Fountain v. T. Y. and Jim Hom
| Citation | 453 P.2d 577,92 Idaho 928 |
| Decision Date | 24 April 1969 |
| Docket Number | No. 10216,10216 |
| Court | United States State Supreme Court of Idaho |
| Parties | Claudia FOUNTAIN, Claimant-Appellant, v. T. Y. & JIM HOM dba Chopstick Cafe, and Argonaut Insurance Company, Defendants-Respondents. |
Moffatt, Thomas, Barrett & Blanton, Boise, for respondents.
On September 11, 1963, Claudia Fountain, appellant herein, injured her back while lifting a tray of dishes at her place of employment, the Chopstick Cafe in Pocatello, Idaho. After some diagnostic studies it was determined appellant had a vertebral injury in the 5th lumbar-1st sacral area. In December of 1963, exploratory surgery and a laminectomy were performed. The 4th lumbar disc was determined to be normal.
After the December 1963 operation, the appellant evidenced symptoms of pain in the back and down the right leg through the ankle and foot with numbness on the calf and sole of the foot. Further surgery was recommended and performed in May of 1964. During this second surgery a further laminectomy and a lumbo-sacral joint fusion were performed.
In November 1964, Dr. E. B. Shaw, of Pocatello, saw appellant for the first time. In January of 1965, he performed the third operation. He found the area of L3-L5 to be normal, but the ,5-S1 area was affected with nerve root adhesions as a result of scar tissue formation. The nerve roots were freed and the holes through which they passed were enlarged.
After the third operation appellant suffered from 'drop foot' of her right foot and had to wear a brace to walk. She also had extensive pain and numbness on the outside of her leg from the knee down.
Subsequently, appellant and representatives of the respondents arranged for an evaluation of appellant's condition by a panel of three Boise doctors. Dr. Shaw concurred in the panel's conclusion that appellant should be rated for a partial permanent disability of 50% of the loss of one leg at the hip. At Dr. Shaw's request, appellant was also examined by a neurosurgeon who likewise concurred that no further surgical procedure was indicated. (emphasis added)
Thereafter a lump sum settlement agreement was entered into by appellant, who was represented by counsel, and the respondents. The agreement contained the following language:
Consideration for the agreement was $3,410.32 for 94 weeks and two days of a disability equivalent of 50% of the loss of one leg at the hip. An additional $586.70 was paid as consideration for the lump sum agreement itself. The agreement was approved by the Industrial Accident Board on September 13, 1965.
Appellant did not again consult Dr. E. B. Shaw until about one year later, August 23, 1966. At that time she complained that her condition had apparently deteriorated over the immediately prior six weeks and that although she had been doing fairly well previously she was then suffering a recurrence of her earlier symptoms.
On August 30, 1966, appellant was admitted to the hospital for certain conservative treatment such as traction. The treatment was apparently unsuccessful and on September 9, 1966, a myelogram was performed. According to Dr. Shaw, the myelogram showed 'that she had some apparently ruptured disc at L-4, 5 and L-5 S-1 level.' Appellant was scheduled for surgery and was operated on on September 12, 1966. Dr. Shaw described the operation as follows:
'The disc was removed, the adhesions were relieved as well as possible, and I performed a transverse process fusion of this lady because during the operation, the old fusion she had was broken up in order to examine the nerve root.' (emphasis added)
The doctor then described the results of the surgery:
'Q And would you state whether or not there was any change with respect to this drop foot condition following the second surgery?
'Q * * * Did you notice any other improvement * * * in her condition as a result of that second surgery?
As a result of this fourth operation appellant no longer needs the foot brace she previously had to wear. The treatment resulted in expenses of $1995.44, part of which was compensated for by appellant's husband's insurance. Further treatment is still indicated, according to Dr. Shaw.
The Board made findings of fact in accord with the foregoing statement of facts, and then rendered the following conclusion of fact:
'VI
'The Board finds that at the time of the partial permanent disability rating of 1965 by the panel of physicians in Boise, the attending physician, E. B. Shaw, M. D., Pocatello, and the consulting neurosurgeon, George Barnard, M. D., Idaho Falls, there was no error and the following conclusions of law:
or mistake concerning the condition of the claimant, and that the claimant was in fact surgically healed and no further surgical procedure at that time was indicated (reports of various physicians, Board file stipulated in evidence; testimony of E. B. Shaw, M. D., trans., p. 27, lines 4 et seq.) The Board further finds that the claimant, since the rating by the physicians, and the lump sum agreement, underwent a change of condition between that time and approximately one year later.'
'I
'It is the ruling of this Board that the claimant has not sustained her burden of proving that there is any ground for setting aside the lump sum agreement entered into between the parties and duly approved by the Board on September 13, 1965; that the claimant has wholly failed to establish any sufficient grounds required under the statutes and decisions in this jurisdiction in that claimant has failed to prove fraud on the part of the defendants, or any representative of said defendants, or either of them, or any of the physicians.
'II
'It is the further ruling of this Board that the claimant has wholly failed to sustain her burden of proof that there was any mistake in fact, or otherwise, of the physicians who treated or examined her prior to execution of the lump sum agreement, and at that time advised her that no additional surgical procedure was indicated.'
Appellant, through her assignments of error, recognizes, among others, the two issues which will resolve this appeal:
(1) Was her condition a continuing one which was previously overlooked, or a 'change of condition' as determined by the Board?
(2) If this was not a 'change of condition,' is an honest mistake of fact on the part of all concerned, sufficient to set aside a Workmen's Compensation Release?
I.C. § 72-607 1 provides that a compensation award may be reviewed and modified on the basis of a change of condition unless there is a lump sum settlement as provided by I.C. § 72-321 2. Therefore, it is incumbent on appellant, in the context of this case, to establish that there was no change in condition.
To establish her theory, the appellant cites the testimony of Dr. Shaw as 'admitt(ing) directly that the advice given by himself and the other doctors subsequent to the third operation was obviously in error.' The question and answer alleged to sustain this position were:
'Q Doctor, based on reasonable medical certainty and based upon your observation of the patient in the second surgery performed by you, do you have an opinion as to whether the advide that was given following the January, 1965 operation, that no 'A Well, this lady certainly gained a lot of benefit from my second operation there is no question about that.'
further surgery could help this lady, might have been somewhat in error?
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