Dean v. Dravo Corp., 11723

• Decision Date: 07 October 1975
• Docket Number: No. 11723,11723
• Citation: 540 P.2d 1337,97 Idaho 158
• Parties: Desmond DEAN, Claimant-Appellant, v. DRAVO CORPORATION et al., Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1337

540 P.2d 1337

97 Idaho 158

Desmond DEAN, Claimant-Appellant, v. DRAVO CORPORATION et al., Defendants-Respondents.

No. 11723.

Supreme Court of Idaho.

Oct. 7, 1975.

Rehearing Denied Oct. 24, 1975.

Paul C. Keeton, Lewiston, for claimant-appellant.

John W. Barrett, of Moffatt, Thomas, Barrett & Blanton, Boise, for defendants-respendents.

McFADDEN, Justice.

Claimant-appellant Desmond Dean underwent corrective surgery on August 31, 1970 for recurrent shoulder dislocation. The operation, known as a capsulorrhaphy, was done by Dr. Robert C. Colburn, an orthopedic surgeon, on Dean's left shoulder following a series of three shoulder dislocations. The facts and circumstances of these dislocations are set out with particularity in Dean v. Dravo Corporation, 95 Idaho 558, 511 P.2d 1334 (1973). For our purposes we note that Dean's first dislocation was the result of an industrial accident on October 14, 1969. The second dislocation occurred while Dean was water-skiing on July 12, 1970, and the third dislocation occurred on August 19, 1970 while Dean was working. During this period Dean was employed by defendant Dworshak Dam Constructors, whose surety was defendant Argonaut Northwest Insurance Company. This proceeding was based on a claim arising out of the dislocation which occurred on October 14, 1969, and the present proceedings were held following filing on October 27, 1970, by Dean of a notice for hearing, seeking payment of medical expenses, temporary disability, and permanent partial disability compensation.

The surety denied Dean coverage for his disability and medical expenses incurred in the surgical repair on the ground that the need for surgery was caused by the intervening nonindustrial water-skiing accident. The cause was heard with Dean and Dr. Colburn being the only witnesses at the hearing. On the basis of Dr. Colburn's testimony the Commission found that Dean suffered a permanent partial disability equivalent to 5% of the loss of the arm at the shoulder and that two-thirds of this disability and two-thirds of the cost of the surgery could be attributed to the October 14, 1969, accident. The Commission then entered its order awarding Dean two-thirds of total disability for eleven weeks, two-thirds of permanent partial disability of five percent as compared to the loss of the arm at the shoulder and two-thirds of the medical expenses incurred. The two-third and one-third allocation was based on the finding by the Commission that two of the dislocations of the shoulder were work connected, and the third dislocation was not.

On the first appeal this court reversed the order of the Commission (Dean v. Dravo Corporation, supra) on the ground that Dr. Colburn had testified with an improper definition of the term 'probability' in mind. The opinion pointed out that special attention should be given to the definition of 'probable' in the legal sense rather than the popular sense, stating that 'a probability exists when there is more evidence in favor of a proposition than against it.' Dean v. Dravo Corporation, 95 Idaho 558, 562, 511 P.2d 1334, 1338 (1973).

Upon remand, Dr. Colburn was the only witness. On direct examination he testified that he had come to a conclusion as to whether there was a relation between the October 1969 dislocation and the two subsequent dislocations, one on July 12, 1970, and again on August 19, 1970. He stated:

'At that time I came to the conclusion that he had, by definition, a recorrect (recurrent) dislocation of the shoulder. When I first saw him he had had two dislocations and we feel that is recurrent dislocations. At the time, at least, when we scheduled the surgery he had had the third dislocation which really confirmed that he did have a condition of recorrect (recurrent) dislocation.'

He testified that he was familiar with the opinion of this court and its definition of the term 'probability' and also of the term 'possibility.' He then stated that in his opinion:

'I think that it is probable that the injury of October 1969 was the factor in the development of the condition that I saw him-that we performed the surgery for in 1970.'

Dr. Colburn testified that statistical studies reflect that if a person is under the age of forty, the chance of a shoulder dislocation recurring is about seventy percent. This figure drops to thirty percent for those over the age of forty. (At the time of the first dislocation, Dean was about 34 years of age.) Dr. Colburn then testified:

'Q. Did you take those statistics into consideration in reaching your conclusion as to a reasonable degree of medical certainty or probability in this case?

'A. Yes. I felt that this was consistent with the definition of probability as the existence of the thing is rated when there is more evidence in favor of its existence than against it. I felt that the statistics were more in favor of this than against it.'

Dr. Colburn was then asked if he had an opinion on the question of whether Mr. Dean's disability as he had previously rated him, was connected with the three accidents, and he stated that he thought there was a connection. He stated:

'I would hark back to the definition. Since the surgery was done for recurrent dislocated shoulder and since his disability essentially is caused by the effects of the surgery in limiting his shoulder motion to some extent, in the sense it stated that I think it is probable that the October 1969 dislocation was the cause of his recurrent dislocation, then, I think that disability, by corollary, would be related to the October injury.'

On cross-examination, Dr. Colburn was asked to consider a statement he had made in a written report concerning Dean, and in particular concerning the second dislocation. Following a summation of the facts he was asked:

'Would the second dislocation (from waterskiing) have occurred even though the first one had not occurred, considering the amount of force and the nature of the accident that we are confronted with in the water skiing accident?'

To which question Dr. Colburn answered:

'A I think this is something we have to speculate on, I don't think we have any real way to say.'

He was then asked after some preliminary statements:

'Can you state medically, without speculating, whether the second dislocation would have occurred had not the first one occurred; considering the history given to you by Mr. Dean * * * and your findings?

A. Medically I don't think we can state absolutely I mean without speculating.

Q. I mean without speculating.

A. Without speculating. Except that we know that statistically a man under forty is more likely to develop this.'

The record further shows the following testimony by Dr. Colburn:

'Q. Could you state with that definition (the definition of 'probability'), with the history as reported * * * that we just covered. Would that water skiing would not have occurred or would have occurred had it not been for his first accident in October of '69, concerning his history that you related in your letter of July 16, 1970?

'A. I don't think that there is any way that, medically, that we can determine that. I don't think medically, by what we found and form the surface in examining the person that we can say without some conjecture and some reliance on other recorded information, that the water skiing dislocation would or would...