Gordon v. West

• Decision Date: 06 May 1982
• Docket Number: No. 13425,13425
• Citation: 103 Idaho 100,645 P.2d 334
• Parties: William A. GORDON, Claimant-Appellant, v. W. C. WEST, Employer; and Industrial Indemnity Co., Surety, and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondents.
• Court: Idaho Supreme Court

Page 334

645 P.2d 334

103 Idaho 100

William A. GORDON, Claimant-Appellant, v. W. C. WEST, Employer; and Industrial Indemnity Co., Surety and State of Idaho, Industrial Special Indemnity Fund, Defendant-Respondents.

No. 13425.

Supreme Court of Idaho.

May 6, 1982.

Nicholas M. Lamanna, Priest River, for claimant-appellant.

Samuel Eismann, Thomas A. Mitchell, Coeur d'Alene, for defendants-respondents.

BAKES, Chief Justice.

This appeal is from an order of the Idaho Industrial Commission declaring that claimant, William A. Gordon, was only partially permanently disabled as a result of an industrial accident and denying recovery from the Industrial Special Indemnity Fund.

The record discloses that claimant appellant is 57 years old and lives in Sandpoint, Idaho. He has the equivalent of a high school education and has been employed as a lumber truck driver since approximately 1946. On January 8, 1976, the date of the accident involved in this case, claimant was employed by W. C. West, the defendant employer.

Gordon has an extended history of work related injuries. In about 1953, Gordon's foot was twisted when he was securing a load of lumber on his truck. This accident led to the fusion of his right ankle and left him permanently and partially impaired to an extent of 12% of the whole man. Additionally, lightning struck Mr. Gordon in about 1973 while he was changing a tire on his truck. Gordon testified that the lightning strike caused some injury to a toe on his right foot and some soreness to develop in his neck. Claimant further testified as to other minor work related injuries, including an altercation with a fellow employee in which he injured his neck and shoulder, smashing a finger in a tailgate, and falling from a lumber trailer and spraining his wrists. After each of these injuries, claimant returned to his employment.

On January 8, 1977, claimant was loading bundled lumber upon his truck. The Industrial Commission found that while claimant was prying with a large board against a bundle, the board broke, and claimant fell forward into the load, striking his head as he fell. Gordon finished loading the truck but suffered pain in his neck, left arm, and between his shoulder blades.

The claimant subsequently sought medical treatment from his family physician, who referred him to Dr. Lynch, a neurosurgeon in Spokane, Washington. Claimant was examined by Dr. Lynch on January 26, 1977, and hospitalized for an injury to the seventh nerve in his neck. Examination disclosed a bone spur, or osteophyte, which had been present for several years; Dr. Lynch, however, testified that he thought the osteophyte to be asymptomatic until the 1977 accident. Dr. Lynch removed the osteophyte to relieve compression of the seventh cervical nerve root.

Dr. Lynch treated the claimant until July 20, 1977, when the nerve pain related to the osteophyte was believed to have been relieved. Dr. Lynch testified concerning his earlier written report that claimant's shoulder problem could be corrected and that he probably would be able to return to gainful employment. Claimant, however, continued to complain of pain in his left arm and shoulder, which Dr. Lynch believed to be caused by capsulitis, an inflammation of the joint related to claimant's cervical nerve root injury. Dr. Lynch suggested that claimant see an orthopedic surgeon for further treatment.

Dr. Blaisdell, an orthopedic surgeon, examined Mr. Gordon in June and July of 1977, giving injections for the pain in his shoulder on two occasions. Although claimant underwent no further treatment for the condition related to the 1977 accident, Dr. Blaisdell examined claimant on December 24, 1977, and subsequently rated his permanent physical impairment relating to this injury at 15% of the whole man, with 10% apportioned to the neck and cervical problem and 5% to the left shoulder. Dr. Blaisdell testified that this 15% impairment figure related only to limitations on claimant's range of motion.

Claimant filed an application for hearing before the Industrial Commission and a motion to join the Idaho Special Indemnity Fund (Fund) on January 30, 1978. At the hearing held on November 6, 1978, claimant testified of continuing pain in his neck, left shoulder, between his shoulder blades, lack of sleep, inability to lift heavy objects above the waist, and that his arms became numb while driving. At the conclusion of the hearing, the commission found that Mr. Gordon had a total temporary disability from January 14, 1977, until December 24, 1977, and that thereafter he had permanent partial disability resulting from the January 8, 1977, accident which amounted to 15% of the whole man. Claimant was awarded income benefits against defendant Industrial Indemnity Company. ¹ The commission found that since claimant was not totally and permanently disabled, no recovery from the Idaho Special Indemnity Fund could be obtained and dismissed the Fund. After the commission denied claimant's motion for reconsideration, claimant filed notice of appeal alleging as error the commission's failure to find that claimant is totally and permanently disabled.

