Jensen v. City of Pocatello

• Decision Date: 15 December 2000
• Docket Number: No. 25595.,25595.
• Citation: 135 Idaho 406,18 P.3d 211
• Parties: Bart JENSEN, Claimant-Appellant, Cross-Respondent, v. CITY OF POCATELLO, Employer and State Insurance Fund, Surety, Defendants-Respondents, Cross-Appellants.
• Court: Idaho Supreme Court

18 P.3d 211

135 Idaho 406

Bart JENSEN, Claimant-Appellant, Cross-Respondent, v. CITY OF POCATELLO, Employer and State Insurance Fund, Surety, Defendants-Respondents, Cross-Appellants.

No. 25595.

Supreme Court of Idaho, Pocatello, September 2000 Term.

December 15, 2000.

Rehearing Denied February 15, 2001.

Lowell N. Hawkes, Chtd., Pocatello, for appellant.

Dalling & Dalling, Idaho Falls, for respondents. V. Dean Dalling, Jr. argued.

KIDWELL, Justice.

This workers' compensation case results from injuries received by an employee of the Pocatello Sanitation Department. Bart Jensen suffered total kidney failure two days after ingesting a pain medication provided by his supervisor. The referee for the Industrial Commission found that Jensen had failed to prove that the pain medication was the cause of the kidney failure. The Industrial Commission adopted the recommendation of the referee and Jensen appealed.

I. FACTS AND PROCEDURAL BACKGROUND

The record on appeal indicates that Bart Jensen began working for the City of Pocatello in the sanitation department in 1985. With the exception of a resolved back injury in 1987, Jensen had no significant health problems prior to May 1, 1997. On May 1st 1997, at 7:00 a.m., Jensen reported for work at the Sanitation Department. He was in good health with no noticeable health problems. At 10:00 a.m. Jensen drank a large Coke and was generally well hydrated. At lunch Jensen had a drink of water. He urinated twice prior to 2:00 p.m. Around 2:30 p.m. Jensen returned to the shop. At that time, the floor of the shop was being cleaned with a harsh chemical that can burn the skin and remove paint from metal surfaces, called container soap.

Upon entering the shop, Jensen informed his supervisor, Kirt Malm, that he had a slight headache. The supervisor instructed Jensen to take two "Pain-Off" tablets from the first-aid cabinet in the shop. Jensen had never taken Pain-Off medication prior to this time. Within minutes of taking the medication, Jensen began experiencing severe stomach cramps. The cramping continued and spread to his back below the rib cage and on both sides. Jensen testified that the pains were shooting "across the end of my spine." As the pain spread, Jensen asked a co-worker to call an ambulance.

After retrieving the package of Pain-Off medication, Malm drove Jensen to the hospital in Malm's City truck. En route to the hospital Malm was concerned that he should have called the ambulance because of Jensen's obvious distress. Jensen was admitted to the emergency room. He complained that within five minutes of having taken the Pain-Off he experienced chest tightness, shortness of breath and pain in his lower back. The emergency room doctor, Dr. David Barnett diagnosed Jensen as having a medication reaction. Jensen was given a 50 mg. injection of Benadryl. After a one-hour observation period, Jensen was released from the hospital and was taken home by Malm around 4:30 p.m.

When Jensen returned home, he still felt sick and was not able to keep food down. He took some "Motrin" for pain but vomited it up shortly after taking it. The next day, Jensen's condition continued to deteriorate. He could not keep food or drink down and vomited several times. Jensen did not go to work that day. He continued to feel sicker and weaker as the day progressed, and by evening his wife began to notice that the whites of his eyes had taken on a yellow-orange color. The next morning, Saturday, May 3, 1997, Jensen's wife had difficulty waking him. Jensen's wife took him to see a friend who told her that Jensen looked like he should go immediately to the hospital. While driving home, Jensen and his wife encountered Malm who also noted Jensen's yellow color and recommended that Jensen return to the hospital. Jensen returned home to bathe before returning to the hospital. While cleaning up he urinated for the first time since Thursday afternoon, and noticed that his urine was black.

Jensen returned to the emergency room and was seen this time by Dr. Richard Hearn. Jensen was unable to urinate and the hospital staff was unable to get a urine sample even with a catheter. Urine output was barely increased by three liters of fluid given to Jensen intravenously. The doctor determined that Jensen had suffered a total kidney shutdown. Jensen was treated with hemodialysis and steroids. The following day a device was surgically implanted into Jensen's chest to connect him to the dialysis machine.

