Johnson v. Amalgamated Sugar Co.

• Decision Date: 17 June 1985
• Docket Number: No. 14746,14746
• Citation: 702 P.2d 803,108 Idaho 765
• Parties: Keith JOHNSON, Claimant-Respondent, v. AMALGAMATED SUGAR COMPANY, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 803

702 P.2d 803

108 Idaho 765

Keith JOHNSON, Claimant-Respondent, v. AMALGAMATED SUGAR COMPANY, Defendant-Appellant.

No. 14746.

Supreme Court of Idaho.

June 17, 1985.

Henry F. McQuade, Nampa, for defendant-appellant.

Jerry Goicoechea and Lynn M. Luker, Boise, for claimant-respondent.

ON REHEARING

HUNTLEY, Justice.

Following rehearing and further consideration, the Court withdraws its previous Opinion No. 53 of June 1, 1984 and this opinion is substituted therefore.

After twenty-five years of employment claimant Keith Johnson retired from Amalgamated Sugar Company in December, 1978, at the age of sixty-two. During his years of employment, claimant worked as a maintenance mechanic, equipment repairman, and operator of a beet dump shovel.

In the fall of 1979, Amalgamated asked claimant to work during the sugar beet harvest. He did so as a "car man," which involved moving and manipulating railroad cars as they were loaded and unloaded. It is not disputed that during the course of his regular duties as a "car man," the claimant suffered a heart attack as he exerted himself trying to free a car which was lodged on the tracks.

A diagnosis of acute myocardial infarction was made by Dr. Ivyl Wells. Dr. Wells had been claimant's attending physician for the prior twelve to fifteen years and was his treating physician throughout his stay in the hospital and during convalescence. Although Dr. Wells was a family practitioner, he had taken specialized training in cardiology throughout the country. His office was equipped with special cardiac equipment and stress testing equipment was also available.

After having been presented with Mr. Johnson's claim for disability payments arising from this work-related incident, Amalgamated denied liability on the basis that the work was casual employment not covered under workmen's compensation law, and asserted that claimant had not sustained any permanent disability. Upon a stipulated record, the Commission determined in an order dated November 30, 1981, that the employment involved was not casual, and that claimant was covered by workmen's compensation. Defendant has not appealed that ruling.

On July 30, 1982, the Commission entered an award finding that as a result of a work-related heart attack, claimant suffered temporary total disability, incurred medical expenses, had a permanent partial impairment of 50 percent of the whole person, and that claimant's partial disability is equal to this permanent impairment. The Commission also assessed attorney's fees against Amalgamated. Amalgamated appealed. Following a substitution of counsel for Amalgamated, occurring after its brief was filed, Amalgamated made payment of medical expenses and total temporary benefits.

The single dispositive issue on this appeal is whether the Commission erred in its evaluation of the medical testimony as being a proper predicate for an impairment rating of 50 percent of the whole man.

The evidence established that long before the subject "accident" Johnson had developed coronary heart disease, which manifests itself through angina or chest pains during prolonged exertion. (The disease is a partial plugging (occlusion) of the coronary arteries).

In questioning Dr. Wells, counsel never asked the doctor what impairment, if any, resulted from the acute myocardial infarction (heart attack). Rather, the questions put to the doctor were in terms of "heart condition" or "cardiac problems," and did not address heart muscle damage and resulting impairment from the heart attack as distinguished from the impairment existing because of preexisting coronary heart disease. ¹ At no time was Dr. Wells asked nor, did he present testimony as to whether any part of the forty-five to fifty percent disability rating suggested was from the heart attack. Rather the symptomology--continued episodes of chest pain on exertion or emotional upset,--resulting in the fifty percent disability rating awarded by the Commission are symptoms which in fact arise from the coronary artery disease.

At the behest of Amalgamated the claimant was also examined by cardiac specialists Dr. Robert Hay and Dr. Marshall Priest. Both are cardiac specialists. Dr. Hays' testimony included the following (paraphrased and condensed):

1. Assessment is considered from what the patient relates. In this case, Johnson indicated he had occasional episodes of chest pain ² when he exercised vigorously in the cold; under circumstances of normal activity, whether at home or otherwise, he did not have symptoms.

2. In terms of evidences of substantial damage, one important criterian is the extent to which the patient does or does not have cardiac enlargement, an enlarged heart indicating substantial damage. Johnson had a heart of normal size.

