Curtis v. Shoshone County Sheriff's Office

• Citation: 629 P.2d 696,102 Idaho 300
• Decision Date: 04 June 1981
• Docket Number: No. 13268,13268
• Parties: Robert L. CURTIS, Claimant-Respondent, v. SHOSHONE COUNTY SHERIFF'S OFFICE, Employer, and State Insurance Fund, Surety, Defendants-Appellants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 696

629 P.2d 696

102 Idaho 300

Robert L. CURTIS, Claimant-Respondent, v. SHOSHONE COUNTY SHERIFF'S OFFICE, Employer, and State Insurance Fund, Surety, Defendants-Appellants and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondent.

No. 13268.

Supreme Court of Idaho.

June 4, 1981.

Philip E. Dolan, Coeur d'Alene, for defendants-appellants.

Thomas A. Mitchell, Coeur d'Alene, James P. Keane, Kellogg, for claimant-respondent.

DONALDSON, Justice.

Defendants-appellants Shoshone County Sheriff's Office and State Insurance Fund appeal an award by the Idaho Industrial Commission of total permanent disability benefits to Mr. Robert L. Curtis and a dismissal of Mr. Curtis' claim against the Idaho Industrial Special Indemnity Fund. Defendants-appellants seek to have the matter remanded to the Industrial Commission for further proceedings to determine whether Mr. Curtis is totally and permanently disabled. In the alternative, they allege that a portion of the liability for payment of compensation benefits should be allocated to the Idaho Industrial Special Indemnity Fund.

On October 21, 1976, Mr. Curtis was injured in the course of his employment as undersheriff of Shoshone County, Idaho. The injury resulted when Mr. Curtis and a fellow officer, Vic Lees, attempted to arrest a large, intoxicated male. During the course of the arrest, the intoxicated man grabbed Mr. Curtis around the neck, threw him on the ground, and landed on him.

At the time of the October 21st incident, the claimant was 60 years of age. He had quit school when he was in the tenth grade. His work experience includes working as a ranchhand, a plaster board assembly line worker, a logger, a miner, a mechanic, an equipment operator, an owner/operator of an ice cream/hamburger drive-in restaurant, the Osburn Chief of Police, a juvenile probation officer, and a Shoshone County police officer. According to Dr. Gnaedinger, the claimant's medical problems before October 21, 1976, did not prevent him from obtaining and retaining employment but prevented him from seeking work that required strenuous exertion such as mining or logging.

The record indicates that the claimant has had several medical problems throughout his life. In 1956, his back and hips were severely injured when he was pinned under an overturned dozer. His back was reinjured while lifting a shaft at work in 1957. The reinjury required surgical removal of two disks and some fusion. After the operation, the claimant signed a compensation agreement in which he was rated as having a permanent partial disability equal to 40% of the loss of a leg at the hip. Evidence in the record indicates that prior to the October 21st accident, the claimant was unable to stay comfortably in one position very long or lift very much weight because of his back. Furthermore, claimant testified that prior to October 21, 1976, that his back pain was so severe at times that it caused him to fall to the floor. In about 1959, claimant accidentally cut off his left index finger while sawing boards to build a table for his drive-in restaurant. While police chief he wore a full body brace almost continuously for a couple of years. Other medical problems include an ulcer and a hiatus hernia.

As a result of the October 21st incident, claimant had pain and weakness in his right arm and pain in his neck. Also, claimant claims that he has needed to increase the wearing of his back brace to the point where he now must wear it almost all of the time. Although Dr. Gnaedinger's and Dr. Brunjes's medical reports were admitted by the Industrial Commission, Dr. Gnaedinger was the only doctor to testify and did so without the assistance of notes or his office records. He testified that in regards to the October 21st injury he referred Mr. Curtis to specialists who performed thoracic outlet syndrome surgery and a laminectomy for a herniated disk. The disk removal brought the claimant's arm some relief but he still has weakness, and at times, cramping in the arm.

Mr. Curtis is unable to extend his neck at all and has approximately thirty percent of normal neck rotation to either side. Since Mr. Curtis' thoracic outlet syndrome surgery, he has developed a severe allergic reaction which sometimes causes his tongue, face and feet to swell. The cause of the reaction is unexplained. Claimant presently controls the allergy through medication. Dr. Gnaedinger testified that he did not believe that the back pain got worse because of the October 21st accident. Curtis testified that not only has his back condition gotten worse as a result of the October 21st accident but he has had to take medications for allergy, an ulcer, and pain.

