Fowble v. Snoline Exp., Inc.

• Decision Date: 01 August 2008
• Docket Number: No. 34151.,34151.
• Citation: 146 Idaho 70,190 P.3d 889
• Parties: Perry Joe FOWBLE, Claimant-Respondent, v. SNOLINE EXPRESS, INC., Employer, and Liberty Northwest Insurance Corporation, Surety, Defendants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.
• Court: Idaho Supreme Court

190 P.3d 889

146 Idaho 70

Perry Joe FOWBLE, Claimant-Respondent, v. SNOLINE EXPRESS, INC., Employer, and Liberty Northwest Insurance Corporation, Surety, Defendants, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Appellant.

No. 34151.

Supreme Court of Idaho, Boise, May 2008 Term.

August 1, 2008.

Kirkendall Law Office, Boise, for appellant. Lawrence E. Kirkendall argued.

Ludwig, Shoufler & Miller, Boise, for respondent. Daniel A. Miller argued.

SUBSTITUTE OPINION.

THE PRIOR OPINION ISSUED JUNE 18, 2008 IS HEREBY WITHDRAWN.

W. JONES, Justice.

I. STATEMENT OF THE FACTS

Perry "Joe" Fowble (Fowble) is a former truck driver who filed a claim against the Idaho State Special Indemnity Fund (ISIF), alleging that he was totally and permanently disabled due to the combined effects of his previous injuries and his most recent injury. The Referee concluded that Joe Fowble was indeed totally and permanently disabled as an "odd lot" worker, and apportioned liability between his employer's surety and ISIF. The Industrial Commission upheld the finding and ISIF accordingly appeals.¹

Throughout his career, Fowble was employed at several locations:

• He worked at a potato processing plant in 1969.

• During most of the 1970's he performed auto body work at Peterson Motors, Anderson Buick, and Miller Stephan.

• From 1979-1981, he worked at his own auto body shop.

• During the first part of the 1980's, he began driving his own logging trucks.

• He hauled meat and potatoes for Armour Meats in 1986. At this job, Fowble often was required to unload containers exceeding 200 pounds.

• About 1994, Fowble began working for Navajo Express hauling beef from Boise to Ontario. He was not required to load or unload that freight. In September of 2001, Navajo Express terminated Fowble's employment.

• Finally, in June 2003, Fowble began work as a truck driver for Snoline Express.

Fowble's most recent injury occurred on September 18, 2003 while in the employ of Snoline Express. Fowble struck his knee after slipping and falling while unloading a carton of flowers at Wal-Mart. As a consequence, Fowble's knee was injured, and a tooth was knocked out, another knocked loose. Dr. George Nicola treated Fowble, administering steroid knee injections and ordering physical therapy. Fowble's knee swelled and worsened due to the physical therapy. Dr. Nicola permitted Fowble to return to work on December 1, 2003. Eventually, Fowble was forced to undergo arthroscopic surgery performed by Dr. Robert Walker. Subsequent attempts at rehabilitation were unsuccessful. Dr. Walker forbade Fowble from continuously lifting more than 35 pounds and from occasionally lifting 50 pounds.

While recovering, Fowble sought employment by consulting with Danny Ozuna, an Industrial Commission rehabilitation consultant. Despite submitting at least 100 applications between March and December of 2004, Fowble enjoyed no success in his pursuit of employment. He filed for Social Security Disability benefits on December 15, 2004. The Referee concluded that Fowble's left knee was worse than his right, and that his condition is worse than before the accident at Wal-Mart. In fact, Fowble's knee becomes swollen and causes pain after an hour and a half of engaging in the everyday task of grocery shopping. In addition, on January 28, 2004, Fowble had "a considerable amount of thigh atrophy," and Dr. Walker believed that Fowble's symptoms would improve with further strengthening.

Because of various factors including Fowble's physical condition, vocational rehabilitation expert Barbara Nelson believed that Fowble was totally and permanently disabled. She determined through the Wide Range Achievement Test that Fowble could read at a third grade level and spell at a second grade level. He therefore was functionally illiterate and unable to complete job applications without assistance. Moreover, Douglas Crum, ISIF's own expert, maintained that Fowble possessed limited transferable skills and that his career prospects were limited to entry-level jobs that, at best, paid nominally better than minimum wage.

Prior to Fowble's most recent injury, he sustained several other injuries:

• In 1969, he injured both knees and fractured an ankle after being struck by several falling boxes of French fries while he was in the midst of unloading freight for Carnation. The injury necessitated surgery from which Fowble recovered well.

• In 1991 Fowble was involved in an automobile accident that resulted in disk herniations and cervical fusion surgery. After two years, he eventually recovered from the surgery and noticed no significant residual limitations.

