necrosis reemerged and ultimately required surgery because of aggravation caused by the 2001 accident. This opinion was supported by another expert witness, Samuel Chmell, M.D. The opposite opinion was voiced by Dr. Rudd, and supported by Michael Phillips, M.D. Dr. Rudd maintained that Curtis' avascular necrosis was most likely idiopathic.

A. Dr. Rudd's Testimony Provided Substantial And Competent Evidence Supporting the Industrial Commission's Determination.

Curtis forthrightly acknowledges that under the standard of review applicable to this case, this Court will uphold the Industrial Commission's decision provided it is supported by substantial and competent evidence. Curtis maintains that in this instance the Industrial Commission's decision lacked such substantial and competent evidence because the Commission relied chiefly on flawed testimony presented by Dr. Rudd.

1. Dr. Rudd's Testimony Was Consistent.

The first flaw alleged in Dr. Rudd's testimony concerns what Curtis describes as a "switch" in Dr. Rudd's position midway through his deposition. In Curtis' view, Dr. Rudd in his July 2002 letter to the SIF first advanced a view that because Curtis did not complain to him of pain in her hip until near the end of the period that he was treating her — from approximately six weeks after the June 2001 accident until May 2002 — she was not afflicted with advancing avascular necrosis during that time. That position, according to Curtis, was untenable because if Curtis' avascular necrosis was retriggered by the 2001 accident, the time during which Dr. Rudd was providing care would correspond to the "quiescent period" of the condition. As a result, rather than being evidence that Curtis' condition was idiopathic, the lack of hip pain during that period would be entirely consistent with Curtis' theory that the 2001 accident retriggered her avascular necrosis.

Curtis asserts her counsel confronted Dr. Rudd with this alleged problem in his testimony, and Dr. Rudd reacted by backtracking and changing his analysis. According to Curtis, Dr. Rudd spontaneously invented a new theory as to why the absence of reported hip pain was important. This allegedly new theory held that although the absence of hip pain during the time Dr. Rudd was treating Curtis was consistent with a developing case of avascular necrosis, if the condition had been retriggered by the 2001 accident there would have been hip pain associated with that accident — and if Curtis had suffered from such past pain she would have reported it to Dr. Rudd even if the pain had abated by the time he first examined her.

In his deposition testimony, Dr. Rudd explained that the human hip is robust, and only severe trauma is normally sufficient to induce avascular necrosis. Although Curtis' fall was hard enough to damage a disk in her back, Dr. Rudd offered that in his opinion Curtis' spine was already "badly degenerated" prior to her 2001 accident and prone to damage from even a low energy fall. According to Dr. Rudd, the degree of trauma necessary to retrigger the avascular necrosis in Curtis' hip would have also produced hip pain. Dr. Rudd acknowledged that any pain produced as a direct result of the trauma (as distinguished from much later pain associated with avascular necrosis when the condition became advanced) would likely have come and gone in the six weeks between the 2001 accident and Curtis' first appointment with Dr. Rudd. However, he testified that Curtis was thorough in describing the history of her injury and the timing and locations of the...