Jensen was hospitalized from May 3 to May 9, 1997, with dialysis three days a week. He lost 20 pounds between May 3 and May 23, 1997, and suffered nausea and vomiting. After another course of steroids, Jensen's kidney function eventually returned. Jensen began to function without dialysis in June of 1997. On July 14, 1997, Jensen was released to return to work without restrictions. Jensen returned to work on July 18, 1997, but complained of severe fatigue.

Butch Chandler, the Sanitation Operation Supervisor, had discarded the remaining Pain-Off medication on May 1st or 2nd. It is undetermined in the record whether any Pain-Off tablets from the same box were preserved.

On December 23, 1997, Jensen filed a workers' compensation complaint with the Industrial Commission. The City of Pocatello and its surety the Idaho State Insurance Fund, (herein collectively the City) answered the complaint on January 8, 1998, denying that the injury resulted from a work-related accident.

On July 9, 1998, Jensen was examined by Dr. Nagraj Narasimhan at the request of the City. Dr. Narasimhan concluded that there was no causal connection between Jensen's ingestion of Pain-Off and his illness.

On September 3, 1998, a hearing was held before the Industrial Commission's referee. At the hearing, Jensen, his wife, Malm and Chandler all testified. The deposition of Dr. Hearn was taken on September 9, 1998, and that of Dr. Narasimhan was taken on September 15, 1998. Both depositions were submitted to the referee that same month.

The referee filed his Findings of Fact, Conclusions of Law and Recommendation on April 19, 1999. The referee concluded that although Jensen had proven that his "medical reaction [was] causally related to his work," Jensen had "failed to establish his renal failure [was] causally related to his work." In his findings, the referee first considered that testimony of the City's expert Dr. Narasimhan. After discussing the many alternative theories for Jensen's illness produced by Dr. Narasimhan, the referee concluded that "Defendants' alternate causation theories are unpersuasive."

The referee then discussed the testimony of Dr. Hearn. Dr. Hearn testified that "In the list of my speculation of what might have caused the renal failure, then [the Pain-Off] would be at the top of that list of my speculation. I don't know of anything that would be higher, but I have no evidence to support that it was the cause." However, Dr. Hearn testified that because chemical testing of the Pain-Off was impossible (because it had been destroyed by Chandler) he was not able to determine to a reasonable degree of medical probability that the Pain-Off had caused Jensen's renal failure.

The referee concluded:

The non-expert evidence and much of the expert evidence herein indicate a causal relationship between Claimant's ingestion of Pain-Off at work and his renal failure. Defendants' alternate causation theories are unpersuasive. . . . [I]nasmuch as Dr. Hearn repeatedly and expressly refused to opine to a reasonable degree of medical probability that Claimant's renal failure was caused by his Pain-Off ingestion and/or solvent exposure at work, Hart [v. Kaman Bearing & Supply, 130 Idaho 296, 939 P.2d 1375 (1997)] requires the conclusion that Claimant has failed to establish by expert medical testimony that his renal failure was work-related. (R. p. 29)

The referee then recommended that Jensen be awarded damages for the medical reaction of May 1st, but denied damages resulting from the subsequent kidney (renal) failure. The Industrial Commission adopted the findings and conclusions of the referee on April 19, 1999. Both Jensen and the City appeal from the order of the Industrial Commission.

II. STANDARD OF REVIEW

When this Court reviews a decision from 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. Ogden v. Thompson, 128 Idaho 87, 88, 910 P.2d 759, 760 (1996). Substantial and competent evidence is "relevant evidence which a reasonable mind might accept to support a conclusion." Boise Orthopedic Clinic v. Idaho State Ins. Fund (In re Wilson), 128 Idaho 161, 164, 911 P.2d 754, 757 (1996).

Whether an injury arose out of the course of employment is a question of fact to be determined by the Commission. Kessler ex. rel. Kessler v. Payette County, 129 Idaho 855, 859, 934 P.2d 28, 32 (1997). The Commission's conclusions on the credibility and weight of evidence will not be disturbed unless the conclusions are clearly erroneous. Zapata v. J.R. Simplot Co., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999). On appeal, this Court is not to re-weigh the evidence or consider whether it would have reached a different conclusion from the evidence presented. See Warden v. Idaho Timber Corp., 132 Idaho 454, 457, 974 P.2d 506, 509 (1999).

III. ANALYSIS

A. The Industrial Commission Referee Correctly Characterized Dr. Hearn's Testimony.

The City claims that the following findings of fact made by the Industrial Commission referee are not supported by substantial and competent evidence.

The Industrial Commission referee found in its finding of fact number 29 that:

Dr. Hearn testified that acute renal failure in a non-hospitalized individual is most likely caused by autoimmune disease, infection, or ingestion of a toxic food or medicine. He testified that there was no evidence of

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