Jarvis v. Rexburg Nursing Center

• Decision Date: 26 December 2001
• Docket Number: No. 27185.,27185.
• Citation: 38 P.3d 617,136 Idaho 579
• Parties: Laurie Ann JARVIS, Claimant-Appellant, v. REXBURG NURSING CENTER, Non-Insured Employer, Defendant-Respondent.
• Court: Idaho Supreme Court

38 P.3d 617

136 Idaho 579

Laurie Ann JARVIS, Claimant-Appellant, v. REXBURG NURSING CENTER, Non-Insured Employer, Defendant-Respondent.

No. 27185.

Supreme Court of Idaho, Rexburg, September 2001 Term.

December 26, 2001.

Dalling & Dalling, Idaho Falls, for appellant.

Respondent Rexburg Nursing Center did not participate in this appeal. EISMANN, Justice.

Laurie Jarvis (Jarvis) appeals from orders of the Industrial Commission following a hearing regarding her permanent disability rating. We affirm the findings and order of the Commission.

I. FACTS AND PROCEDURAL HISTORY

Jarvis was employed as a janitor by the Rexburg Nursing Center in Rexburg, Idaho. On January 2, 1989, she injured her back while mopping the dining room floor. She finished her shift and went home. The following morning she went to work, but could not perform her duties because of the pain. She reported her injury to her employer, who referred her to a local physician. He prescribed conservative treatment and subsequently referred her to an orthopedic surgeon in Idaho Falls.

After a period of conservative treatment, on March 20, 1989, the orthopedic surgeon performed surgical laminectomies and discectomies on Jarvis' back at the L5-S1 and L4-L5 levels. The surgery did not relieve her complaints of pain.

Before her surgery Jarvis had filed an application for a hearing with the Industrial Commission. The employer did not file an answer, and on May 17, 1990, the Commission granted Jarvis' motion to enter default against the employer.

The hearing was held on August 14, 1990. Because of the default entered against the employer, it did not participate in the hearing. The referee found that Jarvis had not reached medical stability and that from the date of her accident she had been totally and temporarily disabled from performing her work. Jarvis' orthopedic surgeon recommended that she attend a pain clinic to help her manage her current level of pain and that she then have further surgery. The referee found that Jarvis had not yet reached maximal medical rehabilitation, but that if she did not attend the pain clinic and receive the further surgery, she would probably be totally and permanently disabled. The Industrial Commission adopted the referee's findings of fact and ordered that Jarvis receive total temporary disability income benefits, payment for her medical bills, future medical benefits that included attendance at a pain clinic and the further surgery recommended by her orthopedic surgeon, and continuing total temporary disability benefits until she received the recommended medical treatment and reached medical stability. The Industrial Commission also awarded her attorney fees under Idaho Code § 72-327 because her employer did not have worker's compensation insurance. The Commission retained jurisdiction to resolve any further issues including those relating to medical benefits, permanent physical impairment, and permanent disability.

On March 13, 1995, Jarvis requested a hearing to establish her permanent benefits. She and the employer then entered into settlement negotiations, and no further action was taken. On December 31, 1998, the Industrial Commission gave notice of its intent to dismiss the proceedings for lack of prosecution. Jarvis requested that the case be retained, and the Commission retained the case on its active calendar.

The hearing to determine Jarvis' permanent benefits was held on April 19, 2000. Because default had been entered against the employer, it again was not allowed to participate in the hearing. The primary issue was the extent of Jarvis' continued pain and her resulting limitations.

The referee found that Jarvis had become dependent upon narcotic medication and that when her treating physicians indicated an intention to discontinue her narcotics, she changed physicians. The psychiatrist who treated Jarvis from July 1991 through August 1998 opined that Jarvis' only chance to return to work was attending an inpatient pain clinic and tapering off her narcotic medications. Jarvis refused several requests that she attend a pain clinic, the primary goal of which would be the discontinuance of her medications. She also failed to cooperate with referrals and other recommended treatments.

