Johnson v. Boise Cascade Corp.

• Decision Date: 08 July 1969
• Docket Number: No. 10372,10372
• Citation: 456 P.2d 751,93 Idaho 107
• Parties: Dick L. JOHNSON, Claimant-Respondent, v. BOISE CASCADE CORPORATION, and Workmen's Compensation Exchange, Defendants-Appllants.
• Court: Idaho Supreme Court

Page 751

456 P.2d 751

93 Idaho 107

Dick L. JOHNSON, Claimant-Respondent, v. BOISE CASCADE CORPORATION, and Workmen's Compensation Exchange, Defendants-Appllants.

No. 10372.

Supreme Court of Idaho.

July 8, 1969.

Blake, Feeney & Mosman, Lewiston, for defendants-appellants.

Coughlan, Imhoff, Christensen & Lynch, Boise, for claimant-respondent.

SPEAR, Justice.

On August 18, 1964, respondent was employed by Boise Cascade Corporation, one of the appellants herein, at Emmett, Idaho. While stacking lumber, the respondent twisted his back, experiencing immediate pain. The next day respondent visited Wm. B. Jewell, M.D., of Emmett, who prescribed conservative treatment and referred respondent to Jerome K. Burton, M.D., an orthopedic surgeon practicing in Boise, Idaho. Dr. Burton determined that respondent had suffered an upper back sprain and referred him back to Dr. Jewell for further conservative treatment. Thereafter respondent made reasonable progress until January 17, 1965, at which time he had a recurrence of the back pain and was hospitalized. He was put in traction and was referred to Edward Kiefer, M.D., a neurosurgeon of Boise, for counsultation. On February 2, 1965 a notice of injury and claim for compensation was filed with the Industrial Accident Board.

Dr. Kiefer examined the respondent and made a report of his findings on February 15, 1965. At that time it was the doctor's impression that respondent had a possible lumbar disc protrusion at the L-5 level. Dr. Kiefer recommended a myelogram. The myelogram verified the doctor's impression and on February 22, 1965, the respondent was subjected to a lumbar laminectomy and a disc protrusion at the L4-5 interspace was removed.

Thereafter the respondent made an excellent post-operative recovery and by letter under date of June 24, 1965 Dr. Kiefer expressed the opinion that the patient was reemployable, as surgically healed, with a ten per cent permanent partial disability as compared with the loss of one leg at the hip.

On July 6, 1965, respondent and the appellant entered into a compensation agreement which was approved by the Industrial Accident Board on July 16, 1965. An award of specific indemnity was made to the claimant for partial permanent disability equivalent to pen per cent of the loss of a leg at the hip, which amounted to 18 weeks at $30 per week for a total of $540.00.

Respondent returned to work for Boise Cascade Corporation on June 28, 1965. About August 31, 1965 respondent had a recurrence of the back pain, together with pain radiating down the back of his legs. Since Dr. Kiefer was not available respondent was examined by Gordon Daines, M.D., orthopedic surgeon of Boise. Dr. Daines could find no evidence of a recurrence of respondent's disc problem and felt his discomfort was a secondary effect of the previous surgery. X-rays revealed a considerable amount of pantopaque dye scattered throughout the spinal area, apparently as a result of the myelogram performed on respondent prior to surgery on February 22, 1965. Dr. Daines prescribed a support garment and other conservative treatment. The conservative treatment was not successful. Consequently Dr. Kiefer performed a second lumbar laminectomy on January 6, 1966. Disc protrusions were discovered at the L-5 level and the L5-S1.

The respondent did well, post-operatively, and it was recommended that he return to work, provided he did not do any lifting or back straining. Respondent returned to work on April 11, 1966, and on July 18, 1966, Dr. Kiefer fixed respondent's residual disability as being twenty per cent as compared to the loss of one leg at the hip.

On August 8, 1966 respondent and the appellants entered into a second compensation agreement which was approved by the Board on January 11, 1967. The agreement provided that the claimant would be paid total temporary disability compensation from December 30, 1965 to April 11, 1966 and further provided for partial permanent specific indemnity equivalent to twenty per cent as compared to the loss of a leg at the hip, or 36 weeks at $30 per week. Half of the partial permanent indemnity compensation was deemed paid by payments made pursuant to the compensation agreement approved July 16, 1965.

On December 27, 1967 respondent again slipped while attempting to get into a pick-up truck. When he slipped he grabbed for the steering wheel to keep from falling, and experienced immediate pain in the low back. This particular incident had nothing to do with any employment of respondent for it was an off-or-the-job accident.