Based on medical factors, Dr. Gnaedinger rated Mr. Curtis' degree of impairment as a result of the October 21st accident as twenty percent of the total man and his degree of impairment as a result of everything as one hundred percent of the total man. He did not consider Mr. Curtis' age, sex, education, economic, or social environment in making these impairment evaluations.

In a decision awarding Mr. Curtis total permanent disability payments, the Industrial Commission made a number of findings of fact (F/F) and conclusions of law (C/L), some of which are the following:

(1) The October 21st incident aggravated Mr. Curtis' previously existing back condition. F/F II.

(2) As a result of the October 21st accident, Mr. Curtis is totally and permanently unable to engage in any gainful activity for which any reasonable stable market exists. F/F VIII.

(3) Mr. Curtis did mostly manual labor and was in the "odd-lot" category. C/L I.

(4) The defendants failed to establish any gainful activity in which appellant could engage. C/L I.

(5) Mr. Curtis' disability from the accident of October 21, 1976,

"can be determined by finding his permanent disability before that accident and subtracting that from 100%.... While the claimant had several physical impairments before October 21, 1976, none of these impairments constituted any hindrance to obtaining employment or performing the activities required by his employment. Because the claimant's ability to engage in gainful activity before October 21, 1976, was not reduced, he had no permanent disability at that time. Therefore, 100% of the claimant's disability is due to the accident of October 21, 1976. So the employer and the surety are liable for all benefits due the claimant. The Industrial Special Indemnity Fund is not liable to the claimant for any workmen's compensation benefits." C/L III.

The scope of our review in workmen's compensation cases is established both by the Idaho Constitution, Art. 5, § 9, and by statute, I.C. §§ 72-724, 72-732. This Court only has the authority to reverse a decision of the Commission when its decisions are unsupported by "any substantial competent evidence," I.C. § 72-732(1), or are not supportable as a matter of law, Idaho Constitution, Art. 5, § 9. Sykes v. C.P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980).

This Court has made it clear that a workmen's compensation claimant has the burden of proving that an injury arising out of and in the course of his employment was the probable cause or a probable contributing cause of his compensable disability. Dean v. Dravo Corporation, 95 Idaho 558, 511 P.2d 1334 (1973). The record in the case at bar contains substantial competent evidence to support the Industrial Commission's award to Mr. Curtis of total permanent disability. Therefore, we affirm the award. As admitted by the Sheriff's Office counsel at oral arguments, the primary issue before this Court is not the Industrial Commission's finding of total permanent disability but is the Industrial Commission's refusal to allocate part of the responsibility for those payments to the Idaho Industrial Special Indemnity Fund.

The liability of the Idaho Industrial Special Indemnity Fund is controlled by I.C. § 72-332 which states:

"PAYMENT FOR SECOND INJURIES FROM INDUSTRIAL SPECIAL INDEMNITY FUND. (1) If an employee who has a permanent physical impairment from any cause or origin, incurs a subsequent disability by an injury or occupational disease arising out of and in the course of his employment, and by reason of the combined effects of both the preexisting impairment and the subsequent injury or occupational disease or by reason of the aggravation and acceleration of the preexisting impairment suffers total and permanent disability, the employer and surety shall be liable for payment of compensation benefits only for the disability caused by the injury or occupational disease, including scheduled and unscheduled permanent disabilities, and the injured employee shall be compensated for the remainder of his compensation benefits out of the special industrial indemnity fund.

(2) As used in this law, 'permanent physical impairment' means any permanent condition, whether congenital or due to the injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed. (I.C., § 72-332, as added by 1971, ch. 124, § 3, p. 422.)"

This Court in Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 404 n. 1, 565 P.2d 1360, 1361 n. 1 (1977) explained the operation of I.C. § 72-332 as follows:

"By virtue of I.C. § 72-332 the Fund can become liable for compensation benefits whenever an employee with an existing permanent physical impairment becomes totally and permanently disabled due to an injury arising out of and in the course of his employment. The total and permanent disability must be the result either of the combined effects of the preexisting impairment and the subsequent injury, or of the aggravation and acceleration of the preexisting impairment by the subsequent injury. In such cases the employer and its surety are liable for compensation benefits only for the disability caused by the subsequent and last...