When results were within Jarvis' control, clinical testing on examination produced abnormalities, but many tests conflicted with each other and with anatomical reality. A functional capacity evaluation conducted by a physical therapist showed results that were either invalid or below the first percentile. He attributed these results to Jarvis' lack of effort. The referee found that Jarvis was not credible regarding her abilities.

The referee found that Jarvis was medically stable as of March 13, 1995, and recommended that she be awarded total temporary disability benefits to that date. He recommended that the prior order regarding Jarvis' total temporary disability benefits be superseded because she failed to cooperate with her doctors' recommendations. He also found that Jarvis had a permanent impairment of 46% and a permanent disability of 70% as compared to the whole person. The referee found that Jarvis had failed to prove that she was disabled under the odd-lot doctrine. Finally, the referee recommended that Jarvis not receive pain medications after December 21, 2000, unless she successfully completes inpatient treatment for her drug dependence and remains free of pain medications.

The Industrial Commission adopted the findings and recommendations of the referee and entered an order in conformity with them. Jarvis requested that the Commission reconsider several portions of the order, but it denied that request. Jarvis then appealed.

II. STANDARD OF REVIEW

When this Court reviews a decision of the Industrial Commission, it 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. Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000). Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion. Id. Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous. Id. This Court does not weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. Id. Whether a claimant has an impairment and the degree of permanent disability resulting from an industrial injury are questions of fact. Id.

III. ISSUES ON APPEAL

1. Did the Industrial Commission err in holding that the Claimant had failed to prove that she was totally and permanently disabled?

2. Did the Industrial Commission err in conditioning Claimant's entitlement to future pain medication and future medical benefits upon her attending a pain clinic or inpatient program by December 21, 2000?

3. Did the Industrial Commission err in failing to award total temporary disability benefits to the Claimant for the period from April 1990 until October 12, 2000?

4. Did the Industrial Commission err in failing to retain jurisdiction?

5. Did the Industrial Commission err in failing to liquidate Claimant's future benefits?

IV. ANALYSIS

A. Did the Industrial Commission err in holding that the Claimant had failed to prove that she was totally and permanently disabled?

Jarvis does not contest the Commission's findings that she is medically stable and that she has a permanent impairment of 46% of the whole person. She contends, however, that the Commission erred when it failed to find that she was totally and permanently disabled.

A claimant may prove a total and permanent disability in one of two ways. First, the claimant can prove that his permanent impairment together with nonmedical factors totals 100%. Thompson v. Motel 6, 135 Idaho 373, 17 P.3d 874 (2001). A permanent disability rating is an appraisal of the claimant's present and probable future ability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors. Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000); IDAHO CODE § 72-425 (1999). The pertinent nonmedical factors include the nature of the physical disablement, the cumulative effect of multiple injuries, the occupation of the employee, his age at the time of accident, his diminished ability to compete in an open labor market within a reasonable geographical area, the personal and economic circumstances of the employee, and other factors as the Commission may deem relevant. Rivas v. K.C. Logging, 134 Idaho 603, 7 P.3d 212 (2000); IDAHO CODE § 72-430 (1999).

If a claimant fails to establish a 100% disability, he can seek to prove that he is totally and permanently disabled under the odd-lot doctrine. Thompson v. Motel 6, 135 Idaho 373, 17 P.3d 874 (2001). The odd-lot category is for those workers who are so injured that they can perform no services other than those that are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360 (1977). Such workers need not be physically unable to perform any work at all. Id. They are simply not regularly employable in any well-known branch of the labor market absent a business boom, the sympathy of a particular employer or friends, temporary good luck, or a superhuman effort on their part. Id. If the evidence of the medical and nonmedical factors places a claimant prima facie in the odd-lot category, the burden is then on the employer or surety to show that some kind of suitable work is regularly and continuously available to the claimant. Id. A claimant can establish a prima facie case for odd-lot status by showing: (1) that he or she had attempted other types of employment without success; or (2) that h...