3. Was there any evidence of heart failure? That is, were there any circumstances where what he was trying to do exceeded the functional capacity of his heart to perform work. The doctor stated such was not the case.

4. The patient had a treadmill test. He was able to complete the standard Bruce Protocol in eight minutes, and during this test, the heart and lung capacity were actually measured. This was the combined functional integrity to perform work using the standard criteria for measuring his ability to do work. He showed, in terms of the total time of exercise on the treadmill, no functional impairment. In terms of his ability to perform work, as measured by his maximum oxygen uptake capacity, his ability to perform work was slightly greater than average. This test is the single best numerical measure available to determine what a person can or cannot do on a sustained basis. During the exercise test when we stressed him to the point where he could go no further, on that particular instance, he didn't experience chest pain and didn't experience any abnormal cardiac response. (Emphasis supplied.)

Dr. Hay concluded from the testing that Johnson could perform any sedentary activity and any activity requiring moderate manual labor. He could engage in his usual occupation of a scoop operator.

Dr. Hay further testified:

Again, let me add just a note, we presume, and his subsequent history has essentially affirmed, that he clearly has underlying coronary heart disease that he got on his own apart from his work, but it still seems reasonable that the actual event of the heart attack was precipitated by the unusual work that he was performing at the time.... But in his particular circumstance, his heart function in terms of actual pumping capacity has no outward evidences of impairment, the symptoms he has of angina do not relate to his heart pumping capacity, but relate to partial plugging or occlusion of his coronary arteries which lead to the symptom of heart pain in contrast to any symptoms as to an impairment of his heart pumping capacity....

Doctor Priest concluded that Johnson had Class 2 angina pectoris, but again that diagnosis is secondary to the coronary artery disease and not the infarction.

A disability evaluation of claimant was performed by psychologist Gina Wolf. In considering both non-medical factors and the medical evaluations of Drs. Hay and Wells, she concluded that claimant had a disability of 70 percent. Her testimony did not establish the disability as flowing from the infarction.

The Supreme Court will not disturb findings of fact by the Industrial Commission when they are supported by competent, although conflicting, evidence. Lampe v. Zamzow's, Inc., 102 Idaho 126, 626 P.2d 782, 783 (1981); Logsdon v. Northern Iron & Metals Co., 101 Idaho 74, 608 P.2d 877 (1980). We may set aside the Commission's findings of fact only if the record is devoid of substantial competent evidence to support them. Paulson v. Idaho Forest Industries, Inc., 99 Idaho 896, 900, 591 P.2d 143, 147 (1979).

As the recitation of the testimony above demonstrates, this record is devoid of any substantial competent evidence to support the disability award of 50 percent of the whole man as arising from the infarction, and thus we must reverse and remand.

It is possible that the record will support some disability rating, such as possible psychological impairment from the fact of having suffered an infarction, or other bases not addressed in the Commission's findings and order. We therefore remand for the Commission to address that possibility.

One final issue remains, that of the Commission's award of attorney fees to claimant in the proceeding before the Commission. The record establishes that Amalgamated failed to file the Notice of Injury report required of employers by I.C. § 72-602. Commission Conclusion of Law IV reads:

IV

The Employer in this matter is liable for the Claimant's attorney fees. The Employer's defense that the Claimant's employment was casual employment was a frivolous defense. The Commission additionally notes that the Defendants have failed to pay the Claimant any benefits, yet they have stipulated that the Claimant's heart attack was caused by his work, that the Claimant was totally and temporarily disabled for a nine-week period as a result of that heart attack and that the Claimant incurred over $3,000.00 in medical expenses as a direct result of the heart attack. The Employer acted unreasonably in this matter. The Claimant is entitled to an award of attorney fees.

The Commission finds that one-third of the total recovery is a reasonable sum for the services of the Claimant's counsel in this matter.

Our reversal today does not abrogate the basis of the fee award and therefore the award will stand.

Costs to the appellant. No attorney fees on appeal.

DONALDSON, C.J., and SHEPARD and BAKES, JJ., concur. BISTLINE, Justice, dissenting.

I.

Earlier this year in Horner v. Ponderosa Pine Logging, 107 Idaho 1111, 695 P.2d 1250 (1985), another myocardial infarction case, although I concurred in the Court's opinion which upheld an Industrial Commission decision, I wrote separately to...