• On January 3, 1998, he injured his right knee in a slip-and-fall incident while employed by Navajo Express. Fowble underwent additional surgery as a result of this injury, returning to work within three months.

• On April 16, 2001, while still employed for Navajo, he re-injured his knees hauling a trailer that he erroneously believed to be secured to his cab. When the trailer unexpectedly dropped, he was thrust forward, which caused his knees to smash into the dashboard. This accident resulted in surgery on his left knee.

Dr. Peterson determined that Fowble's right knee impairment was 10% of the lower extremity, due to the 1998 injury. In 2001, Dr. Friedman rated Fowble's left knee impairment at 2% of the whole person. Prior to the 2003 accident, Fowble's whole person impairment totaled 6% according to the Referee. Also prior to the 2003 accident, Dr. Peterson issued a medical statement as follows:

I have reviewed the independent medial (sic) examination done by Dr. Friedman. I agree with his findings (sic) specifically he does have a pre-existing degenerative condition to his knees, (sic) that alone may make it impossible for him to return to his driving occupation. I agree that he doesn't need any specific permanent restrictions or limitation and would expect him to improve over time.

Dr. Walker concluded that the 2003 accident caused permanent impairment of 5% of the whole person, whereas Dr. Nicola maintained that no impairment resulted from that accident. Walker opined that the 5% impairment was due to thigh atrophy that was separate from preexisting degenerative changes, stating that due to "thigh muscle atrophy, [Fowble] is judged to have a 5% impairment of the whole person, due to the 4 cm difference in thigh circumference. Mr. Fowble also has preexisting degenerative changes of the articular cartilage which were not included in his impairment rating as they preexisted his industrial injury," and further stated that "[o]f the 5% impairment of the whole person, there is no apportionment due to a preexisting medical condition." Fowble had attempted to improve his thigh atrophy, but only enjoyed limited progress. The Referee sided with Dr. Walker because Dr. Nicola's treatment produced negative effects that prompted Fowble to return to Dr. Walker for treatment.

Based on the foregoing facts, the Referee further concluded that Fowble was 65% permanently disabled, and that he was an "odd lot" employee after the 2003 injury but not before.

II. ISSUES

Issue 1: Whether the Commission's finding that Fowble met his medical burden of proof was clearly erroneous.

Issue 2: Whether the Commission's finding that Fowble was not an "odd lot" employee before the 2003 accident was clearly erroneous.

Issue 3: Whether Fowble is entitled to costs or attorney's fees.

III. STANDARD OF REVIEW

When reviewing a decision of the Industrial Commission, this Court exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings. Substantial and competent evidence is relevant evidence which a reasonable mind might accept to support a conclusion. It is more than a scintilla of proof, but less than a preponderance. All facts and inferences will be viewed in the light most favorable to the party who prevailed before the Industrial Commission.

Stolle v. Bennett, 144 Idaho 44, 47-48, 156 P.3d 545, 548-49 (2007) (internal quotations and citations omitted).

Moreover, the Supreme Court "will not disturb the Commission's conclusions on the weight of the evidence unless they are clearly erroneous." Wheaton v. Indus. Special Indem. Fund, 129 Idaho 538, 541, 928 P.2d 42, 45 (1996). It may set aside the Commission's order or award if:

(1) the commission's findings of fact are not based on any substantial competent evidence; (2) the commission has acted without jurisdiction or in excess of its powers; (3) the findings of fact, order or award were procured by fraud; or (4) the findings of fact do not as a matter of law support the order or award.

I.C. § 72-732; Page v. McCain Foods, Inc., 145 Idaho 302, 305, 179 P.3d 265, 268 (2008).

IV. LEGAL FRAMEWORK

The provisions of workers' compensation laws are to be liberally construed in favor of the claimant, as the humane purposes they seek to serve leave no room for narrow, technical construction. Kinney v. Tupperware Co., 117 Idaho 765, 769, 792 P.2d 330, 334 (1990). Idaho Code § 72-424 provides that evaluation of permanent impairment "is a medical appraisal of the nature and extent of the injury or disease as it affects an injured employee's personal efficiency in the activities of daily living, such as self-care, communication, normal living postures, ambulation, elevation, traveling, and nonspecialized activities of bodily members." As the ultimate fact-finder, the Commission determines the extent of impairment, not a physician whose opinions are advisory only. Urry v. Walker and Fox Masonry, 115 Idaho 750, 755, 769 P.2d 1122, 1127 (1989). But, the "causal relationship of an injury to the claimant's employment must be supported by at least some medical proof." Politte v. Dept. of Transp., 126 Idaho 270, 273, 882 P.2d 437, 440 (1994). The claimant's burden is met when he submits proof of...