The claimant in a workman's compensation case has the burden of proving that he has suffered a compensable injury in the course of his employment. Dean v. Dravo Corp., 95 Idaho 558, 511 P.2d 1334 (1973); Davenport v. Big Tom Breeder Farms, Inc., 85 Idaho 604, 382 P.2d 762 (1963). As to his total temporary disability, Gordon met this burden, and the Industrial Commission found that the fall from his truck in January of 1977 caused the osteophyte in his neck to become symptomatic, necessitating surgery. In its finding of fact number 10, the commission found that claimant was totally disabled from January 14, 1977, the date he ceased work, until December 24, 1977, at which time he had reached a permanent and stable condition. The crucial issue on appeal in this case is whether there was substantial competent evidence to sustain the commission's finding that after December 24, 1977, claimant's permanent disability caused by the 1977 accident did not exceed his permanent impairment rating of 15% of the whole man. ² Our review of Industrial Commission findings of fact is limited in scope by Idaho Const. art. 5, § 9, and I.C. §§ 72-724, and -732. "This Court only has authority to reverse a decision of the commission when its findings are unsupported by 'any substantial competent evidence', I.C. 72-732(1), or are not supportable as a matter of law, Idaho Const. art. 5, § 9." Curtis v. Shoshone County Sheriff's Office, 102 Idaho 300, ---, 629 P.2d 696, 699 (1981); Sykes v. C. P. Clare & Co., 100 Idaho 761, 605 P.2d 939 (1980); Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896, 591 P.2d 143 (1979). The commission had before it evidence of Mr. Gordon's age, skills, training, education, his testimony, and the testimony of two treating doctors.

In addition to the testimony set out above in the statement of facts, the following evidence was before the commission. On cross examination, Mr. Gordon stated that he had experienced some pain in his neck, particularly when lifting, ever since he was struck by lightning in 1973. He denied experiencing pain in his shoulder or arm prior to the 1977 accident. Dr. Lynch testified that the surgery performed to remove the osteophyte was successful and that his earlier written report indicated that claimant was free of pain in his shoulder and arm at the termination of hospitalization. Dr. Lynch felt that the capsulitis, the source of Mr. Gordon's continuing pain, was related to his cervical nerve root injury. His testimony further indicated that if capsulitis is diagnosed early and treated appropriately it would last, at the most, possibly six months. Finally, Dr. Lynch stated that a condition which had caused claimant trouble and some pain at night, thoracic outlet syndrome, was not connected to the 1977 injury and had subsequently been resolved.

Dr. Blaisdell, the orthopedic surgeon who treated claimant after Dr. Lynch's treatment was completed, testified that Mr. Gordon received no treatment other than the two injections for shoulder pain, but that Dr. Blaisdell had examined him in October, 1977, for purposes of a progress report to the insurance company. Dr. Blaisdell testified that in October, 1977, claimant's shoulder was not significantly symptomatic, and the pinched nerve in claimant's neck had responded quite well to treatment. The weight to be given evidence is a question for the Industrial Commission, Murray v. Hecla Mining Co., 98 Idaho 688, 571 P.2d 334 (1977), and the extent of an injured worker's disability for work is a factual matter committed to the particular expertise of the Industrial Commission. Thom v. Callahan, 97 Idaho 151, 540 P.2d 1330 (1975); Bottoms v. Pioneer Irr Dist., 95 Idaho 487, 511 P.2d 304 (1973). The findings of the commission that Mr. Gordon's permanent disability rating amounted to 15% of the whole man is supported by substantial and competent medical and non-medical evidence, as reviewed above, contained in the record.

On appeal, Gordon maintains that he established a prima facie case that he falls within the "odd lot" category of workers, and that because of his odd lot status the commission erred in failing to shift the burden of proof regarding the degree of disability to the defendants. An odd lot worker is an employee who is so injured that he can "perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist." Reifsteck v. Lantern Motel & Cafe, 101 Idaho 699, 700, 619 P.2d 1152, 1153 (1980), citing Arnold v. Splendid Bakery, 88 Idaho 455, 463, 401 P.2d 271, 276 (1965); Lyons v. Industrial Special Indemnity Fund, 98 Idaho 403, 565 P.2d 1360 (1977); see 2 Larson, The Law of Workmen's Compensation § 57.51 (1976). A claimant must establish a prima facie case that he is in...