As a result of the 'pick-up truck' accident, respondent again began experiencing some of the previous symptoms. He again visited Dr. Kiefer who opined that this recent incident had 'aggravated (respomdent's) past back pathology.' Dr. Kiefer recommended hospitalization and myelography to ascertain whether there was recurrent nerve root lesion.

On January 9, 1968, a myelogram was performed, followed by surgery. On January 10, 1968 Dr. Kiefer reported as follows:

'Mr. Johnson * * * had a complete block at about the level of the fourth lumbar vertebra. There were strands of pantopaque noted above the block, which would tend to indicate the presence of arachnoiditis. * * *

'At the time of surgery there was extensive dural scarring, and great pains were taken to avoid any opening of the dura or into the subarachnoid space, because if arachnoiditis existed, this would or could conceivably greatly aggravate the problem. Therefore the dura was not opened; however, at the L-4-5 level after considerable difficulty because of extensive scarring, a lumbar disc was encountered and this was removed without complication. * * *

'I hope that by this procedure, the patient's symptoms will be adequately relieved; however, the problem of arachnoiditis still exists. If the patient's clinical response is such that his relief of pain is sufficient, there need be no further investigation as far as the arachnoiditis. I feel that to establish this diagnosis a biopsy would have to be obtained, and this could be injurious to the patient's eventual recovery.'

Dr. Kiefer further discussed the problem of arachnoiditis in his letter of January 22, 1968:

'* * * the possibility of this patient having arachnoiditis cannot be excluded. The X-rays did appear that it could be that; however, as I explained at that time, making a positive diagnosis of arachnoiditis, would entail opening the dura, and eventually causing this patient to become worse as far as this possibility is concerned. For this reason, only the extra-dural area was explored. * * *'

At the hearing before the Board Dr. Kiefer testified that the arachnoiditis could be either traumatic or chemical in origin. That is, it could be the result of respondent's successive injuries or it could be the result of the successive myelograms which were performed on him. Dr. Kiefer also testified as to the nature of arachnoiditis:

'Q And what is the end result with respect to arachnoiditis? Does it improve, get worse, or stay stationary?

'A Generally speaking arachnoiditis remains, get worse, or stay stationary?

'A Generally speaking arachnoiditis remains, we hope, hopefully stationary. I have seen progressive arachnoiditis and this is not the case in question, because usually if arachnoiditis spreads, it spreads rapidly, and it's a matter of weeks or a few months and there's a progression of the symptoms. I've seen, if it occurs up in the neck, for example, where it causes a respiratory paralysis and eventual death. * * *

'The feeling among those of us who do neurologic surgery, that if you expect arachnoiditis, don't operate on them. In other words, don't go in and try to take a little piece out to prove something. This is the point.

'Q And that was your reason for not taking a biopsy in this case?

'A That's correct.

'Q Are Mr. Johnson's symptoms, which he complained to you about, compatible with these symptoms of arachnoiditis?

'A Yes, they are.'

On cross-examination Dr. Kiefer testified further about arachnoiditis:

'Q Doctor, the way you would medically determine arachnoiditis or probable arachnoiditis would be by a biopsy, is that correct?

'A Yes, that's correct.

'Q And no biopsy was performed?

'A Absolutely not.

'Q There is merely conjecture that he is suffering from such a condition?

'A There is X-ray evidence that this does exist. However, as I stated before, being forewarned of the situation or even a potentiality of this sort of thing, the biopsy would be contraindicated.

'Q And it could be caused by chemical as well as by trauma?

'A That's correct.'

In testifying before the Board Dr. Kiefer stated that he did not see the respondent between July 18, 1966 and January 8, 1968, thus raising the inference that respondent did not have any back trouble from the time of the second laminectomy until the 'pick-up truck' incident. However, Dr. Kiefer did in fact see the respondent during that period, in particular, on June 27, 1967, the same date on which he filed a report with the Board. According to the report, at that time respondent advised the doctor that for the past two months he had been experiencing low back pain and left hip pain, radiating down the left leg and ankle. According to respondent the pain was of a burning character.

After the surgery of January 11, 1968 Dr. Kiefer reported that the disc material removed was 'mushy and degenerated in its appearance.' This observation was substantiated by a pathologist's report, which stated:

'Sections revealed fibrocartilage undergoing marked fragmentation and show many areas of disintegration and degeneration.'

Following a third laminectomy Dr. Kiefer reported on February 2, 1968, that the patient was going to have a protracted convalescence and the doctor recommended that respondent seek concentrated physical therapy. Dr. Kiefer further reported that respondent was having hip and leg pain but not to extent that it existed prior to surgery....